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[2017] ZAGPJHC 412
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Patel v Dorasamy (2015/41464) [2017] ZAGPJHC 412 (22 September 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 2015/41464
Not
reportable
Not
of interest to other judges
Revised.
22/9/2017
In
the matter between:
PATEL,
SORAYA Applicant
(Defendant
in main case)
and
DORASAMY,
REKHA Respondent
(Plaintiff
in main case)
JUDGEMENT
MOKOSE
AJ
[1]
This is an application in terms of which the Applicant seeks a
rescission of a judgement obtained by the respondent on 1 March
2016
for payment of the sum of R280 000,00 against return of the
business and its assets to the Applicant.
[2]
It is common cause that the matter commenced by way of summons.
No notice of intention to defend was filed and judgement
was granted
in favour of the respondent on 1 March 2016.
[3]
The applicant contends that she first became aware of the judgement
on 29 April 2016. She further contended that she was
not in
wilful default as she was not present when the summons was served on
her. Furthermore, she alleges that the Sheriff
blatantly lied
about her refusal to accept service of the summons as she would
immediately have instructed her attorney to defend
the matter.
[4]
A court may on good cause shown, or if it is satisfied that there is
a good reason to do so, rescind a judgement. Such
good cause
includes, but is not limited to, the existence of a substantial
defence. The applicant must furnish an explanation
of his
default sufficiently to enable the court to understand how it came
about and to assess the applicant’s conduct and
motives.
Prejudice and convenience are not factors to consider. For the
requirement of good cause to be satisfied,
there should be evidence
of the existence of a substantial defence and of a
bona fide
held desire by the applicant to raise the defence if the rescission
is granted.
WILFUL
DEFAULT
[5]
Service of the summons was effected on the
domicilium
citandi
of the applicant
being […] H. Drive, Houghton on 26 November 2015 at 15H30.
The summons was served by affixing a copy
to the main door. The
Sheriff further noted that the defendant refused to accept and sign
the document. The applicant
avers in her founding affidavit
that the Sheriff’s allegations on the return of service that
she refused to accept the summons
is a blatant lie. She avers
that she was not home on the day in question as she was at work in
Ga-Rankuwa, Pretoria.
If she had found the summons affixed to
the front door, she would have immediately instructed her attorney to
defend the action.
[6]
Section 43
of the
Superior Courts Act 10 of 2013
provides that:
“…
.(2)
the return of the Sheriff or Deputy Sheriff of what has been done
upon any process of the court, shall be prima facie evidence
of the
matters therein stated”.
It
follows that where a defendant or respondent seek to impeach a return
of service of the sheriff, this must be done on the “clearest
and most satisfactory evidence”. It is not open to anyone
to impeach a return of service on flimsy grounds or when
ther exists
no reasonable basis on which to do so.
[7]
On the face of it, the return is valid. It states:
“
On the 26
th
day of November 2015 at 15H30 and at […] H. Drive, […],
Houghton, JHB the annexed COMBINED SUMMONS, PARTICULARS OF
CLAIM AND
ANNEXURES was served on the DEFENDANT, by affixing a copy of the
original to the main door, at the given address, being
the
defendant’s chosen
domicilium
citandi et executandi
, in
terms of
Rule 4(1)(a)(iv)
, as the DEFENDANT REFUSED TO ACCEPT AND
SIGN THE DOCUMENT.”
The
effect of it is clearly that the applicant refused to acknowledge
receipt of the summons from an officer whose duty is,
inter
alia,
to serve summons.
The applicant further submitted that on a balance of probabilities a
well-educated person such as herself,
would not have been unaware of
the consequences of not accepting service of a summons.
[8]
In
Sussman & Co (Pty)
Ltd v Schwarzer
1960 (3) SA 94
(OPD) at 96 D – H
it
was stated that if one wishes to impeach those facts (a return of
service) then the onus shifts onto him to show by clear evidence
that
although the return shows that the requirements of
Sec. 8(b)
have
been complied with they were in fact not complied with and that the
return is not a proper return.
[9]
The onus shifted to the applicant to show that the facts contained on
the return of service are not correct. The lack
of a
confirmatory affidavit confirming that the applicant was indeed at
her place of employment at the time of service of the summons
by the
sheriff does not aid her case at all. The applicant did not
discharge the onus of disproving the contents of the sheriff’s
return. Accordingly, I am of the view that the applicant was in
wilful default.
BONA
FIDE DEFENCE
[10]
The absence of a bond fide defence must be assessed with reference to
the agreement of sale entered into by the parties.
The relevant
terms are as follows:
“
1.3 Conditions Precedent
This agreement in its entirety, is
subject to the fulfilment of the following condition:
1.3.1 that the purchase is able to
secure a 1 (one) year lease for the business at 50 Grant Avenue,
Norwood, with an option to renew
the lease for 1 (one) further year
by 15
th
May 2015.
1.3.2 …………………
1.3.3 If the condition precedent is
not fulfilled timeously then the provisions of this agreement shall
never become effective and
the
status
quo ante
shall be restored
as far as may be possible.”
[11]
The facts are briefly that the respondent paid a deposit of
R140 000,00 to the applicant on 12 May 2015. A subsequent
payment of R140 000,00 was made on 22 May 2015. However, the
lease was signed on 18 May 2015.
[12]
The applicant submitted that although the lease agreement was signed
on 18 May 2015, the suspensive condition had not failed
as the lease
had been secured prior to its signature. The applicant also
avers that she had been advised by the respondent
that a lease
agreement had been finalised by the 15 May but was only signed on the
18 May 2015. Although the applicant in
her founding affidavit
had contended that she would obtain a confirmatory affidavit from the
owner of the premises that a lease
agreement had in fact been
negotiated in the lead up to the signature on 18 May 2015, an
affidavit indicating the inverse was secured
by the respondent.
[13]
It is notable that the applicant was not a party to the lease
agreement. She is unable to gainsay the version of the
parties
to the lease agreement, being the respondent and owner of the
premises. She relied on inadmissible evidence in her
attempt to
challenge the date when the lease was in fact finalised. As
such, I am of the view that the condition precedent
had not been
fulfilled.
[14]
In trying to indicate that the suspensive condition had been
fulfilled, the applicant further contended that if the condition
had
in fact not been fulfilled, the respondent would not have paid the
balance of the purchase price. I am of the view that
the
respondent had paid the balance of the purchase price as it was an
obligation of the sale agreement. Had she not done
so, she
would have been in breach of the agreement. The fact that a
party performs in terms of a lapsed agreement does not
automatically
re-instate the agreement. If the condition precedent is not
fulfilled, the whole agreement falls away and the
restitution must be
tendered.
Palm
Fifteen (Pty) Limited v Cotton Tail Homes (Pty) Limited 1978(2) SA
872 (A)
[15]
The applicant further avers that the respondent waived the condition
precedent by her conduct. The respondent continued
to run the
business for a further period of 5 (five) months prior to alleging
that the contract was void and unenforceable.
Furthermore, the
respondent corresponded with the owner of the premises about the
split of the rent for the month of May.
The applicant avers
that such behaviour constituted a cleat tacit waiver of the condition
precedent.
[16]
Clause 10.8 of the agreement of sale signed by the parties stipulates
as follows:
“
No latitude, extension of time
or other indulgence……….in respect of a
performance of any obligation hereunder……and
no single
or partial exercise of any right by a party shall under any
circumstances be construed to be an implied consent by such
party or
operate as a waiver or novation of, or otherwise affect any of that
part’s rights in terms of or arising from this
agreement……”
[17]
I am of the view that a continuation of the lease and running of the
business was not a re-instatement of the agreement between
the
parties. As such, no case for a rescission exists and the
matter falls to be dismissed.
Accordingly,
I make the following order:
(i)
The application for rescission
of the judgement is dismissed;
(ii)
The respondent is granted costs
on an attorney and own client scase on account of the deficient and
frivolous case put up by the
applicant, which matter had very little
prospect of success.
_____________________
MOKOSE
AJ
DATE:
10 MARCH 2017