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[2015] ZAGPJHC 58
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Memeza v Ninos Group (Pty) Ltd (29635/2012) [2015] ZAGPJHC 58 (19 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
29635/2012
DATE:
19 MARCH 2015
In
the matter between:
GRATITUDE
MZIWAMANKWALI
MEMEZA
...................................................................
Applicant
And
NINO’S
GROUP (PTY)
LTD
................................................................................................
Respondent
J U D G M E N T
MALI
AJ
[1]
This is an application for rescission of default judgment granted by
the Registrar of this Honourable court on 10 July 2013.The
respondent
obtained the default judgment on the basis that the applicant failed
to enter appearance to defend.
[2]
It was argued on behalf of the applicant that the applicant was not
served with summons. This is despite the sheriff’s
return of
service indicating that the summons was served on his wife at the
applicant’s address. The applicant became aware
of the default
judgment on 4 August 2013.
[3]
The cause of action is a breach of a written lease by the applicant.
The lease agreement was annexed to the affidavit filed
with the
Registrar. The applicant denies having entered into a lease agreement
with the respondent whether written nor verbal.
The applicant is a
member of Sipolilo Close Corporation (“cc”), an entity
that entered into a franchise agreement with
the respondent and not a
lease agreement.
[4]
It was further argued that respondent’s claim is not
liquidated as the respondent alleges that the applicant undertook
to
make payment of the amount of R800000.00 on behalf of the CC. However
the default judgment obtained was for the amount of R340000.00.
[5]
Counsel for the respondent argued that summons was served on the
applicant’s wife Ms Zinzile Zungu. The respondent conceded
that
the affidavit placed before the registrar had erroneously disclosed
the cause of action as a breach of a written lease agreement;
accordingly that judgment was taken erroneously. Be that as it may,
Mr Stylianou Counsel for the respondent persisted in opposing
the
application. He stated that the applicant had verbally acknowledged
the arrear rental by the cc and agreed to make payments.
He further
explained why the judgment was not taken on the original amount and
insisted that the claim is liquidated.
[6]
The requirements for rescission of default judgment in terms of Rule
31 (2) (b) are as follows:
(a)
The applicant must give a reasonable explanation of his default;
(b)
The application must be bona fide and not made with the intention of
merely delaying the plaintiff’s claim;
(c)
The applicant must show that he has a bona fide defence to the
plaintiff’s claim.
[7]
In
Harris
v Absa Bank Ltd t/a
[1]
the
court held that
“
while
wilful default on the part of the applicant is not a substantive
compulsory ground for refusal of an application for rescission
, the
reason for the applicant’s default remains an essential
ingredient of the good cause to be shown”.
[8]
In
RGS Properties ( Pty) Ethekwini Municipality
[2]
(“RGS”),
Acting Judge Ngwenya as he then was, citing
Naidoo
v Cavendish Transport Co (Pty) Ltd
[3]
held
that the court should not scrutinise too closely whether the defence
is well founded, as long as prima facie there appears
to the court
sufficient reasons for allowing the defendant to lay before court the
facts he thinks necessary to meet the plaintiff’s
claim and
that where a defendant has never clearly acquiesced in the
plaintiff’s claim but persisted in disputing it, the
court
should be slow to refuse him entirely an opportunity to his defence
being heard. The principles enunciated in Naidoo above
have been
followed in a number of cases. See for example
Galp
v Tansley N.O.
[4]
[9]
The Judge in RGS above further stated
“
I
may add to this principle that judgment by defendant is inherently
contrary to the provisions of section 34 of the Constitution.
The
section provides that everyone has a right to have any dispute than
can be resolved by the application of law decided in a
fair public
hearing before a Court or, where appropriate another independent and
impartial tribunal or forum. Therefore in my view
in weighing up
facts for rescission, the court must on the one hand balance the need
for an individual who is entitled to have
access to Court and have
his or her dispute resolved in a fair public hearing against those
facts which led to the default judgment
being granted in the first
instance………the nature of the defence advanced
must not be such that it “prima
facie” amounts to nothing
more than a delaying tactic on the part of the applicant”.
[10]
In
Lazarus
v Nedcor Bank Ltd
[5]
it was held that the object of rescinding a judgment is to restore a
chance to air a real dispute. It is trite law that the applicant
must
show that he has a bona fide defence to the plaintiff’s claim.
[11]
With the above principles in mind I now consider the defence raised
by the applicant against the contentions by the respondent.
The
applicant stated that there was no proper service of summons.
Secondly the applicant denied that he entered into a lease agreement
with the respondent whether written or verbal, a fact which has been
conceded by the respondent. The applicant further stated that
he
never acquiesced to the debt of the CC towards the respondent whether
liquidated or not.
[12]
In my well considered view, what the applicant has stated requires to
be tested by the trial court and not this court. As to
the propriety
or impropriety of the service the issue now becomes academic. I am
satisfied that the applicant has a bona fide defence
and has raised a
triable issue. The application meets the requirements of Rule
31(2)(b) of the Superior Court Pratice.
[13]
I accordingly make the following order.
13.1.
The application is granted.
13.2.
The Default judgment dated 10 July 2013 is set aside.
13.3
The respondent is to pay the costs of the application.
MALI AJ
ACTING JUDGE OF
THE HIGH COURT OFSOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Counsel
for the Applicant: Adv A. Mkhabela
Instructed
by: Manugeni Incorporated
Counsel
for the Respondent: Adv K. Ioulianou
Instructed
by: Kokkoris Attorneys
Date
of Hearing: 2 March 2015
Date
of Judgment: 19 March 2015
[1]
[1]
2006
(4) SA 527
[2]
2010
(6) SA 572
[3]
1956
(3) SA 244 (D)
[4]
1966(4)
SA 560
[5]
1999
(2) SA 782