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[2015] ZAGPJHC 268
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Ekurhuleni Metropolitan Municipality v African Moon Trading 52 CC (14/24467) [2015] ZAGPJHC 268 (11 November 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 14/24467
DATE: 11 NOVEMBER 2015
In the matter between:
EKURHULENI METROPOLITAN
MUNICIPALITY
........................................................
Applicant
And
AFRICAN MOON TRADING 52
CC
..................................................................................
Respondent
J U D G M E N T
MASHILE J:
[1] The Applicant seeks to rescind and
set aside a judgment of this court granted in default in favour of
the Respondent on 23 January
2015. The amount of the judgment is the
sum of R10 592 339.96. The application is brought in terms of Rule
42(1)(a), 31(2)(b)
and common law. The Applicant’s attention
was drawn to the judgment against it on 10 February 2015 when the
Sheriff attended
at its premises to execute the judgment.
[2] For purposes of the common law, the
application was brought within a reasonable time from the date on
which the Applicant acquired
knowledge of it. Furthermore, the
Applicant launched the application within the period envisaged in
Rule 31(2)(b). There are
therefore no issues of lack of compliance
in so far as both the common law and rules are concerned.
[3] Perhaps I should mention that there
were other ancillary minor applications dealing mainly with cosmetic
procedural matters.
The parties were urged to settle those such that
this court became seized with this application only.
[4] The facts from which this
application emanates are briefly that the Respondent was awarded a
tender. The estimated value of
the tender was R62 745 188.50. After
the exhaustion of the amount of the tender, the Applicant, however,
continued to engage the
Respondent to do further work under the same
tender and paid for the service that the Respondent rendered.
Needless to add that
the estimated tender amount was exceeded by a
considerable amount.
[5] When the Applicant realized that
the tender amount had been exceeded, it refused to pay on the basis
that its employees should
not have authorised any amount beyond the
estimated tender amount. This prompted the Respondent to institute
an action against
the Applicant for services rendered. The Applicant
defended the action and on 23 October 2013 it launched an application
in terms
of Rule 35(12) wherein it required the Respondent to produce
10 documents referred to in the Respondent’s founding papers
for inspection.
[6] On 10 November 2013, the Respondent
partially complied with the Applicant’s request to the extent
that it did invite the
Applicant to its attorney’s offices to
inspect and/or make copies of 5 of the 10 of the documents that the
Applicant had
requested and declined to furnish the balance. The
Applicant was not satisfied with the answer that it received from the
Respondent
and for that reason the parties began exchanging
correspondence with the Applicant persisting on the Respondent making
the balance
of the documents available for inspection and/or copy.
At the time when the judgment was granted the Rule 35(12) application
was
still pending.
[7] This application to rescind the
judgment must be understood against the backdrop of the facts
described above. The Applicant
asserts that the judgment is
rescindable in terms of Rule 42(1)(a) or 31(2)(b) or the common law.
It has set out to establish
this in its papers. I shall discuss the
three basis in the order in which they appear. It makes sense to
begin with Rule 42(1)(b)
because it could be dispositive of the whole
matter if I find that the judgment was indeed granted in error.
[8] The Respondent has contended that
it had complied with the Applicant’s request but a perusal of
the Respondent’s
answer thereto demonstrates that it had left
approximately four documents from the list of documents that the
Applicant needed.
The Applicant persists that it did not receive all
the documents that it needed hence it went the route of compelling
the Respondent
to do so.
[9] The court is to decide whether the
Respondent was entitled to judgment against the Applicant while the
Rule 35(12) application
was still pending. Should I find that the
correct procedure would have been to dispose of the Rule 35(12)
first, logically the
judgment would have been erroneously sought and
erroneously granted.
[10] Rule 42(1)(b) provides:
“(1) 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.”
[11] It is trite that where a court
finds that a judgment was sought and granted by mistake, the Court
must immediately rescind
and set aside such judgment. In that event
the court will not require an applicant to proceed to show good cause
why the judgment
should be rescinded or give reasonable explanation
why he allowed a default judgment to be taken against him. See in
this regard,
the judgment of this court in De Sousa v Kerr
1978 (3)
SA 635
(W) where the court quoted the case of De Wet and Others v
Western Bank Ltd
1977 (4) SA 770
at 777, with approval. It was held
in the De Wet & Others case supra that if the requisites of Rule
42(1) are present, a Court
is empowered to grant the relief of
setting aside a judgment, notwithstanding the fact that good cause is
not shown.
[12] In Hardroad (Pty) Ltd v Oribi
Motors (Pty) Ltd
1977 (2) SA 576
(W) this court held that Rule
42(1)(a) does not specifically require that good cause be shown
before a judgment can be rescinded
or varied. It was further held
that pparagraph (a), however, requires that the judgment must have
been erroneously sought or “erroneously
granted.
See also Topol and Others v LS Group
Management Services (Pty) Ltd
1988 (1) SA 639
(W).
[14] Insofar as Rule 35(12) is
concerned, it was held in Unilever PLC v Polagric (Pty) Ltd
2001 (2)
SA 329
(Q) that the litigant who has delivered a notice in terms of
Rule 35(12) cannot be told to plead before seeing the documents
requested
in terms of the sub rule or to wait for pleadings to close
before being provided with such documents.
[15] It is common cause that the
Respondent did on one occasion successfully set the main application
down on an unopposed basis
for hearing on 28 November 2013. The
application was removed from the unopposed roll as the presiding
judge directed that the Rule
32(12) application had to be decided
before the main application could be heard. When the Respondent set
the main application
down for hearing and subsequently obtained
judgment against the Applicant for the second time, it appears that
it erroneously believed
that it had complied with the Rule 35(12)
application and that the Applicant was in default with the delivery
of its answering
affidavit.
[16] For as long as there is no order
or decision on the fate of the Rule 35(12) application, it cannot be
said to have been finalised.
Accordingly, no further step towards
the conclusion of the main appliccation should have been allowed to
occur.
[17] I am unable to decipher what
persuaded the presiding judge to grant the default judgment the
non-compliance with the Rule 35(12)
notwithstanding. That said
though, it is apparent that the presiding judge must have thought
that the Rule 35(12) was out of the
way and that the Applicant had
failed to deliver its answering affidavit. It is obvious that had he
known that the Rule 35(12)
application was still outstanding he would
not have granted the judgment. I agree therefore that the judgment
was indeed granted
in error as envisaged in Rule 42(1)(a) and the
cases to which I have referred above.
[18] The granting of the judgment was
in error and in the circumstances there is no need to canvass further
requisites for the rescission
of default judgments such as good cause
and reasonable explanation why no steps were taken to prevent it
being entered against
the party concerned. In the premise the
application must succeed. I need to point out that this outcome has
nothing to do with
the merits of the main application. It is purely
based on the fact that the judgment was granted in error.
[17] That said, the court makes the
following order:
1. The judgment entered against the
Applicant is rescinded and set aside;
2. The Rule 35(12) application must be
finalized prior to the Applicant delivering its answering affidavit;
3. The Respondent is to pay the costs
of this application including those of a junior counsel, if any.
B MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for the Applicant: Adv K
Tsatsawane
Adv. X Mofokeng
Instructed by: Bongani Khoza &
Associates Inc.
Counsel for the Respondent: Adv R S
Mothibe
Instructed by: P L Samuels Attorneys
Date of hearing: 28 October 2015
Date of delivery of Judgment: 11
NOVEMBER 2015