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[2017] ZAGPJHC 436
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Standard Bank of South Africa Limited v Nkuna and Another (26253/2015) [2017] ZAGPJHC 436 (8 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
8
September 2017
CASE NO:
26253/2015
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Applicant
and
NKUNA,
OZIAS TUKANE
NKUNA,
THEREISA PHUMZILE
First Respondent
Second Respondent
JUDGMENT
STRYDOM
AJ:
Background
[1]
This is an application in terms of Rule 30 of the Uniform Rules of
Court to set aside the rescission application bought by the
Respondents. It was placed before me as an opposed interlocutory in
the normal course.
[2]
The setdown was duly served on the Respondents on 14 August 2017 on
the Second Respondent. The Respondents are conducting their
own
defence. At the hearing, the Respondents did not appear and the
matter was argued in their absence.
The irregular steps
[3]
The Rule 30 irregular steps complaint of by the Applicant are:
3.1
the Respondents failed to appoint an address within 15 km from the
office of the registrar
3.2
they failed to provide a date not less than 5 days in which the
Applicant could oppose the proceedings
3.3
the failed to set out a date on which the application would be set
down if no notice of opposition is
received
3.4
the Respondents chose the wrong process as the judgment granted by
Mashile J on 7 November 2016 is not
susceptible to a rescission.
[4]
The first three complaints are classic examples of irregular steps as
it relates to issues of form and not substance and I find
that it is
irregular steps in terms of Rule 30.
[1]
The first complaint from the first three complaints is in my view is
the only irregular step of substance. I am however not convinced
that
the fourth irregular step is one of form and should be considered as
an irregular step but do not make such a finding for
the reasons
below.
[5]
I shall now deal only with the first three irregular steps. The first
three irregular steps are capable of being condoned.
[2]
In the matter of
Minister of
Prisons
the court held that
it has a general discretion to condone any con-compliance with the
Rules ito Rule 27(3). The court came to
the conclusion that a summons
failing to set out an address as is required by the Rules is not void
and can be condoned.
[6]
The Respondents are not before me and I have received no application
of any nature to condone the irregular steps and to be
granted an
opportunity to amend. In fact, the Respondents in their Answering
Affidavit deny that there are any irregular steps.
[3]
They basically confirm the appointed address. It needs to be
mentioned that the address provided is one in Chloorkop Street,
Kempton
Park.
[7]
I am of the view that I can take judicial notice that the distance
between the office of the registrar of this Court and Chloorkop
Street, Kempton Park is more than 15 km.
[8]
In the absence of an application for condonation and particularly in
the absence of the Respondents I am of the view that the
Rescission
application should be set aside with costs. I see no reason why a
further punitive costs order should be granted.
[9]
In the light of abovementioned finding it is unnecessary for me to
deal with the fourth ground raised by the Applicant in this
Application.
[10]
I therefore make the following Order:
[10.1] The
Rescission application dated 31 January 2017 is set aside;
[10.2] The
Respondents to pay the costs on a party party scale.
I
STRYDOM
ACTING
JUDGE OF THE HIGH COURT
Date of
Hearing: 7 September 2017
Judgment
Delivered: 8 September 2017
Counsel
for the Applicant: Adv M Reineke
Instructed
by: Ramsay Webber
Respondents
appearing in person
[1]
De Polo v Dreyer
1989(4) SA 1059 (W) at 1061E
[2]
Minister of Prisons v Jangilanga
1983(3) 47 ECD
[3]
See Page 63 par 9