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[2014] ZAGPJHC 282
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Hartley and Another v Firstrand Bank Limited and Another (27612/2010) [2014] ZAGPJHC 282 (24 October 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG HIGH COURT
(LOCAL DIVISION
JOHANNESBURG)
CASE
NO: 27612/2010
DATE:
24 OCTOBER 2014
In
the matter between
HARTLEY,
ROEGSHAAN
..................................................
FIRST
APPLLICANT
HARTLEY,
SAFIYA
..........................................................
SECOND
APPLICANT
And
FIRSTRAND
BANK LIMITED
........................................
FIRST
RESPONDENT
MATSOBANE
MAROKANE
.......................................
SECOND
RESPONDENT
J
U D G M E N T
MOSIKATSANA AJ:
Introduction:
[1]
This is an application to declare the default judgment granted
against the applicants in the respondent’s favour on 7
September 2010 and all attachments and sales in execution pursuant to
such judgment as void. The applicants rely on Uniform Rule
of Court
42(1)(a) The first respondent opposes the application requesting that
the application be dismissed.
Common
Cause Facts:
[2] The following
facts are common cause, or not seriously in dispute. The first
respondent, First Rand Bank Limited launched application
proceedings
against the first and second applicants who are married to each other
in community of property, for payment of R 759 741.02
with
interest thereon, at the rate of 10.95% per annum, calculated from
the 30 January, 2010 and, for an order declaring their
property at
Erf 3278 Ennerdale Extension 3 Township executable.
[3] After service
was effected allegedly at the applicants’ chosen
domicilium
citandi et
executandi, notice of intention to oppose was served
shortly thereafter. However, the applicants failed to file answering
affidavits
and default judgment was granted on 07 September, 2010
against the applicants.
[4] Execution on the
judgment was stayed, pursuant to a payment arrangement which had been
concluded with the applicants on or about
18 November 2010. The
applicants having failed to honour the terms of the payment
arrangement, the property was sold at a sale
in execution held on 31
January 2013.
Disputed
Facts:
[5] The applicants
contend that the Court which granted the default judgment lacked
personal jurisdiction over them, in that proper
service, was not
effected at their chosen
domicilium
. The applicants contend
that the Sheriff’s return of service, indicates that the
process was not personally served but was
affixed to the door at 3278
Poseidon Street, Ennerdale Extension 3, which is not the applicants’
chosen domicilum and not
at 3267 Phosphorous street, Migson Manor,
Lenasia which is their chosen
domicilium
.
[6]
The applicants contend that because there was no proper service, the
default judgment was erroneously granted and that this
is a proper
case for rescission in terms of Rule 42(1)(a).
[1]
[7]
The applicants further contend that the fact that they knew of the
application that was defectively served and that they in
turn served
notice of intention to oppose, cannot remedy the defective service.
To this end, the applicants rely on the dictum
of Horn AJ in
First
National Bank of SA Ltd v Ganyesa Bottle Store (Pty) Ltd and Others
and First National Bank of SA Ltd v Schweizer Drankwinkel
(Pty) Ltd
and Another
[2]
where
it was stated that:
‘
The
issue of a summons is the initiation process of an action and has
certain specific consequences, one of which is that it must
be
served. The methods of service are prescribed in the Rules. Mere
“knowledge” of the issue of a summons is not service
and
a plaintiff is not relieved of his obligation to follow the
prescribed Rules.’
[3]
[8] First respondent
opposes the rescission application on the basis that:
8.1
The applicants do not have a
bona fide
defence to first
respondent’s claim;
8.2
the argument relating to irregular service is without merit in that
the application had been properly served at the applicants’
chosen
domicilium
;
8.3
the rescission application was not brought timeously having delayed
for a period of nearly three years from the date when default
judgment was granted; and
8.4
the applicants acquiesced in the judgment by entering into a payment
arrangement about three months after judgment had been
granted.
[9] The first
respondent contends that, the applicants having failed to make out a
case for rescission or to demonstrate good cause
for the judgment to
be rescinded, it prays for an order dismissing the rescission
application with costs.
Issues for
Determination
[10] The issues for
determination are whether the Court’s lack of personal
jurisdiction over the applicants due to irregular
service is
dispositive of the matter or whether the applicants’
acquiescence deprives them of the right to seek rescission.
Court’s
Lack of Personal Jurisdiction due to Irregular Service
[11] Service of
process is an essential step in initiating a civil lawsuit. In fact,
service of process is so essential in a lawsuit,
that if there is no
service, or if it is not performed properly, a lawsuit cannot
proceed. Service of process is essential in that
it establishes that
the court hearing the lawsuit has personal jurisdiction over the
applicants in this matter.
[12]
In
First
National
Bank
of SA Ltd v Ganyesa Bottle Store (Pty) Ltd and others; First National
Bank of SA v Schweitzer Drankwinkel (Pty) Ltd and Another.
[4]
It was decided that where the service of process is defective as in
the instant case, the judgment and any other process which
is a
corollary of the judgment obtained is a nullity. The above is
decision quite compelling as it unequivocally reinforces the
notion
of
audi
alteram
partem,
however, in my view, the above decision will not avail the applicants
in this case, as they acquiesced in the default judgment
obtained on
7 September, 2010 as a consequence of the alleged defective service.
The Doctrine
of Peremption
[13] According to
the common law doctrine of peremption, a party who acquiesces to a
judgment cannot subsequently seek to challenge
the judgment to which
he has acquiesced. This doctrine is founded on the logic that no
person may be allowed to opportunistically
endorse two conflicting
positions or to both approbate and reprobate, or to blow hot and
cold. It may even be said that a party
will not be allowed to have
her cake and eat it too.
[14]
The doctrine of peremption was enunciated in
Hlatswayo
v Mare and Deas
[5]
where
Lord De Villiers held that ‘where a man has two courses of
action open to him and he unequivocally takes one he cannot
afterwards turn back and take the other.’ Similarly, in
Dabner
v South African Railways and Harbours
[6]
Innes
CJ stated:
‘
The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct
of an unsuccessful litigant is such as to point indubitably and
necessarily to the conclusion that he does not intend to attack
the
judgment, then he is held to have acquiesced in it. But the conduct
relied upon must be unequivocal and must be inconsistent
with any
intention to appeal. And the
onus
of establishing that position
is upon the party alleging it. In doubtful cases acquiescence, like
waiver, must be held non-proven.’
[15] Applying the
doctrine of peremption to the facts of this case, it is
incontrovertible that the applicants by their own conduct
acquiesced
to the default judgment obtained against them on 7 September, 2010 by
entering into a payment arrangement three months
after judgment had
been granted. Such acquiescence is fatal to the success of a
rescission application.
Order
[16] In the result
the following order is made:
16.1 The application
that default judgment granted against the applicants in the first
respondent’s favour on 7 September
2010 and all attachments and
sales in execution pursuant to such judgment be rescinded is
dismissed.
16.2 The applicants
are ordered to pay the costs of the application.
T
MOSIKATSANA
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
COUNSEL
FOR THE APPLICANTS UNREPRESENTED
COUNSEL
FOR FIRST RESPONDENTA LAMPRECHT
INSTRUCTED
BY BEZUIDENHOUT VAN ZYL & ASSOCIATES
COUNSEL
FOR SECOND RESPONDENT UNREPRESENTED
DATE
OF HEARING 24 MARCH 2014
DATE
OF JUDGMENT 24 OCTOBER 2014
[1]
Rule
42(1)(a) stipulates that: ‘ The court may, in addition to any
other powers it may have,
mero
motu
or
upon the application of any party affected, rescind or vary: (a) An
order or judgment erroneously sought or erroneously granted
in the
absence of any party affected thereby;’.
[2]
1988
(4) SA 565 (N)
[3]
Supra
note 2 at 568 B-C.
[4]
Supra
note 2. See also
Dada
v Dada
1977
92) SA 287
(T);
Vidavsky
v Body Corporate of Sunhill Villas
2005
(5) SA 200
(SCA);
D
F Scott (EP) (Pty) Ltd v Golden Valley Supermarket
2002
(6) SA 297
(SCA);
Suid
Afrikaanse Sentraale Ko-Operatiewe Graanmaatskappy Bpk v Shifren and
Others and the Taxing Master
1964
(1) SA 162
(0) In all these cases, either no summons, applications
or notification of arbitration hearings were served on the
applicants
or defendants when judgments were obtained against them.
The courts uniformly confirmed that judgments obtained in the
absence
of service, or proper service, were a nullity.
[5]
1912
AD 242.
[6]
1920
AD 583
at 594-5