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[2016] ZAGPJHC 260
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De wet v South African Securitization Programme (RF) Limited and Another (25162/2015) [2016] ZAGPJHC 260 (22 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 25162/2015
In
the matter between:
DIRK
JACOBUS RIEKERT DE WET
APPLICANT
and
SOUTH
AFRICAN SECURITIZATION
PROGRAMME
(RF)
LIMITED
FIRST RESPONDENT
THE
SHERIFF, BOKSBURG
SECOND RESPONDENT
J
U D G M E N T
COLLIS
AJ:
INTRODUCTION
[1]
In the present application, applicant seeks an order for the
rescission of a default judgment taken against him on 24 November
2015. The application is purportedly brought in terms of the
provision of Uniform Rule 42(1)(a), albeit that the founding
affidavit
also addresses the applicant’s absence of wilfulness
of default and his
bona fide
defence. The application is opposed by the first respondent.
BACKGROUND
[2] During May 2014, Bulk Line Haul
Services CC (“the principal debtor”) concluded two rental
agreements with Sunlyn
(Pty) Ltd (‘Sunlyn’). The relevant
terms of both rental agreements were:
Clause
7.1
:
‘claim immediate payments of all amounts which would have been
payable in terms of the Agreement until expiry of the rental
period
stated in the Schedule, whether such amounts are then due for payment
or not. You agree that we may take possession of the
goods and only
return them to you on receipt of full payment of all amounts owing by
you. You will not be able to withhold payment
or make any deductions
from any amount owing as a result of your loss of possession of the
goods; or
Clause
7.2
immediately
terminate the Agreement, take possession of the goods, retain all
amounts already paid by you and claim all outstanding
rentals, all
legal costs as between attorney and own client and as agreed
pre-estimated liquidated damages, the aggregate value
of the rentals
which would have been payable had the Agreement continued until
expiry of the initial period stated in the Schedule.
Clause
13
:
You may not transfer your rights in terms of the Agreement …We
may, without notice to you, transfer all or any portion
of our rights
in terms of the Agreement….You agree that, if we transfer, you
will hold the goods and continue to fulfil
your obligations to the
new owners of the rights to the Agreement and/or the goods.”
[3]
On the same day that both rental agreements were concluded, the
applicant and two others agreed to guarantee the debts of the
principal debtor owed to Sunlyn. The principal debtor subsequently
defaulted on its obligations and the first respondent elected
to act
in terms of the clause 7.1 and 7.2 as quoted above.
[4]
Rule 42(1)(a)
[1]
empowers the court to rescind an order erroneously sought or
erroneously granted in the absence of a party seeking rescission,
provided that such party is affected by such order or judgment. The
prerequisite factors for granting rescission under this Rule
are the
following: firstly, the judgment must have been erroneously sought or
granted; secondly, such judgment must have been granted
in the
absence of the applicant; and lastly, the applicant’s rights or
interest must be affected by the judgment. Although
the language used
in Rule 42(1) indicates that the Court has a discretion to grant the
relief, such discretion is narrowly circumscribed.
The use of the
word ‘may’ in the opening paragraph of the Rule,
indicates the circumstances under which the Court will
consider a
rescission or variation of the judgment.
[5]
Once those three requirements are established, the applicant would
ordinarily be entitled to succeed. He is not required to
show good
cause in addition thereto. See the decision De Sousa v Kerr
1978 (3)
SA 635
(W).
GROUNDS OF OPPOSITION
[6] The first respondent opposes the
application on the following grounds:
6.1 It is denied by the first
respondent, that there was no service of the summons as contended by
the applicant.
6.2
It is denied that the Conventional Penalties Act 15 of 1962 is
relevant to the dispute.
[2]
In this regard the first respondent alleges, that the amounts claimed
in respect of both rental agreements are the
agreed
pre-estimated
liquidated damages, which is the value of the rentals which would
have been payable had the agreements continued until
expiry of the
initial rental period, as stated in the rental agreements. It is
denied that these amounts are penalties, but rather
that the parties
have simply agreed to an acceleration of all amounts due.
6.3
Lastly, the first respondent relies on the cession agreements. In
terms of the cession agreements, Sasfin elected to cede all
its
rights in terms of both rental agreements to SASP.
[3]
[7]
I will proceed to deal firstly, succinctly with the requirements
under Rule 42(1)(a) as mentioned above.
Service of the summons
[8]
On 21 July 2015, the summons in the present matter was served on the
third defendant (applicant) at 68 Victor Whitmill Drive,
Sunward
Village, Sunwardpark Boksburg. The return of service depicts that the
summons was affixed to the gate at the applicant’s
chosen
domicilium
citandi et executandi
at around 16h30.
[4]
In his founding affidavit, the applicant does not deny that the said
address was his chosen
domicilium
address as per the guarantee. He, however, alleges that at the time
of service of the summons, his two daughters were present at
the
house and as such if indeed the deputy sheriff had made enquires at
the given address, as is alleged in his return, in all
probability he
would have found someone at the given address at the time of service
of the summons. Apart from the above, the applicant
further contends
that he has no gate at his premises and as such the deputy sheriff
would have easily been able to access the front
door to his house.
[5]
[9]
At paragraph 32 of the founding affidavit, he further alleges that
his address is situated within an estate, where access into
the
estate is controlled by a security company. On the day that service
allegedly took place the entrance logbook reflects no booking
of an
entry by the deputy sheriff around the time when service allegedly
occurred. The applicant thus disputes that the summons
was served as
alleged by the deputy sheriff in his return. It is on this
basis that the applicant contends that the judgment
had been
erroneously sought or granted.
[10]
The deponent to the first respondent’s answering affidavit,
refrained from dealing with the allegations in the founding
affidavit, which she either admitted or could not dispute.
[6]
As such, no evidence in rebuttal of the factual allegations made in
the founding affidavit, in relation to the service of the summons
was
presented before this court.
[11]
Section 43(2)
of the
Superior
Courts Act 10 of 2013
reads as follows:
‘
The
return of the sheriff or a deputy sheriff of what has been done, upon
any process of court, shall be
prima
facie
evidence of the matters therein
stated.”
[12]
It is so, that where an applicant refutes the
prima
facie
evidence of the matters stated in a return, such applicant carries
the
onus
to disprove the contents of the return of service. As mentioned in
paragraph 8 above, the applicant categorically states, in paragraph
31 to his founding affidavit that he has no gate at his premises and
as such the summons could not have been affixed to his gate.
This was
not denied by the first respondent, nor was an affidavit obtained
from the deputy sheriff, to expressly contest the factual
allegation
made by the applicant in this regard.
[7]
[13]
Furthermore, in paragraph 32 of his founding affidavit, the applicant
annexed an extract of the entrance logbook to his estate,
which
reflects no entry by the deputy sheriff on the day and around the
time stipulated in the return of service, when the alleged
service of
the summons must have taken place. Here too, the first respondent has
failed to obtain an affidavit from the deputy
sheriff wherein, the
said sheriff expressly denies the contents of the extract of the
logbook.
[14]
Whereas, an action is commenced when the summons is issued, the
defendant is not involved in litigation until service is effected.
This is because it is only at that stage that a formal claim is
made.
[8]
It has been held in the past that a proper service of the summons
commencing an action is an act necessary for the defendant’s
due citation and such citation constitutes the foundation of the
proceedings.
[9]
[15]
In the absence of any rebuttal evidence which is presented before
this court, I find that the applicant has established that
no service
of the summons has taken place.
[16]
It is for this reason that I find that the order of 24 November 2015
was erroneously granted, in the absence of service of
the summons.
The failure to serve the summons on the applicant rendered the
proceedings wherein the order of 24 November 2015 was
granted, null
and void ab initio.
[10]
The applicant is therefore entitled to have the said order set aside
even though in actual fact it constitutes a nullity.
[17]
Counsel representing the first respondent submitted during argument
that if the court is of the view that the applicant had
satisfied the
court on the issue of service, then the application for rescission
must succeed.
[18]
In the circumstances, I find it unnecessary to deal with the
remainder of the grounds of opposition.
ORDER
[19] In the result the following
order is made:
1. The default
judgment granted against the applicant on 24 November 2015 is hereby
rescinded.
2. The first
respondent is ordered to pay the costs of this application on the
scale of attorney and own client.
_______________________
C. J. COLLIS
ACTING JUDGE GAUTENG LOCAL DIVISION
JOHANNESBURG
APPEARANCES:
FOR APPLICANT
:
Adv.
D. Williams
INSTRUCTED BY
:
MALHERBE
RIGG & RANWELL INC.
FOR FIRST RESPONDENT :
Adv C. Cothill
INSTRUCTED BY :
SMIT
JONES & PRATT
DATE OF HEARING
:
04 August 2016
DATE
OF JUDGMENT : 22
September 2016
[1]
The
Rule reads as follows:
“
42(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……..”
[2]
Answering
Affidavit page 46 paragraph 42
[3]
Answering
Affidavit page 44 paragraph 30
[4]
Founding
Affidavit page 12 paragraph 29
[5]
Founding
Affidavit page 13 paragraph 31
[6]
Answering
Affidavit page 45 paragraph 36
[7]
See
Wightman t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) paras 12 and 13
[8]
See
Marine and Trade Insurance Co Ltd v Reddinger
1966 (2) SA 407
(A) at 413D
[9]
See
Mutebwa v Mutebwa and Another
2001 (2) SA 193
(TkH) at 201
[10]
See
Dada v Dada
1977 (2) SA 287
(T) at 288C-D