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[2010] ZAWCHC 500
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Mohammed Ebrahim t/a Mitchell's Plain Fish Wholesalers v Nexclo No 28 CC (15175/2008) [2010] ZAWCHC 500 (18 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO: 15175/2008
MOHAMMED
EBRAHIM t/a MITCHELL'S PLAIN FISH
WHOLESALERS
…........................................................................................
Applicant
and
NEXCLO
NO 28 CC
…........................................................................
Respondent
JUDGMENT
DELIVERED ON THIS 18
th
DAY
OF OCTOBER 2010
FORTUIN
J:
[1]
This is an opposed application to rescind a summary judgment granted
against Applicant in his absence under Case No: 15175/2008.
Further,
that Applicant be granted leave to oppose the action and that
Respondent pay the costs of this application.
[2]
Respondent opposed the relief claimed by Applicant on the following
basis:
2.1.
Applicant
did not explain the reason for failing to appear at Court
to
oppose the summary judgment which was sought by
Respondent.
2.2
Applicant
does not have any defence to Respondent's action.
COMMON
CAUSE
[3]
During July 2008, Respondent issued a summons under Case No:
11490/2008 against Applicant on terms of goods sold and delivered
in
the amount of R176 101.14.
[4]
On 18 September 2008, Respondent's attorney delivered a Notice of
Withdrawal of action in respect of the abovementioned Case
Number
and, on the same date, instituted a new action on the same cause of
action against Applicant under Case No: 15175/2008.
[5]
The summons was served on Applicant on 25 September 2008 at his shop
in Mitchell's Plain.
[6]
Applicant filed a Notice of Opposition, which notice was served on
Respondent's attorneys at the Court on 1 October 2008.
[7]
On 14 October 2008, an application for summary judgement, which was
set down for hearing on 31 October 2008, was served on Applicant's
chosen service address, being Mitchell's Plain Fish Wholesalers, CC
24 Losak Avenue, Epping 2.
[8]
In response to the application for summary judgment, Applicant filed
a Notice of Opposition, together with an Affidavit, setting
out his
defences and the losses suffered as a result of the defective
product, which document was prepared by Mr Duvinage, who
accepted
service of the application on behalf of Applicant.
[9]
On 31 October 2008, the application for summary judgment was
postponed, on Respondent's version, to 10 November 2008, in order
for
its attorneys to consider "what to do", given the opposing
papers received from Applicant.
[10]
Applicant was not present at Court on 31 October 2008 when the matter
was called, and no one contacted Applicant in regard
to the matter.
[11]
Applicant states in his application that he was under the
bona
fide,
but
mistaken, belief that the affidavit deposed to in response to the
summary judgment application was in respect of the action
and that he
was not aware that he should be in Court on 31 October 2008, as the
matter was dealt with by Mr Duvinage, who had prepared
the opposing
papers. Had he known that the matter was set down for hearing on 31
October 2008, he would have
[12]
Applicant received no notification that the application for summary
judgment was in fact postponed to 10 November 2008, nor
why it was
postponed.
[13]
On 10 November 2008, Respondent alleges that the court file was not
in order and the matter was postponed to 12 November 2008
before
judge Ndita, who was seized with the matter on the 10
th
.
[14]
Applicant was not present when the matter was postponed form 10
November to 12 November 2008, as he received no notification
that the
matter was postponed and or enrolled for hearing on those dates.
[15]
On 12 November 2008, on Respondent's version, Applicant's name was
called inside and outside Court, but he was not present,
whereafter
the Honourable Judge Ndita granted summary judgment in the absence of
Applicant. It would appear that Ndita J was not
advised by Respondent
that Applicant was not informed of the postponement dates resulting
in her instruction to call Applicant's
name, both inside and outside
of court, before she considered the matter.
[16]
On 14 November 2008, Applicant delivered a notice to the Registrar of
this Court, as well as to Respondent's attorney, enquiring
about the
date on which the matter should be placed on the Roll for hearing, as
Applicant had received no further communications
from Respondent, his
attorneys or the Court after delivery of the opposing papers.
[17]
Applicant submits that he was not in wilful default when he did not
appear on 31 October 2008. He believed that the matter
was opposed
and that a date would be allocated in order for the parties to lead
their evidence and properly argue the matter before
a Judge.
[18]
The fact that Respondent failed to notify Applicant of the
postponement and the fact that Respondent failed to notify the court
that Applicant was not aware of the postponement dates, raises
serious concerns. It is trite that, when dealing with a litigant
who
appear in person, extra care should be taken in ensuring that such a
litigant is aware of his/her rights, as well as the processes
of
Court. From the record of the hearing on 12 November 2010, it is
clear that the honourable Judge Ndita took extra care in ascertaining
whether Applicant, who was unrepresented, was present.
[19]
It is clear from the action, the notices and the Affidavits filed by
Applicant that he had always intended to oppose the matter.
[20]
The respondent's version is in short that the alleged defects in the
fish does not relate to the fish in respect of which the
respondent's
claim is based and that the alleged counterclaim amounts to R54
351,00 and therefore does not exceed Respondent's
claim.
[21
] The issues to be determined are the following.
What
are the legal principles with regards to rescission of an order made
by a court;
Do
the facts in this matter comply with these requirements.
[22]
It is trite that an applicant has 3 grounds available on which to
base an application for rescission of judgment. The common
law and
rules 31(2) and 42 of the Uniform rules may provide grounds for a
rescission of a judgment.
[23]
The grounds in terms of the common law are as follows:
(a)
Applicant must show sufficient cause;
(b)
Such cause should have existed at the date of the final judgment; and
There
should be a causal connection between the circumstances that gave
rise to the claim for rescission and the judgment.
[24]
Rule 31(2)(b) reads as follows:
"A
defendant may within 20 days after he or she 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."
[25]
Rule 42 of the uniform rules also provides for variation and
rescission of orders. Sub-rule 1 sets out the grounds on which
an
application of the rule can be brought:
(a)
Where an order or judgment was erroneously sought or granted in the
absence of any affected party;
(b)
Where there is an ambiguity o patent error or omission to the extent
of that ambiguity, error or omission.
(c)
Where an order or judgment was granted as a result of a common
mistake to the parties.
[26]
The grounds on which an application for rescission in terms of the
common law can be brought are very narrow. The grounds subsequently
introduced in terms of rules 31 and 42 are meant to add to these
narrow measures.
[27]
The application
in
casu
will
now be tested for compliance with the grounds listed in one of the
abovementioned rules. It is clear from the papers that Rule
31 is not
applicable as no confession or default judgment is present
[28]
In
De
Wet and Others v Western Bank Ltd
1
it
was held that this inherent jurisdiction of the court, does not
include the right to interfere with the principle of finality
of
judgments, other than in circumstances specifically provided for in
the rules or at common law. This is also the view I subscribe
to.
(See especially
Lazarus
and Another v Nedcor Bank Ltd, Lazarus and Another v Absa Bank Ltd
1999(2) SA 782 (WLD).
[29]
I am further of the view that the facts of this mater falls squarely
within Rule 42(1 )(a), i.e. that the order was erroneously
sought or
granted in the absence of an affected party.
[30]
I am further of the view that Applicant should be granted leave to
oppose Respondent's action.
[31]
In the circumstances,
(a)
The summary judgment granted in the absence of Applicant under case
no 15175/2008 is rescinded;
(b)
Applicant is granted leave to appose the action.
(c)
Respondent is to pay the costs of this application.
FORTUIN, J
1
1979(2)
SA 1031 (A)