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[2020] ZAGPJHC 437
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Rieks Towing (Pty) Ltd and Another v Nienaber and Another (8553/2019) [2020] ZAGPJHC 437 (28 August 2020)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: 8553/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED YES/NO
28/8/2020
In
the matter between:
RIEKS
TOWING (PTY) LTD
FIRST APPLICANT
LOUWRENS
RIEKERT SNR
SECOND APPLICANT
And
WILLEM
CHRISTIAAN NIENABER
FIRST RESPONDENT
THE
SHERIFF OF THE ABOVE HONOURABLE
SECOND RESPONDENT
COURT,
TSHWANE NORTH
JUDGMENT:
APPLICATION FOR RESCISSION OF JUDGMENT
VUKEYA
AJ
[1]
This is an application for rescission of a judgment granted by
default against the First
and Second Applicants in favor of the First
Respondent on 05 June 2019. The Applicants approach this court for
relief in the following
terms:
1.1
That the order granted on 05 June
2019 under Case Number 08553/2019 by the Honorable Justice Siwendu,
be rescinded or set aside;
1.2
That the Warrant of Execution issued
by the Registrar of this Court under the same Case Number be
rescinded and set aside;
1.3
That the removal of any assets
/items in the Warrant of Execution referred to above and/or itemized
in the Sheriff’s inventory,
be suspended pending the
finalization of the Rescission Application;
1.4
That the Applicants be granted
condonation to institute and prosecute the Application;
1.5
That the Costs of this Application
be costs in the cause, unless any Party elects to oppose the relief
sought herein, in which event,
costs will be sought against such an
opposing Party.
[2]
The Parties are at loggerheads with each other because of an oral
Lease Agreement which,
according to the Respondent, was concluded
between him personally and the Applicants. The alleged Lease
Agreement was in respect
of a property described as Remaining Extent
[....] of Ponoma Estate Agricultural Holdings, Pomona Kempton Park,
situated at [....]
Hawthorne Avenue, Pomona, Kempton Park.
[3]
It is common cause that the First Applicant was to act as the Lessee
in respect whereof
it would pay for occupation and rent in the amount
of R25 000, 00 per month. It was disputed that the Agreement was
to be
cancelled on a month’s written notice however the
plaintiff avers that he gave a month’s notice that the premises
would
be vacated by Rieks Towing in April 2018.
[4]
The Applicant alleges that the indebtedness claimed accrues from
outstanding invoices for
the period December 2016 to March 2019 in
the amount of 350 000, 00. It also relates to unpaid invoices
for the period 1 April
2018 to 1 March 2019 amounting to 300 000,
00 plus a claim for refuse removals and water and sewerage fees.
[5]
On or about 05 June 2019 the matter was placed on the Roll for
hearing and the Applicants
went to Court on that day seeking a
postponement of the main Application. When their Application for a
postponement was refused
the First Respondent (Applicant in the main
Application) obtained an Order by Default against the Applicants.
[6]
The Honorable Justice Siwendu granted an Order against the
Applicants, in the following
terms:
1.
Payment in the sum of R350 000,
00 (Three Hundred and Fifty Thousand Rand), in respect of arrear
rent; and
2.
Payment in the sum of R5 646.15
(Five Thousand Six Hundred and Forty Six rand and fifteen cents) in
respect of outstanding
refuse removal and water sewerage (sic)
account;
3.
Interest on the aforesaid sum at the
prescribed rate of interest, a tempora morae calculated from 06 March
2019 to date of payment,
both days inclusive;
4.
Costs of the Application on an
Attorney Client scale.
[7]
It is important to note at this stage that rescission of judgment has
been conceded by
the First Respondent in respect of the Second
Applicant. The First Respondent only seeks a punitive cost order
against the Second
Respondent for launching the Application.
[8]
After the Judgment was obtained against the First and Second
Respondents, it took them
eight (8) months to bring an Application
for rescission of judgment and this, according to the First
Respondent, was after the
Sheriff attended to their property to
remove attached assets.
[9]
The Applicants state that they bring this Application in terms of
rule 31 (2); alternatively
Rule 42; and alternatively, the common
law.
[10]
The provisions of Rule 42 (1) are as follows:
“
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:
An order or judgment
erroneously sought or erroneously granted in the absence of any party
affected thereby;
An order or judgment
in which there is an ambiguity, or a patent error or omission, but
only to the extent of such ambiguity, error
or omission;
An order or judgment
granted as a result of a mistake common to the parties”.
[11]
And Rule 31 (2) (a) provides that:
a)
Whenever in an action the claim or,
if there is more than one claim, any of the claims is not for a debt
or liquidated demand and
a defendant is in default of delivery of
notice of intention to defend or of a plea, the plaintiff may set the
action down as provided
in sub-rule (4) for default judgment and the
court may, after hearing the evidence, grant judgment against the
defendant or make
such order as to it seems meet.
b)
A defendant may within 20 days after
he has knowledge of such judgment apply to court upon notice to the
plaintiff to set aside
such judgment and the court may, upon good
cause shown, set aside the default judgment on such terms as to it
seems meet.
[12]
It is clear from the above that Rule 32 (2) (a) and Rule 42 have no
application in the present matter because
the judgment was not
granted erroneously against the Applicants
or
as a result of a mistake common to both parties and neither is there
an ambiguity, or a patent error or omission in the granting
of the
judgment. It is common cause that the judgment was obtained in the
absence of the Applicants because on the date of the
hearing, 05 June
2019, the First and Second Applicants only sent counsel to seek a
postponement and when their Application was
unsuccessful, the First
Respondent obtained judgment against them. Judgment was obtained
against the First and Second Applicants
by default and therefore, I
will deal with the Application for Rescission of the judgment in
terms of the common law.
[13]
When bringing an Application for rescission of judgment in terms of
the common law, the applicable principles
are clearly set out in
Erasmus (B1 – 307) as follows:
“
at
common law a judgment can be set aside on the following grounds:
fraud, Justus error (on rare occasions), in certain exceptional
circumstances when new documents have been discovered, when judgment
had been granted by default and, in the absence between the
parties
of a valid agreement to support the judgment, on the grounds of
Justus causa”
[14]
In
Vilvanathan and another v Louw NO
2010 (5) SA 17
(WCC)
,
it was held that:
“
The
Appellate Division and the Supreme Court of appeal have laid down
that at common law ‘it is clear that in principle and
in the
long standing practice of our courts’ that there are two
‘essential elements of “sufficient cause”
for
rescission of a judgment by default’.
These
are –
That
the party seeking relief must present a reasonable and acceptable
explanation for his default; and
That on the merits
(i.e. of the action) such party has a bona fide defence which, prima
facie, carries some prospect of success.
Both these elements
must be present”.
[15]
The Court has discretion, at common law, to set aside or rescind a
judgment obtained by default if sufficient
cause or good cause has
been shown. In
Chetty v Law Society, Transvaal
[1985] 2 ALL
SA 76
(A)
sufficient cause was said to include a reasonable and
accepted explanation for the default and that on the merits the party
has
a bona fide defence which carries prima facie prospects of
success. See also
Promedia Drukkers & Uitgewers (Edms) Bpk v
Kaimowitz and Others
1996 (4) SA 411(C)
at page 417. In
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 354
(A)
at
352 – 353A it was held that the explanation for the default
must be sufficiently full to enable the court to understand
how it
came about and to assess the Applicant’s conduct and motives.
[16]
The Applicants state in an affidavit deposed to by Louwrens Riekert
that they were not in willful default.
Counsel had been briefed on 05
June 2019 to seek a postponement of the main Application and when a
postponement was refused default
judgment was granted. The
Applicant’s new attorneys of record requested a transcription
of the proceedings during August
2019 and in September they received
an incomplete transcription. Their Attorneys again requested another
transcription which unfortunately,
they never received. A follow up
was made during December 2019 and in February 2020; the transcript
had still not been received.
These hiccups made it impossible to be
advised whether to take the judgment on appeal, or whether to apply
for rescission of the
judgment. The Applicants submitted that the
delay is not undue; and further that they have a bona fide defence
which should justify
the setting aside of the judgment.
[17]
The First Respondent submits that the Applicants have failed to
explain in detail the delay and that their
reliance on the inability
to obtain the transcribed record is insignificant because the record
was not necessary for purposes of
applying for rescission of
judgment. According to the First Respondent, the Applicants failed to
deal with the delay between 5
June 2019 and 16 August 2019 when they
first requested for the transcript; they also failed to explain the
delay between 06 September
2019 and 04 December 2019 and the delay
between 4 December 2019 and 7 February 2020.
[18]
The First Respondent argues that the current application was only
prompted when execution was pursued by
the First Respondent and that
the First Applicant’s failure to answer to the merits of the
main Application is an indication
that the Applicants are employing
delaying tactics pointing at the absence of bona fides.
[19]
In
Grant v Plumbers (Pty) Ltd
1949 (2) SA 470
(O)
Brink
J held that in order to show good cause an Applicant should comply
with the following requirements:
a)
He must give a reasonable explanation of
his default;
b)
His application must be made bona fide;
c)
He must show that he has a bona fide
defence to the plaintiff’s claim.
[20]
It is clear from
Chetty v Law Society(supra), Transvaal; Promedia
Drukkers & Uitgewers (Edms) Bpk v Kaimowitz and Others (supra)
that in terms of common law Rescission Applications, the Court has a
wide discretion in determining whether the Defendant has given
a
reasonable explanation for his default, and it is also accepted that
“good cause and sufficient cause are used interchangeably”.
The First Respondent’s contention is that the Applicants have
failed to satisfy the requirements in
Grant v Plumbers
as they
have not shown sufficient cause for the granting of the Application
and their Application is not bona fide.
[21]
It is common cause that the Rescission Application was instituted
approximately 8 months after judgment
was obtained. It can be
reasonably concluded or presumed that the Applicants became aware of
the judgment obtained against them
on the same day of the judgment
being granted. Such can be deducted from the explanation that Counsel
went to court on 5 June 2019
to ask for a postponement which was
refused. The applicants explain how they went through a string of
attempts to get the record
transcribed without success. The
explanation given is that they were waiting for the transcript in
order to decide whether they
would appeal the judgment or whether
they were going to bring a Rescission Application.
[22]
Except for stating that their new Attorneys requested a transcription
of the record on 16 August 2019, the
applications have given no
explanation regarding the dates from 05 June 2019 to 16 August 2019;
06 September 2019 and 04 December
2019 and the delay between 4
December 2019 and 7 February 2020. During the period between 05 June
2019 and 16 August 2019 the Applicants
should have opted to apply for
a rescission of the judgment even without the transcripts because all
they needed to do was to show
that they were not in willful default;
their application was bona fide and that they had a bona fide defence
to the claim like
they did eight months later.
[23] I
am inclined to agree with the First Respondent that the Application
was prompted by the Warrant of Execution
and the attachment of the
property of the Applicants by the Sheriff. The Applicants did not
show much enthusiasm to pursue the
Application for rescission of
judgment and they showed a certain level of laxity until the
Applicant set the writ in motion. The
First Applicant submitted that
in order to show that his Application is bona fide, he tendered to
pay the entire judgment debt
into a trust account of his Attorney so
as to furnish security for the claim but the First Respondent refused
the offer. In my
view, that should have been done soon after the
Applicants learned of the judgment granted against them then pursue
the Application.
[24]
The Applicants relied on the following defences to show that they
have a bona fide defence to the plaintiff’s
claim
24.1
The First
Respondent does not have the necessary locus standi in iudicio to
institute the main application.
24.1.1
According to the Applicants, the Lease
Agreement was not concluded with the First Respondent in his personal
capacity, it was in
fact concluded with the First Respondent’s
daughter and the First Respondent only acted in a representative
capacity. In
response to the above defence is that the Respondent
submits that it has been the First Respondent’s version from
the beginning
that his daughter Linda Nienaber is the registered
owner of the immovable property and that she provided him with the
right and
authority to use and lease the property at his absolute
discretion. It is also the Respondent’s version that invoices
were
rendered in the name of the First Respondent and monies paid for
rental were also paid in the First Respondent’s personal
account. The Applicants have chosen to ignore this averment in the
founding affidavit of the First Respondent and argue that there
is
some confusion regarding the identity of the lessor.
24.1.2
It is trite that a party who institutes
proceedings must allege and prove its
locus
standi
and the onus of establishing
that onus rests on that particular Applicant. The First Respondent is
the Applicant in the main Application
and avers that from the
beginning he disclosed that his daughter is in fact the registered
owner of the property but that he had
the right to use and lease the
property at his absolute discretion. In order for a litigant to have
locus standi
,
such litigant must have a direct and substantial interest in the
subject matter of the proceedings. It cannot therefore be validly
argued that because the First Respondent is not the registered owner
of the property then he does not have
locus
standi
even though he has a direct and
substantial interest in the matter by virtue of the rights conferred
upon him by his daughter.
I find that the Applicant’s locus
standi defence
is not a
bona fide
defence.
24.2
The indebtedness claimed in respect of
the lease agreement is not due, owing and payable;
24.2.1
The Applicants allege that the Agreement
was cancelled in March 2018 where after the Applicants vacated the
premises allegedly during
April 2018; alternatively, the First
Applicant no longer occupied the leased premises as of December 2018
and at best, the First
Respondent could only claim for 8 months’
arrear rental (although the applicants do not concede to these) as
opposed to the
14/22 months claimed by the First Respondent.
Regarding the second defence of the Applicants i.e. cancellation of
the agreement
by the Second Applicant on behalf of the First
Applicant, the First Respondent submits that the Applicants have
failed to state
how, when and where the conveyance of the
cancellation took place. As a result, the cancellation defence is to
be found to be vague,
laconic and evasive, confirming the absence of
bona fides on the part of the Applicants. According to the
Respondent, the Applicants
remained in occupation of the property
until December 2018.
24.2.2
In Joob Investment v Stocks Mavundla Zek
2009 (5) SA 1
(SCA) Van Loggernberg J stated that:
“
all
that the court enquires, in deciding whether the defendant has set
out a bona fide defence, is (a) whether the defendant has
disclosed
the nature and grounds of his defence; and (b) whether on the facts
so disclosed the defendant appears to have, as to
either the whole or
part of the claim, a defence which is bona fide and good in law”.
24.2.3
The Applicant has disclosed the nature and
grounds of his defence and such facts, in my view, do set out the
facts upon which the
Applicant relies. The fact that the Respondent
disagrees with the Applicant only confirms that there is a clear
dispute of facts
which can only be cleared by going to trial. I am
convinced that there is a reasonable possibility that the Applicant’s
defence
of cancellation may succeed on trial.
24.3
The actual terms of the oral
agreement between the parties are not common cause; therefore the
true extent of the parties’
rights and responsibilities can
only be established if the terms are established. The Applicants
submit that there is a dispute
of facts herein.
24.3.1
It is the Applicants’ defence that
the amount claimed for outstanding refuse removals and water sewerage
account, is an obligation
for which no legal basis exist as it was
never a term of the agreement that those amounts be paid by the First
Applicant. According
to the Respondent, the Applicants have made
incorrect assertions, misconstrued facts and provided the court with
a version that
is riddled with falsities and such a version stands to
be rejected.
24.3.2
If a verbal agreement has been concluded
between parties, it is often very difficult to prove the terms of
such a contract. Both
parties may agree that there is indeed an
agreement, albeit verbal, but may disagree on its terms. Often the
parties will aver
that the one party is misrepresenting facts or is
making incorrect assertions. Indeed so, such incorrect assertions can
be cleared
through cross examination in a trial. The Applicants have
presented a defence which is valid in law. They deny that they had an
obligation in terms of the agreement to pay for refuse removals which
the Respondent has claimed for. This again confirms a clear
dispute
of facts and I find that it is a bona fide defence.
[25]
It is trite that in cases such as these, an Application who seeks an
indulgence from the Court for his default,
must give a full and
satisfactory explanation for whatever delays have occurred and such
explanation must cover the entire period
of delay. See
Ferreira v
Ntshingila
1990 (4) SA 271
(A)
and
Van Wyk v Unitas
Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC)
[26]
In my view the Applicant failed to give an explanation to cover the
whole period of his default. The explanation
given that the
applicants were waiting for the transcribed record of the proceedings
of the 5
th
of June 2019, does not cover fully the period
of the delay, especially the period between 05 June 2019 and 16
August 2019. The
explanation does not also carry much weight in favor
of the applicants because the order would have been obtained by
presenting
to the court facts contained in the main Application,
nothing more and nothing less. I therefore find that the First
Applicant
has failed to give a reasonable explanation for his
default.
.
[27]
In
Zealand v Malborough
1991 (4) SA 836
(SECLD)
at 838
D the following remark was made by Jones J:
“
A
measure of flexibility is required in the exercise of the court’s
discretion. An apparently good defence may compensate
for a poor
explanation…”
[28]
The reasons for the default should not be looked at in isolation, but
must also be viewed in light of the
nature of the defence relied on.
The circumstances of the case as a whole also play a role in making a
determination whether the
Applicant has shown good cause for the
granting of rescission. This is one of those cases where the First
Applicant has failed
to explain sufficiently its default but has good
defences to the Respondent’s claim. I have no doubt that from
the beginning
the Applicants intended to apply for rescission of
judgment in order to defend the main Application but they were lax
and dragged
their feet probably with the hope that the First
Respondent would not obtain a warrant of execution against their
property.
[29]
In
Harris v Absa Bank Ltd t/a Volkskas
2006 (4) SA 527
(T)
at para [10] and [11] it was held that:
“
A
steady body of judicial authorities has held that a court seized with
an application for rescission of judgment should not, in
determining
whether good or sufficient cause has been proven, look at the
adequacy or otherwise of the explanation of the default
or failure in
isolation. Instead the explanation, be it good, bad or indifferent,
must be considered in the light of the nature
of the defence, which
is an important consideration and in the light of all the facts and
circumstances of the case as a whole”
[30] I
exercise my discretion and conclude that despite the fact that the
applicants did not fully explain the
delay as required, they have
good defences in law. Having accepted that the Applicants have good
defences to the Respondent’s
claim I am also of the view that
there is a clear dispute of facts between the parties and that the
Applicant has shown good cause
for the granting of rescission.
Application to
strike out
[31]
With the Application for rescission of judgment also came an
Application by the First and Second Applicants
to strike out certain
paragraphs in the Respondents’ Answering affidavit in terms of
Rule 6 (15) of the Uniform Rules of
Court on the grounds that such
are irrelevant, alternatively scandalous, further alternatively
vexatious as they include hearsay
evidence which is not confirmed or
substantiated by confirmatory affidavits.
[32]
Rule 6 (15) of the Uniform Rules of Court provides that:
“
The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant,
with an
appropriate order as to costs, including costs as between attorney
and client. The court shall not grant the application
unless it is
satisfied that the applicant will be prejudiced in his case if it be
not granted”
[33]
There are two requirements to be satisfied before the Court can grant
the striking out of any matter from
an affidavit and these are:
1.
The matter to be struck out is scandalous,
vexatious or irrelevant;
2.
The applicant must satisfy the court that
he will be prejudiced if the matter is not struck out.
(See
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA)
at 733 –B)
[34]
The Applicant avers that the paragraphs listed in the Rule 6 (15)
application stand to be struck out as
the utterances such as that the
applicant lied under oath are a personal attack on the Second
Applicant; some are repetitive in
nature and contain arguments
utilizing vindictive, intimidatory and vexatious language and
therefore they stand to be struck out
with costs against the
Respondent.
[35]
The Respondent submitted that allegations of untoward conduct,
dishonesty and the abusive nature of the
Application are relevant as
to the bona fides of the Applicants. They are an integral element of
any rescission application which
have to be taken into account in
determining the Application. According to the Respondent, none of the
alleged offensive paragraphs
constitute hearsay evidence as alleged
by the Applicants and therefore the Application to strike out stands
to be dismissed with
costs.
[36]
The Applicant prays for the striking out of paragraphs 21; 24 -27; 31
– 38; 44-45; 53 – 56;
59; 61; 63; 72; 76; 83; 85; 91; 93;
94; 97 – 112 of the Respondent’s Answering Affidavit.
Except for generally pointing
out that these paragraphs must be
struck out for the reasons mentioned above, the applicant does not
particularly mention the cause
of concern for each one of them.
[37]
What stands out from rule 6 (15) and the most important consideration
is whether the Applicant will be prejudiced
in his case if the
offending paragraphs are allowed to stand. First the Court must find
whether these paragraphs are indeed scandalous
vexatious and
irrelevant as alleged by the Applicant.
[38]
Scandalous matter was defined as allegations which may or may not be
relevant but which are so worded as
to be abusive or defamatory and
Vexatious matter are allegations which may or may not be relevant but
are worded as to convey an
intention to harass or annoy. Irrelevant
matters are allegations which do not apply to the matter in hand and
do not contribute
one way or the other to a decision of such matter.
(See
Tshabalala-Msimang v Makhanya
[2007] ZAGPHC 161
;
[2008] 1 ALL SA 509
(W)
at 516;
Breedenkamp v Std Bank of
South Africa
2009 (5) SA 304
GSJ
at 321 C-F).
[36] I
am not persuaded that paragraphs 24 -26; 31 – 37; 44 –
45; 53; 55; 61; 63; 72; 83; 85; 91;
93; 94; 97; 98; 101 – 112
contain any matters that are scandalous, vexatious or irrelevant to
the issues in this case. The
statements made by the Respondent in the
above paragraphs are fair and essential in the conduct of his case. I
therefor exercise
my discretion to refuse the Application to strike
these particular paragraphs out.
[37] I
find paragraphs 21; 27; 38; 54; 56; 59; 76 and 100 to be scandalous
and vexatious because they in general
insinuate an element of
dishonesty on the part of the Applicant and that they are abusive in
nature as they also suggest that the
Applicant pays no heed to the
oath. I find that these statements are prejudicial to the applicant
in that he is already depicted
as a person who is not trustworthy and
who lacks credibility even before credibility findings are made in a
Court of law. These
paragraphs are struck out by reason of being
scandalous and vexatious.
[38]
In the circumstances I make the following order:
38.1.
The Judgment granted against the First and
Second Applicants on 05 June 2019 under case number 08553/2019 is
hereby rescinded;
38.2.
The warrant of execution issued by the
registrar of this Honourable Court under case number 8553/2019 is
hereby rescinded and set
aside;
38.3.
The removal of any items /assets in the
warrant of execution referred to above, itemized in the Sheriff’s
inventory is hereby
suspended;
38.4.
The Applicants are granted condonation to
institute this application;
38.5.
The application to strike out is partially
granted and partially dismissed, as per paragraphs 36 and 37 of this
judgment.
38.6.
The Applicants shall pay the costs of the
Rescission application and such costs shall exclude costs for the
Rule 6 (15) application,
for which the court orders that each party
pays its own costs.
VUKEYA
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION - JOHANNESBURG
Heard:
28 July
2020
Delivered:
August 2020
Appearances:
Counsel
for the Applicants: J De Beer
Applicant’s
Attorneys:
Couzyn
Hertzog & Horak
Brooklyn
Pretoria
E-mail:
oosthuizen@couzyn.co.za
Ref:
Mr Oosthuizen/ ME/R364
Counsel
for the respondents: Van der Merwe
First
Respondent’s Attorneys:
Minnie
and Du Preez Inc
Tel:
012 391 0871/3
C/O
Legal Serve centre
Johannesburg
(North Office)
Charmaine
Girbens Attorneys
Tel:
011 333 1054
Mobile:
074 543 7552
Email:
marius@minnieattorneys.co.za