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[2014] ZAGPJHC 350
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Perumal v Bhyat and Others (19691/2013, 19059/2013) [2014] ZAGPJHC 350 (25 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 19691/2013
And
19059/2013
DATE:
25 MARCH 2014
In the matter
between:
IRVIN
PERUMAL
....................................................
Respondent/Applicant
And
SHAHEEN
BHYAT
...........................................
First
Applicant/Respondent
DUNNEWELS BODY
CORPORATE
............
Second
Applicant/Respondent
SANNETTE
ERASMUS
...................................
Third
Applicant/Respondent
JANINE
TARGETT
…...................................
Fourth
Applicant/Respondent
OLIETE
PERESTRELO
....................................
Fifth
Applicant/Respondent
VHUMBANAI
PROPERTY SOLUTIONS
.........
Sixth
Applicant/Respondent
J U
D G M E N T
THE RANCHOD
JUDGMENT
MAKUME, J:
[1] In this
application the applicants seek an order rescinding and setting aside
the court order handed down against the applicants
by the learned
Judge Ranchod on the 12th June 2013 plus costs on an attorney and
client scale.
THE BACKGROUND
LEADING TO THIS APPLICATION
[2] On the 6th June
2013 the respondent served two urgent applications on the applicants.
In the applications the respondent sought
amongst others an order
declaring an earlier judgment by Spilg J a nullity.
[3] On receipt of
the two applications the applicants addressed and hand delivered a
letter to the respondent on the 7th June 2013.
I deem it appropriate
to quote the letter in full as it has a great bearing on the outcome
of this application.
[4] The letter reads
as follows:
“(i) We refer
to the above matter as well as to your Urgent Applications served
upon our offices under Case Numbers 19059/13
and 19691/13.
(ii) Without
conceding to the fact the relief sought in your Notice of Motion
herein are competent, we advise that your applications
are simply not
urgent, nor do you make out a case as to why the ordinary time limits
prescribed in the Uniform Rules of Court ought
to be condoned. The
time limits which you have defined for the filing of affidavits
herein in circumstances when your matters are
simply not urgent, does
not afford us a sufficient time within which to file Answering
Affidavits herein.
(iii) In the
circumstances we request that your Urgent Application be removed from
the roll forthwith by Notice and the ordinary
time limits prescribed
for the filing of Affidavits in terms of the Uniform Rules of Court
be applicable to the Applications.
Once the papers have been filed
herein, either party may thereafter attend to set the matter down for
hearing on the ordinary Motion
Roll.
(iv) In the event of
you refusing to remove the matter from the roll as aforesaid will we
have no choice but to attend at Court
in order to oppose your
Application and to seek a punitive costs order against you.
(v) We await to hear
from you as a matter of extreme urgency.”
[5] Simultaneously
with this letter the applicants delivered a notice to oppose the
urgent application. It is common cause that
the applications were
set down for hearing in the urgent court on the 12th June 2013.
[6] On the 10th June
2013 the respondent served on the applicants two notices of
withdrawal under both case numbers. In the notices
the respondent
was removing the matters from the roll of the urgent court.
[7] The notices of
withdrawal from the urgent court could be interpreted to mean that
the respondent will reinstate the matter on
the normal motion court
roll for which he will give notice of set down after close of
pleadings.
[8] In the notice of
withdrawal the respondent did not tender wasted costs. This prompted
the applicants to address a letter to
the respondent on the 11th June
2013 in which letter the applicants called upon the respondent to
tender wasted costs failing which
the applicants threatened to enrol
both applications and seek a punitive costs order. The applicants
hand delivered the letter
to the respondent personally at 15h15 on
the 11th June 2013. The respondent refused to sign for receipt
thereof. However the letter
was left in his possession after he had
read it in the presence of one Dagan James Rego a candidate attorney
in the employment
of applicants’ attorneys.
[9] It is common
knowledge that the applicants received no response to the letter.
However what was settled in the mind of the applicants’
attorneys is that the two applications were off the roll and that all
that remained was the issue of costs.
[10] Unbeknown to
the applicants and their attorneys the respondent proceeded to court
on the 12th June 2013 and obtained an order
effectively setting aside
the costs order granted by Spilg J against the Respondent in the
original application by them during
June 2013.
[11] It is evident
that when Ranchod J dealt with the respondent’s application
there was no notice of withdrawal of the applications
from the urgent
roll neither was the applicants’ notice of intention to oppose.
The learned Judge was made to believe that
the matter was unopposed
and he accordingly proceeded to grant the order by default. It is
trite that a request for default judgment
is in the nature of an ex
parte application therefor requiring an applicant to make full
disclosure of all relevant factors. The
respondent did not inform the
Honourable Ranchod that he had notified the applicants that he is
withdrawing the applications from
the roll. The respondent
accordingly misled the court.
[12] I am of the
view that had the learned Ranchod J been made aware that a notice to
oppose had been filed followed by a notice
of withdrawal he would not
have granted the order that he did on the 12 June 2013. His order
was accordingly erroneously granted
in the absence of the applicants
and stands to be set aside in terms of Rule 42(1)(a).
[13] In the matter
of Topol and Others v L S Group Management Services (Pty) Ltd
1988
(1) SA 639
(W) applicants there brought application for rescission of
an order granted in their absence by Stafford J dismissing an
application
by them for leave to appeal. It appeared that the
Registrar’s written notice in terms of Rule 49(1)(d) had
reached the office
of the applicants’ attorney timeously but
had escaped his attention due to his ill-health at the time. The
court found that
the applicants had no knowledge of the fact that the
application had been enrolled. It analysed the proceedings and
concluded
at page 648B that Stafford J had proceeded on the premise
that notice had been sent to the parties and that the applicants
despite
having knowledge of the hearing were in default. The court
held that the fact that the premise proved to be wrong meant that
Stafford
J in granting the judgment had acted erroneously within the
meaning of Rule 42(1)(a).
[14] Erasmus J in
the matter of Bakoven Ltd v G J Howes (Pty) Ltd
1992 (2) SA 466
(E)
at 471E says the following:
“Rule 42(1)(a)
it seems to me is a procedural step designated to correct
expeditiously and obviously wrong judgments or orders.
Once the
applicant can point to an error in the proceedings he is without
further ado entitled to rescission.”
[15] In the present
matter the error lies in the act of withholding information from the
judge thus channelling the court to believe
in an untrue state of
facts namely that the matter had been removed from the roll and that
it was in fact being defended.
[16] I am satisfied
that the applicants have made a case for rescission in terms of Rule
42 of the Rules of Court. The respondent’s
argument in opposing
the application is far-fetched and legally untenable and requires no
further consideration. I am also persuaded
that in withholding the
information from the court which was within his knowledge the
respondent acted maliciously and his conduct
deserves to be visited
by a punitive of costs order.
[17] The order I
make is as follows:
17.1 The application
is granted.
17.2 The court order
by the learned Judge Ranchod of the 12th June 2013 is hereby set
aside.
17.3 The respondent
is ordered to pay the applicants’ taxed costs on an attorney
and client scale.
M A MAKUME
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPLICANT:IN
PERSON
21 DUNNEWELS
COMPLEX
7 MAIDEN STREET
ROBINDALE
RANDBURG
RESPONDENT: ADV G
STEYN
INSTRUCTED
BY: BICCARI,BOLLO&MARIANO ATTORNEYS
Tel: (011)
628-9300
Fax:
(011)788-1736
Ref: M
Hinz/rv/RD1873
DATE OF HEARING:
3RD MARCH 2014
DATE OF JUDGMENT:
25TH MARCH 2014