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South Africa: South Gauteng High Court, Johannesburg
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[2018] ZAGPJHC 128
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Pienaar v TLB Transport CC (10521/2017) [2018] ZAGPJHC 128 (10 May 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED
10521/2017
10/5/2018
In
the matter between
ALWYN
PIENAAR
APPLICANT
and
TLB
TRANSPORT
CC RESPONDENT
Practice –
Application for rescission of court order - wilful default –
sheriff’s return certifying personal service
of summons -
applicant denying personal service - effect of – requirement of
bona fide defence - two mutually destructive
versions - approach to
be adopted by court - inherent difficulties in plaintiff/respondent’s
version - dispute only capable
of resolution on oral evidence -
rescission granted - costs in the cause.
J
U D G M E N T
VAN
OOSTEN J:
[1]
This is an application for rescission of an order granted by default
by this court (Van der Linde J) on 20 June 2017. The application
is
opposed by the respondent on the grounds that the applicant has
failed to show either that he was not in wilful default or that
good
cause exists why the judgment should be rescinded. For the sake of
convenience and ease of reference I shall refer to the
parties as in
the action.
[2]
The plaintiff sued the defendant for the return of a DAF truck with
registration [….] (the vehicle), based on the defendant’s
breach of a verbal lease agreement having been entered into with the
defendant. The summons commencing the action, according to
the
sheriff’s return of service, was served on the defendant
personally. No opposition was filed and the plaintiff launched
an
application for default judgment in terms of rule 31(5). The papers
in that application were likewise, according to the sheriff’s
return of service, served on the defendant personally. On the date of
hearing of the application before Van der Linde J, the plaintiff
was
still in default and an order for the return of the vehicle and costs
was granted.
Wilful
default
[3]
The defendant denies that the summons was served on him personally or
that he was aware thereof until 1 August 2017. In response
thereto
the plaintiff referred to and attached a copy of the sheriff’s
return certifying personal service of the summons
on the defendant at
his home address. In the replying affidavit the defendant persisted
in the denial that personal service of
either the summons or the rule
31(5) application had had been effected on him.
[4]
The sheriff’s returns of service constitute strong prima facie
proof of their content (
Deputy Sheriff for Witwatersrand District
v Harry Goldberg and Others
1905 TS 680).
On the other hand the
plaintiff does not merely baldly deny personal service, he remains
adamant that the documents were not served
on him personally. He has
gone to great lengths to track his actions and whereabouts on the
date of the alleged service of the
summons. He established from his
golf schedule, a copy of which is attached to the papers, that on
that particular day he was playing
golf at the Benoni Country Club,
together with three friends of his, who are all willing to confirm
his version in this regard.
[5]
Having considered the two opposing versions before me, l am satisfied
that the dispute cannot be resolved on paper but only
after the
hearing of oral evidence including the evidence of the sheriff.
[6]
It follows that for purposes of the present application, a finding in
regard to wilful default cannot be made.
[7]
The question remaining and decisive of the application, is whether
the defendant has shown a bona fide, triable defence to the
plaintiff’s claim, to which I now turn.
Bona
fide defence
[8]
The plaintiff’s pleaded cause of action is a ‘verbal’
agreement of lease concluded ‘on or about August
2013’ in
terms of which the defendant leased the vehicle for an amount of
R25 000.00 per month, payable by way of two
equal payments of
R12 500.00, on the first and fifteenth day of each month. No
time period in respect of the duration of the
lease is pleaded to
have been agreed upon, although the agreement pleaded provided for
immediate return of the vehicle upon the
defendant’s failure to
pay any one payment.
[9]
The defendant states that he, at all times, was acting on behalf of
AS Vervoer CC, in respect of which no details are given.
He
relies on an oral agreement of purchase of the vehicle, for the
purchase price of R320 000.00, which was to be paid by
way of
monthly instalments of R25 000.00 each, from July 2013. He has
listed all the payments that were made, in respect of
which
supporting documents are attached. He states that having paid the
purchase price, a demand was made for handing over of the
vehicle’s
registration papers in order to register the vehicle in the name of
the Close Corporation, but that the plaintiff
refused to do so
alleging for the first time that he had only leased the vehicle in
terms of a lease agreement.
[10]
There are two opposing mutually destructive versions before me
concerning the true nature of the agreement between the parties.
The
plaintiff’s version suffers from certain inherent difficulties:
in the answering affidavit in this application the plaintiff
sets out
a prior
ad hoc
lease agreement between the parties which was
‘varied’ in June 2013, to a monthly lease agreement. This
is not reflected
in the plaintiff’s summons. The terms of the
lease agreement set out in the answering affidavit differ from those
pleaded
in the particulars of claim. Of importance however, is that
the plaintiff states that it was a term of the ‘varied lease
agreement’ that the terms thereof would be reduced to writing
and signed by the parties. This he did with the assistance of
his
daughter but, despite several unsuccessful attempts by his daughter
to contact the defendant to sign the draft, it remained
unsigned. The
existence of the unsigned document quite clearly would have
materially corroborated the plaintiff’s version
but for some
unexplained reason, it has not been attached to the papers nor was it
referred to, so it seems, when the parties were
at loggerheads
whether a lease agreement or sale agreement had been entered into.
Except for mere say-so of both parties there
is no corroboration of
either version nor would it be permissible, as counsel for the
plaintiff sought to do, to search for probabilities
in either
version. The dispute must clearly be resolved by the hearing of oral
evidence in the trial of the action.
[11]
I am satisfied that the defendant has disclosed a bona fide triable
defence and it follows that the order of Van der Linde
J falls to be
rescinded.
[12]
In the result the following order is made:
1.
The order granted by Van der Linde J in the above
matter, on 20 June 2017, is rescinded.
2.
The defendant shall deliver a plea to the plaintiff’s
particulars of claim within 20 days of the date of this order.
3.
The costs of the application shall be costs in the
action.
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT
ADV E COLEMAN
APPLICANT’S
ATTORNEYS
MW
NOTHNAGEL ATTORNEYS
COUNSEL
FOR RESPONDENT
ADV N HAINSWORTH
RESPONDENT’S
ATTORNEYS
SCHULTZ MMUOE INC
DATE
OF HEARING
10 MAY 2018
DATE
OF JUDGMENT
10 MAY 2018