About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 592
|
|
Versveld v Ers Business Systems (Pty) Ltd t/a Nashua, Pretoria (A252/08) [2010] ZAGPPHC 592 (5 March 2010)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
REPUBLIC
OF SOUTH AFRICA
Case
No:
A
252/08
Date:
5 March 2010
Not
reportable
Not
of interest to other judges
In the matter
between:
G
VERSVELD
.......................................................................................................................................
Appellant
vs
ERS BUSINESS SYSTEMS
(PTY) LTD
t/a NASHUA,
PRETORIA
.................................................................................................................
Respondent
JUDGEMENT
CORAM
:
SAPIRE, AJ et DOLAMO, A J:
SAPIRE, AJ:
This is an appeal
against a judgement of the Magistrate’s Court for the District
of Pretoria, held at Pretoria. In terms of
the judgement an
application by the Appellant for rescission of a default judgement
was refused with costs.
The events leading
up to this point stem from a contract in which the Respondent hired
equipment to a close coiporation of which
the Appellant was the sole
member. The Appellant is alleged to have bound himself as surety for
and co principal debtor with the
close corporation for the
obligations of the latter ode to the PvCspondent. The close
corporation was liquidated before the lease
expired and the
whereabouts of the equipment are at this stage unknown.
The Respondent has
sought to recover from the Appellant the amount it claims as being
due to it under the Agreement of Lease. To
this end the Respondent
issued a Summons in the Magistrate’s Court Pretoria and caused
the Summons to be served at an address
which it alleged to be a
domicilium citandi et executandi chosen by the Appellant.
It is clear that the
Appellant did not receive service of the f ummons and was unaware
that default judgement had been taken by
the Respondent until the
Sheriff arrived at the Appellant’s home in order to serve a
Warrant of Execution. The Appellant
then made an application to
rescind the Default Judgement but was unsuccessful therein and now
seeks to have the Magistrate’s
judgement refusing set aside.
There is only one
point for decision in this matter, that being whether the Summons had
been properly served. I have already mentioned
the fact that the
Respondent alleges that the address at which the Summons was served
was the domicilium chosen by the Appellant.
Scrutiny of the
documents in this matter comprising the lease of the equipment and
the suretyship on which the Respondent’s
claim is based reveal
that the address in question was chosen by the Appellant on behalf of
the principal debtor. Nowhere in the
documents is there a choice by
the Appellant of a domicilium for service on him as the surety.
As the service of
the Summons was effected only by leaving a copy at the premises in
question the Appellant’s contention that
he never received
service and was unaware of the Summons must be accepted.
The Magistrate did
not consider whether proper service had taken place when she
dismissed the application for rescission. In this
she erred for the
judgment was defective and unenforceable on this account. I avoid the
use of the words nul and void in this connection.
Because of this the
merits of the defence do not have to be examined and any delay in
bringing the application and this appeal should
be condoned.
Counsel for
Respondent referred the Court to Leo Manufacturing CC vs Robor
Industrial (Pty) Ltd t/a Robor Stewarts and Lloyds,
2007 (2) SA 1.
This is a judgement of the Supreme Court of Appeal and if
undistinguishable is binding on this Court.
The headnote of the
judgement reads:
“
An
applicant for rescission of a default judgement will not be
successful in his application if he does not set out the grounds
of
his defence to the Respondent’s claim in the Summons even where
the default judge vent was void aborigine. ”
A distinguishir
feature of the present case is that the Appellant did set forth in
his Affidavit in support of the application a
number of contentions
on which he would rely as a defence to the Respondent’s claim.
As the judgement in this matter was
founded on a Summons which had
not been served it is not necessary to enquire into the merits of the
Appellant’s contention
and the application for rescission
should have been granted.
In all the
circumstances of this case it is not of decisive consequence whether
the application for rescission was made in terms
of the Rules of the
Magistrate’s Court or in terms of the Common Law.
As the central issue
of service is to be decided in the Appellant’s favour.
The appeal must
succeed.
The order of this
Court is:
1. The judgement of
the Magistrate dated the 21
s1
of December 2007 is set
aside.
2. The default
judgement entered against the Appellant on 8
lh
February
2007 is set aside.
3. The Respondent is
to pay the costs of this appeal.
SAPIRE
ACTING JUDGE OF
THE NORTH GAUTENG HIGH COURT
PRETORIA
I agree:
DOLAMO
ACTING JUDGE OF
THE NORTH GAUTENG HIGH COURT
PRETORIA
APPELLANTS
ATTORNEYS: VON REICHE INCORPORATED
Schoeman Street 765
ARCADIA, PRETORIA
P O Box 28742,
SUNNYSIDE, 0132
Tel: (012) 343-0377
Fax: (012) 343-0376
Ref: Mr Von
Reiche/mvdm/Vl 125
RESPONDENT’S
ATTORNEYS: PAGEL SCHULENBURG INC
C/o
HACK STUPEL
&
ROSS
ATTORNEYS
STANDARD BANK
CHAMBERS
CHURCH SQUARE
PRETORLA
Ref: S
Schulenburg/ws/R00947/C.J. VAN WYK/HB8656
APPELLANTS COUNSEL:
ADV W J ROOS
RESPONDENT’S
COUNSEL: ADV H F GEYER