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[2016] ZAGPJHC 33
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Van Tonder v Bailiff; In re: Bailiff v JPVT Property Developments CC and Others (A5090/14) [2016] ZAGPJHC 33 (26 February 2016)
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REPUBLIC
OF
SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEAL CASE NO: A5090/14
GLD
CASE NO: 36282/2010
In the matter
between:
JEAN-PIERRE
VAN
TONDER
Appellant
(Second Defendant
in the Court
a quo
)
and
PEERS
DONALD EILERTSEN
BAILIFF
Respondent
(Plaintiff in the
Court
a quo
)
In re:
PEERS
DONALD EILERTSEN
BAILIFF
Plaintiff/Respondent
and
JPVT
PROPERTY DEVELOPMENTS
CC
First
Defendant
JEAN-PIERRE
VAN
TONDER
Defendant/Applicant
BRENDAN
DAVID
PRITCHARD
Third
Defendant
SUMMARY
Practice and
procedure – appeal against refusal of rescission of default
judgment – rescission of default judgment on
grounds that
plaintiff’s amended particulars of claim not perfected at time
of application for default judgment; that the
National Credit Act 34
of 2005 (“
the NCA
”),
applied retrospectively; and that defendant did not receive summons
served at chosen
domicilium citandi et
executandi
– condonation for late
launching of application for rescission of judgment –
requirements for successful condonation
– inordinate delay in
applying for both condonation and rescission – the NCA and
applicability of retrospectivity not
proved – application for
condonation refused – appeal dismissed with costs.
J U D G M E N T
MOSHIDI,
J (M L MAILULA AND M P TSOKA CONCURRING
):
INTRODUCTION
[1] The appellant was the second
defendant in the action instituted by the plaintiff (respondent) in
the court
a quo
against the appellant and two other
defendants, i.e. the first defendant and the third defendant,
respectively. I shall henceforth,
and for ease of convenience,
refer to the parties herein as “
the appellant
”,
“
the respondent
”, “
the first defendant
”
and “
the third defendant
”, respectively.
[2] The appellant
appeals, with the leave of the court
a
quo
, against the judgment and order of
Cook AJ (“
the court a quo
”)
in dismissing his application for rescission of the default judgment
on 30 September 2014. The default judgment was
granted by
Coetzee J on 19 July 2011. In terms of the default judgment,
the appellant, the first defendant and the third
defendant were
ordered to pay to the respondent jointly and severally, the sum of R1
800 000,00 (one million eight hundred thousand
rand) together with
interest and costs of suit on the attorney and client scale.
[3] Both the
appellant and the respondent are businessmen. The first
respondent is JPVT Property Developments CC, a close
corporation
(“
the close corporation
”,
where necessary). Mr Brendan David Pritchard is the third
defendant.
SOME
COMMON CAUSE FACTS
[4] It is common
cause that on 24 December 2004, the respondent and the first
defendant, duly represented by the second and third
defendants,
entered into a written agreement, annexure “PDEB”.
In terms of the PDEB agreement, the respondent
purchased in the
development the erf situated at number [......], Bedfordview, Gauteng
(“
the property
”)
from the first defendant for an amount of R700 000,00 (seven hundred
thousand rand).
[5]
At the same time, the respondent entered into a written building
contract with the first defendant, annexure “B”
(“
the
building contract
”).
In terms of the building contract, the first defendant undertook to
build for the respondent a unit, measuring not less
than 320 m²
(three hundred and twenty square metres) on the property against
payment by the respondent of an amount of R1
100 000,00 (one million
one hundred thousand rand). The additional material terms of
the agreement briefly were that:
the respondent agreed to
advance to the first defendant the amount of R1 800 000,00 (one
million eight hundred thousand rand);
the respondent consented
to the immediate use of these funds by the first defendant in order
to enable the first defendant to proceed
with the sub-division and
development of the property; the first defendant in turn, would meet
the obligations of the respondent
for payment of any amount(s) to be
paid by the respondent on due dates; the transfer of the
property into the name of the
respondent would not be effected until
the proclamation and sub-division of the property had occurred;
the transfer of the
property into the respondent’s name would
not be possible before end of July 2005; and should the
proclamation and
sub-division of the property not occur before the
end of July 2005, the respondent, “
may
elect to cancel this memorandum of agreement, the offer to purchase,
and the building contract. In such event, the developer
shall
return to the purchaser the payment made to the developer of R1
800,000.00 (one million eight hundred thousand rand) and
thereafter
neither party shall have a claim on the other
”.
[1]
It
is also not in dispute that on 24 December 2004, the second and third
defendants, in writing, bound themselves as sureties and
co-principal
debtors with the first defendant for the due and punctual performance
by first defendant of all its obligations under
the agreement.
[2]
It
is equally not in dispute that the respondent duly complied with all
his obligations in terms of the agreement(s). Further
that the
first defendant failed to ensure that proclamation and sub-division
in respect of the property occurred before the end
of July 2005.
The respondent subsequently and, in November 2008 or February 2009,
cancelled the agreement(s).
[6]
The only dispute between the parties was what occurred subsequent to
the conclusion of the agreement(s) by the respondent.
These
disputes, and I must hasten to describe them as unmeritorious, as
dealt with later, and as mirrored in the appellant’s
affidavit
in support of the rescission of the default judgment,
[3]
and
in the judgment of the court
a
quo
refusing rescission.
THE
PLAINTIFF’S AMENDMENT
[7]
However, before I deal with the grounds of the rescission
application, I need to mention one other development in the pleadings
on which reliance is placed by the appellant, not only before the
court
a
quo
,
but also on appeal before us. This is that, on 10 February 2011
(before the application for default judgment was launched),
the
respondent served and filed a notice of amendment of his particulars
of claim (“
the
amendment
”).
[4]
The
amendment sought to allege additionally that at all material times,
the first defendant close corporation was a juristic person
whose
asset value or annual turnover equalled or exceeded R1 000 000,00
(one million rand), and that consequently, the credit agreements
entered into between the parties are not subject to the provisions of
the National Credit Act,
[5]
(“
the
NCA
”).
The notice of amendment, given in terms of rule 28(1) of the Uniform
Rules of Court, also enclosed a tender for
costs on the unopposed
scale. It is common cause that subsequently and on 3 March
2011, since there was no opposition to
the amendment, the respondent
filed amended particulars of claim.
THE
APPELLANT’S CONTENTIONS
A QUO
[8]
In the court
a
quo
,
the appellant, not only raised certain defences, but was also
compelled to apply for condonation for the late bringing of the
rescission application. In regard to the condonation
application, the appellant contended that since his rescission
application
was brought under rule 42(1) of the Uniform Rules, which
does not specify a time limit and is a discretionary remedy, he
brought
the application within a reasonable period. He alleged
that since the summons was served at a chosen
domicilium
citandi et executandi
on 14 February 2011 by affixing to the principal door, the summons
never came to his attention, and he only saw the summons for
the
first time during the rescission process.
[6]
Significantly,
the rescission application was launched during March 2013 and the
answering papers filed during May 2013. Surprisingly,
the
appellant, in the same breathe, also contended that he “
became
aware of the respondent’s intention to enforce a judgment
against the appellant when it received a copy of a sec 65
of the
magistrate’s court notice to attend a debtor’s inquiry,
which process the appellant received on the 4
th
February 2013
”.
[7]
This
was in respect of the same default judgment under discussion.
The respondent in the answering papers, additionally contended
that
in any event, based on certain events, it was clear that the
appellant became aware of the default judgment already during
about 3
August 2011, and did nothing in order to seek rescission. I
deal with this rather crucial date later below.
[9] The appellant
further alleged that when he became aware of the default judgment, on
his version, and since he had every intention
of defending the
action, he immediately sought legal assistance. The first
opportunity he had to consult with his attorney
was on 12 February
2013. He was required to search for certain documentation, in
particular, documentation relating to what
is described later herein
as the Zambli cession. On 15 February 2013 he informed the
respondent of his intention to apply
for the rescission of the
judgment, and thereafter on 7 March 2013, he became aware of the
precise details of the judgment.
On 8 March 2013 the appellant
supplied his attorney with the relevant documentation. The
appellant placed excessive reliance
on the importance of the Zambli
documentation as well as the difficulty involved in accessing such
documentation and the court
file. He eventually delivered the
rescission of judgment application on 22 March 2013, some ten days
after investigations
and drafting a founding affidavit, on his
version. He says that this time lapse was not unreasonable and
was a reasonable
explanation for the delay in launching the
application.
[10] The respondent
opposed strongly the condonation application on several grounds, and
based on various emails and correspondence
exchanged between the
parties. The main and crucial event is what transpired on 3
August 2011. On this date, the respondent’s
attorney, Mr
J J Strydom (“
Strydom
”),
had a discussion with the appellant about the matter. On the
same day, Strydom addressed an email to the applicant
in the
following terms:
“
We
refer to the above matter and the telephone discussion between
yourself and the writer hereof earlier today. We attach
hereto
a copy of the default judgment granted in this matter on 19 July
2011. Kindly furnish us with your proposals as far
as payment
of the amount is concerned, as well as a copy of the agreement
entered into between Mr Pritchard, as discussed.
”
[8]
(Mr
Pritchard is the third defendant.) Strydom followed up on the
email with a letter, annexure “PB6”.
[9]
Despite
the invitation to present a repayment plan, the appellant simply
ignored the correspondence. However, some eight months
later, and on
18 April 2012, the appellant addressed an email to the respondent.
It is instructive to recite in part only
the contents of the email
which read:
“…
I
don’t know where to start or how to start but to say I’am
sincerely sorry for what has happened. I am sorry
for not being
in contact the last couple of years and it might seem that I was
ignoring the fact or running away of it but that
wasn’t the
case. I needed the time and space to get myself back on my feet
and get Helivac up and running to kill all
the fires left from the
developments. In no way or form did I ever right off our
friendship or the fact that I need to make
right with you …
and as soon as I’am in a position to start settling my accounts
you will be on that list. I
know the attorneys have been in
contact with each other and my attorney has helped me survive over
the last couple of years and
fought to give me time and space.
So no matter what happened their pleas know that as soon as I can
things will be made right
and I hope and trust that we should one day
be able to look past the last three years. I hope and trust you
are doing well
in all your ventures, it seems like you successful in
Dubai and having fun at the same time. Hopefully one of these
days
I can come deliver some greenbacks to you in Dubai and have a
holiday at the same time.
”
The respondent
submitted that the contents of this email showed that the appellant
unequivocally admitted that he owed the money
advanced by the
respondent to him and expressed the intention to repay the money.
The respondent also contended that, based
on the above, some nineteen
months had elapsed since the default judgment was granted leading up
to the rescission hearing.
There were other emails and
correspondence which have a bearing on this matter which may become
relevant later in the judgment.
[11] The court
a
quo
, in spite of the applicant’s
attitude that condonation was unnecessary, found that the delay in
launching the rescission
application was unacceptable. This,
mainly on the ground that the appellant had knowledge of the default
judgment as far
back as 3 August 2011. He only applied for
rescission during March 2013. This, when it became plain to the
appellant
that he was being subjected to proceedings under sec 65 of
the Magistrates’ Courts Act. The grounds of appeal
contend
otherwise, namely that the appellant has given an acceptable
and reasonable explanation as to why the application could only be
brought when it was, and why the application could not be brought any
earlier or within the requisite court time period.
I shall
revert to these assertions later below.
[12]
On the merits of the case, the appellant raised in the court
a
quo
the issue of the amendment. This was that, the default judgment
was erroneously sought and granted in the incorrect belief
that the
amendment had been served on the appellant and the other defendants,
and perfected as contemplated in terms of Uniform
Rule 28. The
amendment, so the argument continued, was never properly filed at
court and as such was never properly delivered
in terms of the rules;
the respondent did not deliver amended pages pursuant to the delivery
of his notice of amendment; and
inter
alia
,
that the appellant, as one of the defendants, was not yet on terms to
file an intention to defend to the amended particulars of
claim.
It was also argued that there was no complete amendment, resulting in
the unamended summons failing to deal with the
consequences of the
NCA on the transaction, namely that the first defendant was a
juristic person with assets and turnover over
the statutory R1
million threshold and in the absence of such an averment, the NCA
would have applied to such transaction.
Finally, on the aspect
of any alleged irregularity in the granting of the default judgment,
it was contended that the Judge who
granted the default judgment,
erred and omitted to take judicial notice of the unamended
particulars of claim. In the alternative,
the appellant, in the
heads of argument, contended for the rescission of the default
judgment in terms of Uniform Rule 31(2)(b)
and/or the common law.
I must hasten to observe that the argument relating to the provisions
of the NCA, is plainly without
merit and capable of disposal with
relevant ease, as correctly submitted by the respondent. The
NCA came into full force
and effect on 1 June 2007.
[10]
However,
the agreements between the parties undoubtedly predate the provisions
of the NCA in that the parties entered into the agreements
in
question about 24 December 2004.
[11]
In
terms of the agreements, the appellant and the first defendant had to
comply with their obligations before 31 July 2006.
This failure
to comply with their obligations meant that the defendants in the
action had breached the agreements even before the
NCA came into
effect.
RETROACTIVITY
OF LEGISLATION
[13]
In the circumstances of this matter, it can hardly be argued that the
applicable provisions have retrospective force.
This is so
since generally, statutes are construed as operating prospectively
only, unless the legislature has clearly expressed
a contrary
intention. In
S
v Acting Regional Magistrate, Boksburg, CC,
[12]
the
Court said:
“
It is
presumed that a statute does not operate retrospectively, unless a
contrary intention is indicated, either expressly or by
clear
implication. This presumption is consistent with the fair-trial
provisions of the Constitution, and was approved by
this court in
Veldman.
”
See
also
Curtis
v Johannesburg Municipality.
[13]
There
is also authority in abundance for the proposition that retrospective
legislation will not be given effect to if vested rights
are removed
or affected, or new obligations are created, or a new duty is
imposed. See in this regard,
inter
alia
,
Minister
of Safety and Security v Molutsi and Another.
[14]
In
the present matter, there is also no evidence or proof that the
agreements are credit agreements which would fall foul to the
provisions of the NCA.
[14] The above
approach and legal principles plainly put paid to the appellant’s
contentions based on the NCA. For the
same reasons, and others
dealt with immediately below, the appellant’s assertions based
on the amendment, must fail.
[15]
In
De
Wet and Others v Western Bank Ltd,
[15]
which
was subsequently partly upheld on appeal in
De
Wet v Western Bank Ltd,
[16]
where
default judgment was granted erroneously in circumstances where there
was no error on the part of the Court, but on the part
of the legal
representatives, the Court at p 8 said:
“
The Court
need not be party to the common mistake between the parties before
relief can be granted under the provisions of Rule
42(1)(c).
”
In
Lodhi
2 Properties Investments CC v Bondev Developments
2007 (6) SA 87
(SCA) at para [25], the Court said:
“
However,
a judgment to which a party is procedurally entitled cannot be
considered to have been granted erroneously by reason of
facts of
which the Judge who granted the judgment, as he was entitled to do,
was unaware, as was held to be the case by Nepgen
J in Stander.
See in this regard Colyn v Tiger Food Industries Ltd t/a Meadow Feed
Mills (Cape)
2003 (6) SA 1
(SCA) ([2003]
2 All SA 113)
in paras 9-10
in which an application in terms of Rule 42(1)(a) for rescission of a
summary judgment granted in the absence of
the defendant was refused
notwithstanding the fact that it was accepted that the defendant
wanted to defend the application but
did not do so because the
application had not been brought to the attention of his Bellville
attorney. This Court held that
no procedural irregularity or
mistake in respect of the issue of the order had been committed and
that it was not possible to conclude
that the order had erroneously
been sought or had erroneously been granted by the Judge who granted
the order.
”
THE
CRUCIAL ISSUE
[16] The crucial
issue in this appeal remains the question whether the appellant is
entitled to condonation for the delay in bringing
the rescission
application in terms of Rule 42(1)(a) or Rule 31(2)(b) and/or the
common law on the facts of the case, as contended
by him.
THE
FINDINGS OF THE COURT
A QUO
[17]
The court
a
quo
found that ‘
the
appellant had knowledge of the default judgment when Strydom
telephoned him on the 3
rd
August 2011. He only applied for rescission in March 2013, when
it became apparent to him that he was being subjected to
proceedings
in terms of section 65 of the Magistrates’ Courts Act.
The delay in launching the rescission application
is an unacceptable
delay. Moreover, the delay, accompanied by the statements
contained in the email of 18 April 2012, are
compelling evidence of
acquiescence in the judgment
’.
[17]
SUFFICIENT
CAUSE UNDER THE COMMON LAW
[18]
In
Harris
v Absa Bank Ltd t/a Volkskas,
[18]
an
application for rescission of a default judgment was brought under
the common law. In dealing with the issue of sufficient
cause,
the Court, at paras [4] and [5] said:
“
[4]
This application for rescission of judgment was brought under the
common law. The applicant,
being the party which seeks relief, bears
the onus of establishing 'sufficient cause'. Whether or not
'sufficient cause' has been
shown to exist depends upon whether:
(a)
the
applicant has presented a reasonable and acceptable explanation of
her default; and
(b)
the
applicant has shown the existence of a bona fide defence, that is one
that has some prospect or probability of success. See
Chetty v Law
Society, Transvaal
1985
(2) SA 756
(A)
at 764J, 765A - D.
[5]
The test whether 'sufficient cause' has been shown by a party seeking
relief, is dual
in nature, it is conjunctive and not disjunctive. An
acceptable explanation of the default must co-exist with evidence of
reasonable
prospects of success on the merits. In Chetty v Law
Society (supra) Muller JA explained this Rule thus:
'It
is not sufficient if only one of these two requirements is met; for
obvious reasons a party showing no prospect of success on
the merits
will fail in an application for rescission of a default judgment
against him, no matter how reasonable and convincing
the explanation
of his default. An ordered judicial process would be negated if, on
the other hand, a party who could offer no
explanation of his default
other than his disdain for the Rules was nevertheless permitted to
have a judgment against him rescinded
on the ground that he had
reasonable prospects of success on the merits.'
”
At
para [8] of the judgment, the Court went on to say that:
“
Before
an applicant in a rescission of judgment application can be said to
be in 'wilful default' he or she must bear knowledge
of the action
brought against him or her and of the steps required to avoid the
default. Such an applicant must deliberately, being
free to do so,
fail or omit to take the step which would avoid the default and must
appreciate the legal consequences of his or
her actions.
”
The
principles set out above of presenting a reasonable and acceptable
explanation for default, and that on the merits of the case
an
applicant for rescission has to show a
bona
fide
defence which,
prima
facie
,
carries some reasonable prospect of success, were emphasised in
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
[19]
.
In
Saphula
v Nedcor Bank Ltd
[20]
,
the
Court refused an application for rescission on the ground that the
applicant failed to demonstrate a
bona
fide
defence to the plaintiff’s claim.
INORDINATE
DELAY
[19]
In addition to the above legal principles, the issue for decision in
this appeal is the unquestionable inordinate delay taken
by the
appellant in launching the rescission application. In my view, this
question is decisive of the outcome. He argued that
the default
judgment was erroneously sought and granted for reasons already
alluded to earlier in the judgment. In regard
to the delay,
this was ascribed partly to himself and partly to his attorney of
record in searching for the requisite documentation,
especially in
regard to the Zambli alleged cession. Firstly, in regard to the
documentation, it is settled law that condonation
of the
non-observance of the rules is by no means a mere formality since the
onus
is on the applicant to satisfy the court that there is sufficient
reason for excusing him/her from compliance. It is equally
trite that under Uniform Rule 42(1)(a), an order or judgment is also
erroneously granted if there was an irregularity in the proceedings,
or if it was not legally competent for the court to have made such an
order, as was held in
inter
alia
,
De
Wet v Western Bank Ltd (supra)
at 1038D, and
Promedia
Drukkers and Uitgewers (Edms) Bpk v Kaimowitz
[21]
,
respectively.
The explanation for the delay and the grounds for condonation in the
present appeal have already been dealt
with. In
Commissioner
for Inland Revenue v Burger
[22]
,
the Court said:
“
Whenever
an applicant realises that he has not complied with a Rule of Court
he should, without delay, apply for condonation.
Cf. Crouser v
Standard Bank,
1934 A.D. 77
at p. 79; R v Mkize,
1940 A.D. 211
at p.
213; and Reeders v Jacobsz,
1942 A.D. 395
at p. 397.
”
In
the case just quoted, the Court described the delay in applying for
condonation, viewed as a whole, as ‘
so
protracted
as
to be inexcusable
’.
In my view, the same can be said with regard to the facts presented
in the instant matter, as well as the eventual
launching of the
rescission application. None of the issues laid down in the
Burger
case
have been complied with in the context of the present appeal.
As stated before, the credible evidence showed that the
appellant
became aware, or ought reasonably have become aware of the default
judgment as far back as 3 August 2011.
His version that
it was 7 March 2013, lacked credibility. Similarly, the
contention in the heads of argument, to the effect
that the
application for rescission was brought within a reasonable time, “
but
if it is necessary to seek condonation, the appellant seeks
condonation for any failure to bring the application within a
reasonable
period of time or for any non-compliance with the High
Court Rules
”
[23]
,
was not supported by the objective facts at all. What
compounded the appellant’s cause, was that, in this appeal,
he
also seeks condonation for the late prosecution of the appeal, as
well as for the late delivery and inclusion of the court order
of the
court
a
quo
of 30 September 2014 when dismissing his application for rescission
of judgment. For the same reasons advanced above, these arguments
lacked credibility and substance, as they too, were dated as late as
7 April 2015. The submission in essence, overlooked
that what
called for an explanation is not only the delay in the timeous
prosecution of the appeal, but also the delay in seeking
condonation.
See in this regard,
Commissioner
South African Revenue Service v Van der Merwe
[24]
.
[20]
The findings of the court
a quo
,
which included that the delay in launching the rescission application
was an unacceptable delay; that it rejected the appellant’s
explanation about his failure to address the correspondence sent to
him by Strydom during August 2011; that the appellant admitted
the
telephonic discussion with Strydom during August 2011; that during
such telephonic discussion, Strydom informed the appellant
that
default judgment was granted against him on 19 July 2011; and
that the appellant only launched the rescission application
on 22
March 2013, cannot be faulted at all.
THE
LEGAL PRINCIPLES ON APPROACH TO FINDINGS OF COURT
A
QUO
[21]
In considering all the circumstances of the appeal and in drawing to
a conclusion in this matter, two critical principles come
to mind.
The first is that the respondent’s interests in having finality
of his judgment and finality in litigation.
For, as far back as
1912, the Court in
Cairns
’
Executors
v Gaarn
[25]
,
in which a special appeal was brought out of time, said:
“
After
all the object of the rule is to put an end to litigation and to let
parties know where they stand. It would be intolerable,
if
there were no reasonable limit of time within which appeals might be
brought, and it is to the interest of the public that the
time should
be limited. When a party has obtained a judgment in his favour
and the time allowed by law for appealing has
lapsed, he is in a very
strong position, and he should not be disturbed except under very
special circumstances.
”
See
also
Minister
of Land Affairs and Agriculture and Others v D F Wevell Trust
[26]
.
[22] In the
present matter, the summons was issued as far back as September
2010. On 16 September 2010, the summons was served
on the
appellant. The appellant, however, did not enter an appearance
to defend for reasons already described above.
On 19 July 2011
the respondent obtained the default judgment under discussion.
Surely, finality in this litigation must now prevail.
In the
absence of any special circumstances, public interest so demands.
[23]
The second legal principle of procedure is that the power of a court
of appeal to disturb factual findings of a court
a
quo
is limited, unless there is some patent irregularity or misdirection,
or the order granted is clearly wrong. See for example,
Ndlovu
v A A Mutual Insurance Association Ltd
[27]
,
and
R
v Dhlumayo and Another
[28]
.
In the latter case, some of the principles include situations where
the Appellate Court may be in as good a position as
the trial judge
to draw inferences, whether they are either drawn from admitted facts
or from the facts as found by him/her, and
that where there has been
no misdirection on fact by the trial court, the presumption is that
his/her conclusion is correct.
The Appellate Court will in such
case only reverse the conclusion where it is convinced that it is
wrong. See too,
Kunz
v Swart and Others
[29]
,
which was quoted with approval in Taljaard v Sentrale Raad vir Koöp
Assuransie Bpk
[30]
.
APPLYING
THE ABOVE LEGAL PRINCIPLES TO THE FACTS OF THIS CASE
[24]
In applying the above principles to the facts of the present matter,
the court
a
quo’s
findings that the appellant knew of the default judgment since 3
August 2011; that there was an inordinate delay in bringing the
rescission application, and that the appellant’s statements as
contained in the relevant email correspondence referred to
above, are
factually compelling evidence of acquiescence in the judgment, cannot
be faulted. Similarly, the court
a
quo’s
finding that the email (from the appellant to the respondent on 18
April 2012)
[31]
,
read in context of the appellant’s knowledge of the default
judgment, as well as the sequence of past events, all amount
to a
tacit acknowledgement toward the respondent, and an intention to pay,
is indisputable, cannot be criticised. There was
in fact no
convincing reasons advanced by the appellant why the factual findings
by the court
a
quo
should be reversed. When properly considered, the conclusions
reached by the court
a
quo
are indicative of the fact that the appellant has no
bona
fide
defence, which
prima
facie
has some reasonable prospects of success, to the respondent’s
claim, as correctly argued by the respondent in closing argument.
It follows therefore that the appellant failed to make out a case for
the rescission of the judgment either under the common law,
Rule
31(2)(b) or Rule 42(1)(a). The appellant’s assertions in
respect of the alleged Zambli cession, which were not
pursued with
any vigour in closing argument, should suffer the same fate, in my
view. The alleged cession could not legally
and validly have
ceded the respondent’s rights originally acquired in terms of
the contracts mentioned in paras [4] and [5]
of the judgment, to say
the least.
CONCLUSION
[25]
I conclude that for all the aforegoing reasons, the appeal must
fail. The costs ought to follow the result.
ORDER
[26]
The following order is made:
1.
The
appeal is dismissed with costs.
__________________________________________
D S
S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I
agree:
__________________________________________
M
L MAILULA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree:
__________________________________________
M
P TSOKA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPELLANT
ATTORNEY MATTHEW KERR-PHILLIPS
INSTRUCTED
BY
MATTHEW KERR-PHILLIPS
COUNSEL
FOR THE RESPONDENT
P A WILKINS
INSTRUCTED
BY
STRYDOM ATTORNEYS
DATE
OF HEARING
28 OCTOBER 2015
DATE
OF JUDGMENT
26 FEBRUARY 2016
[1]
See
clause 6 of memorandum of agreement, PDEB, vol 1 of appeal record p
13.
[2]
See
annexure “C” to particulars of claim.
[3]
See
appeal record vol 1 pp 53 to 72.
[4]
See
appeal record, vol 1 pp 86 to 88.
[5]
Act
34 of 2005.
[6]
See
para 87, in particular 8.7.1 p 6 of the appellant’s heads of
argument.
[7]
See
para 8.7.2 p 6 of the appellant’s heads of argument.
[8]
See
annexure “PB5”, answering affidavit p 130 vol 2 record.
[9]
See
p 132 record vol 2.
[10]
The
Act became operative in three phases and was further amended by the
National Credit Amendment Act 19 of 2014.
[11]
See
paginated page 5, paras 5 and 7.7 of the particulars of claim.
[12]
2011
(2) SACRA 274 CC para 16.
[13]
1906
TS 308
at 311 and 312.
[14]
1996
(4) SA 72
(A) 88D-E.
[15]
1977
(4) SA 770 (T).
[16]
1979
(2) SA 1031 (A).
[17]
Pages
45 to 47 of judgment – court
a
quo
.
[18]
2006
(4) SA 527 (T).
[19]
2003
(6) SA 1
(SCA) at 11.
[20]
1999
(2) SA 76 (W).
[21]
1996
(4) SA 411
(C) at 417G-H.
[22]
1956
(4) SA 446
(A) at 449G.
[23]
See
para 8.6 p 6 of the heads of argument.
[24]
[2015]
3 All SA 387
(SCA) at 396.
[25]
1912
(A) 181 at 193.
[26]
2008
(2) SA 184
(SCA) at 199B-D.
[27]
1991
(3) SA 655
(E) 659E-F.
[28]
1948
(2) SA 677 (A) 698.
[29]
1924
(A) 618 at 655.
[30]
1974
(2) SA 450
(A) at 451H.
[31]
Paginated
p 134 vol 2, record.