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[2016] ZAGPJHC 118
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Blumenthal v City of Johannesburg and Another (30400/2015) [2016] ZAGPJHC 118 (26 May 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 30400/2015
DATE:
26 MAY 2016
In
the matter between:
KEITH
BLUMENTHAL
.....................................................................................
Plaintiff
/ Respondent
And
THE
CITY OF
JOHANNESBURG
...........................................................
First
Defendant / Applicant
CITY
POWER OF
JOHANNESBURG
....................................................................
Second
Defendant
JUDGMENT
RATSHIBVUMO
AJ
:
1.
This is an application in which the City of
Johannesburg, the First Defendant in the main action (the Applicant),
seeks a rescission
of a default judgment granted in favour of the
Plaintiff (the Respondent) by this court on 29 October 2015. The
application is
brought under Rule 31 (2) (b), alternatively Rule 42
(1) (a). The Respondent opposes the application. The judgment was for
a payment
by the Applicant, of the sum of R334 546.70 plus
interest at the rate of 9 % per annum from 22 July 2015 to the date
of the
payment. The Applicant was also ordered to pay the costs of
suit.
2.
An affidavit by Mehmood Moola, a Legal
Specialist in the employ of the Applicant confirms that there was no
entry to defend the
action after summons was served on his employer
on 01 September 2015. The reason there was no such entry was
elaborated as follows.
Summons was received and noted in their
receipt book before being allocated to the Applicant’s Revenue
Department, on 08
September 2015. Copies of the receipt book and the
record for the referral to the said department were attached to his
affidavit.
He has no idea what happened to the summons, save to say
it went missing. He however suspects it may have been erroneously
attached
to the back of one of two other matters that were delivered
the same day and forwarded to the same department. As a result this
matter was not allocated to anyone in that department to attend to.
3.
The Applicant was only made aware of the
judgment through an email from the Respondent’s attorney sent
on 12 November 2015.
The search for the summons by various persons
working for the Applicant and an ultimate decision to obtain copies
from the court
file resulted in further delays in the Applicant
bringing this application. The delay missed the 20 days deadline by a
week. This
explanation was submitted to show absence of wilful
default and condonation for bringing the application outside the 20
day period.
The condonation would however not be necessary if the
court deals with the application based on Rule 42 (1) (a), which is
the alternative
basis of this application.
4.
The
Respondent does not dispute the Applicant’s version. He however
submits that this explanation is not enough to show lack
of wilful
conduct, emphasising that summons was delivered to the Applicant. The
court’s approach in
Kouligas
& Spanoudis Properties (Pty) Ltd v Boland Bank Bpk
[1]
was while a wilful default would be fatal to the rescission
application, gross negligence is usually condoned. Given the size,
nature and type of Applicant being a municipality, I allowed the
condonation. While the Applicant may be be imputed some level
of
negligence or poor management, its conduct cannot be classified as
wilful default. The court finds the explanation to be reasonable.
The
court is therefore satisfied that failure to enter the notice to
defend was not due to wilful default on the part of the Applicant.
5.
I now turn to consider if there is a
bona
fide
defence to the claim. The judgment
granted against the Applicant was for the amount allegedly
overcharged in electricity meter
readings for the period between 12
July 2010 and 01 May 2015. The Respondent lodged his claim for a
period dating more than 5 years
prior to instituting the claim. The
Applicant submits therefore that the claim by the Respondent, or a
part thereof, had prescribed
already. The Respondent submits that the
prescription of a debt starts running from the time the person
becomes aware of the debt.
6.
Clearly
this submission has no regard to the provisions of the Prescription
Act, no. 68 of 1969 (the
Prescription Act) which
provides to the
contrary. According to the
Prescription Act, the
prescription period
for a debt is three years.
[2]
The
Prescription Act further
provides that
“
subject
to the provisions of subsections (2), (3), and (4), prescription
shall commence to run as soon as the debt is due.”
[3]
It follows therefore that the Respondent was not legally entitled to
claim and to be granted an order extending over a period longer
than
3 years. A judgment granted for a period already prescribed was
granted erroneously.
7.
Counsel
for the Respondent then makes an alternative submission to the effect
that the court should consider giving a partial rescission
of
judgment in which the amount claimed would be limited to the three
years that at the time the summons were issued, had not prescribed
yet. While I accept that the court can grant partial rescission of
judgments, I am not convinced that it would be warranted in
circumstances of this case. I am in agreement with Flemming DJP in
Silky
Touch International (PTY) LTD and Another v Small Business
Development
[4]
when he quoted the following passage from
SOS
Kinderdorf International v Effie Lentin Architects
[5]
with
approval,
“
There
is no reason why this pattern should be deviated from where a
plaintiff has already obtained a default judgment in respect
of more
than one but separate claims, and the defendant shows a defence to
some of plaintiff's claims, or to a part of the claim,
which is
divisible from the whole. For example, where a plaintiff is granted
default judgment in respect of the payment of a sum
of money as well
as delivery of certain goods, and the defendant can show a
bona
fide
defence to one or the other, there
is no reason why the plaintiff should not be entitled to judgment in
respect of the claim which
defendant cannot defend. The essential
question is whether the claim or claims in respect whereof default
judgment has been given
is divisible.”
8.
The
Applicant further submits that even if it was to be accepted that the
electricity meter box was
faulty,
it was not brought to the court’s attention that the alleged
faulty meter box was installed for the Respondent on
05 November
2013.
[6]
It should be accepted
therefore that the meter box for the period prior to this date could
not have been faulty, or at least, no
complaint was lodged in respect
thereof. The judgment was however awarded even for the period prior
to 05 November 2013, when the
meter box was not faulty.
9.
Further
to this, the Applicant referred to the by-laws which provide for the
procedure that the Respondent was bound to follow the
moment he
suspected that his electricity meter box could be faulty.
[7]
According to these, the Respondent was supposed to have served a
notice on the Applicant, paid a sum of money and then the Applicant
would remove the meter box and have it tested by its engineering
department subject to SABS approved conditions. This was not done
by
the Respondent. The Applicant avers therefore that any testing
undertaken by the Respondent without following the by-laws was
illegal.
10.
Counsel for the Respondent seemed to
struggle to understand Annexure D that explains that the meter box
was recently replaced. He
went as far as to question the basis on
which counsel for the Applicant could tell with certainty that
Annexure D refers to a replacement
in a meter box for the
Respondent’s residential address; and the same was explained
with reference to the said Annexure D.
It would therefore be unfair
to expect him to meaningfully counter any submission in that regard.
11.
In
RGS
Properties (PTY) LTD v Ethekwini Municipality
,
[8]
it was held that default judgment is prima facie inherently
unconstitutional and as such, courts should not scrutinise too
closely
to ascertain if the defence is well founded. The court is
therefore satisfied that if proved, the defence raised by the
Applicant
would be successful. The Applicant has pointed to a number
of defences which if successfully proved may result in the dismissal
of the claim. I am therefore satisfied that the Applicant raised a
bona fide defence and that this application is made bona fide.
12.
The Applicant had tendered the costs for
this application, unless it was opposed, in which case the
application was for the party
opposing the application to be ordered
to pay the costs. I do not see any reason why the same should not be
ordered for the Respondent
who chose to oppose the application while
aware of all the submissions made by the Applicant above.
13.
For the reasons stated above, it follows
that the following order is made:
13.1That
the default judgment granted against the Applicant on 29 October 2015
under case no. 30400/2015 is hereby rescinded;
13.2The
First Defendant is ordered to file a plea within 15 days of the
granting of this order;
13.3The
Respondent is ordered to pay the costs of this application.
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date
Heard: 18 May 2016
Judgment
Delivered: 26 May 2016
For the
Applicant: Adv. Adv. Lee Franks
Instructed
by: Moodie & Robertson Attorneys
Johannesburg
For
the Respondent: Mr. SB Friedland
Instructed
by: Beder-Friedland Inc
Sandton
[1]
1987
(2) SA 414
(O) at 417C–D
[2]
See
sec 11
of the
Prescription Act. There
are however exceptions that
are not relevant for purposes of this judgment.
[3]
See
sec 12
of the
Prescription Act
>
[4]
[1997]
3 All SA 439
(W).
[5]
131993
(2) SA 481 (Nm)
.
[6]
Annexure
D, p. 19 of the bundle.
[7]
See
Standardisation of Electricity By-Laws Gazette no. 16, Notice no.
1610 of 17 March 1999.
[8]
2010
(6) SA 572
(KZD)