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[2010] ZAGPPHC 306
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Brits and Another v Nedbank Ltd and Others, In Re; Nedbank Ltd v Nel and Another (16497/07) [2010] ZAGPPHC 306 (16 April 2010)
FMT
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 16497/07
DATE: 16 APRIL
2010
In the matter
between:
OCKERT
JOHANNES LODEWICKUS
BRIT'S
...............................................................
1
st
APPLICANT
LEONORA
NELLY
BRITS
.................................................................................................
2
nd
APPLICANT
And
NEDBANK
LTD
.................................................................................................................
1
st
RESPONDENT
JOHANNES WOUTER
NEL
...........................................................................................
2
nd
RESPONDENT
MARIA ALETTA
NEL
.....................................................................................................
3
rd
RESPONDENT
In re:
NEDBANK
LTD
............................................................................................................................
PLAINTIFF
And
JOHANNES WOUTER
NEL
..............................................................................................
1
st
DEFENDANT
MARIA ALETTA
NEL
.......................................................................................................
2
nd
DEFENDANT
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1] The Applicant in
this application seeks an order in the following terms:
“
1.
Dat die vonnis onder saaknommer 16497/2008 toegestaan op die 22 Junie
2007 teen die Tweede en Derde Respondent tersyde gestel
word;
2. Geen bevel ten
aansien van koste teen die Eerste Respondent, behalwe indien
geopponeer;
3. Bevel ten
aansien van koste teen die Tweede en Derde Respondente toegestan
word;
4. Verdere en/of
altematiewe regshulp.”
BACKGROUND
FACTS
[2] The Applicants’
case is that they and the second and the third Respondents concluded
a sale agreement in terms of which
a portion of their immovable
property, viz Wonderboomstraat 741 Wolmer, Pretoria Noord beter
bekend as Gedeelte 1 van Erf 198 Wolmer
(“the property”)
would be sold to the two Respondents. The first Applicant had been
declared medical unfit. An offer
to purchase (
£
”the
agreement”) prepared by Koale Properties was signed by the
parties. Clause 15 of the agreement had as a condition
the following:
“
1.
Aanvaarding van offer is onderheuwig aan dat Koper verantwoodelik is
vir onderverdeling”.
The second and the
third Respondents were to see to the subdivision of the immovable
property as according to the Applicants, a
portion thereof, after the
subdivision, would be sold to the two Respondents. The Applicants
allege that the transferring attorney
was duly informed by them that
they were illiterate and that the two Respondents had to attend to
the subdivision of the property.
The Applicants laboured under the
impression that the property had been subdivided when they signed the
necessary documents transferring
the property to the Respondents. In
the mean time the two Respondents had a bond registered over the
whole property as security
for the money that the first Respondent
had lent to them for payment of the purchase price. The transferring
attorneys, according
to the Applicants, transferred the whole of the
property and not a portion thereof despite their assurance that the
right thing
would be done. The two respondents defaulted with their
bond repayment. This resulted in the first Respondent, in terms of
Rule
31 (2) (a), taking judgement against the two Respondents. The
Applicants did not know this and consequently did not oppose the
granting of the judgement. They aver in their papers that they would
have opposed the application for default Judgement had they
known of
the launching of the application. They further contend that it was
never their intention that the property be sold without
the
subdivision. The above necessitated this application which is opposed
by the first Respondent which became a party in terms
of Rule 6 (5)
(d) (iii).
THE LAW
[3]
A person who cannot bring a case for setting aside a judgment under
rule 31 or rule 42 may nevertheless be entitled to have
the judgment
set aside at common law. (see
Hardroad
(Pty) Ltd u Oribi Motors (Pty) LTD 1977(2) SA 576 (W) at 579 and De
Wet and Others v Western Bank Ltd
1979 (2) SA 1031
at 1039).
Rule 42 (1) (a)
provides:
“
(1)
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:
(a)An
order or judgment
erroneously
sought or
erroneously
granted in the absence of any party
affected
thereby;
”
(my
emphasis)
The
Rule was introduced to cater for mistakes. The Rule is procedural in
nature and is meant to expeditiously correct an obviously
wrong
judgment or order (see
Kili
and Others v Msindwana in re: Msindwana v kili and Others
[2001] 1
All SA 339
(Tk) at 345.)
Courts
come to the assistance of an applicant, who through no personal fault
of his, is not afforded an opportunity to oppose the
order granted
once it is established that he expeditiously took steps to have the
position rectified. The Applicant, to establish
Locus
standi,
has
to show that he has a sufficiently direct and substantial interest in
the subject matter of the judgment or order sufficiently
direct and
substantial to entitle him to have intervened and to be able to
participate in the original application upon which the
judgment was
given or order granted. (See F
raind
v Nothmann
1991 (3) SA 837
(W).
The
existence at the time of the granting of the judgment, of a fact
which the judge was not aware of, which would have precluded
the
granting of the judgment and which would have induced the judge if
aware of it, not to grant the judgment seems to constitute
an error
for the purposes of the Rule 42 (see
Nyingwa
v Moolman No 1993 (2) SA
o
08
(TK GD) at 510).
In
deciding whether the judgment was erroneously granted courts are not
confined to the record of the proceedings. The rule also
applies to
instances where judgments are erroneously sought. This, of necessity,
requires facts to be placed before the court to
enable it to
determine if judgment was erroneously sought. (See
Stander
and Another v ABSA Bank
1997 (4) SA 873
(ECD) at 882 C - G, Mutebwa v
Mantebwa
2001 (2) SA 193
(TKHC) at 201 A - H and Smith and Others v
Van Heerden and Others
(2002) 4 All SA 461
(C) at 467 f -g).
Once
it is established that an order or judgment was erroneously granted
in the absence of any party affected thereby, the court,
without any
further enquiry should rescind the order on the application of such
party. (See
Tshabalala
and Another v Peer
1979 (4) SA 27
(T) at 30, De Wet v Western Bank
Ltd (supra) and Mutebwa v Mtebwa (supra)
[4] Rule 42 (1) (a)
requires that;
1. Judgment must
have been erroneously sougnt and granted;
2. in the absence of
the applicant;
3.
who is affected by the granting thereof which in turn means that the
party must have substantial interest in the granting thereof.
(See
Mutembwa v
Mutembwa (supra))
A judgment which is
erroneously granted includes:
1. a judgment
granted while the proceedings preceding the granting thereof have an
irregularity, or
2. a judgment
granted when the court granting it was not legally competent to grant
it, or
3. a judgment
granted when the judge was unaware at the time of such granting of
the judgment of a fact which would have precluded
the granting
thereof by such judge had he or she been aware of such facts which
would have induced him not to grant the judgment.
[5] According to
counsel for the Applicants the facts of the case clearly show that:
1.It was important
for the Applicants to oppose the granting of the judgment. Indeed,
they did not know that such an application
had been launched. They
could not attend and place their facts before the court.
2. Had the court
that granted the judgment been aware of the facts of the case,
judgment would not have been granted against the
second and the third
Respondents.
3. The error
referred to above could not have been apparent from the papers before
the court. That necessitated the placing of additional
relevant,
facts before the court
4. The Applicants
have, obviously, been affected by the granting of the judgment in
their absence.
[6] Once the court
is satisfied that judgment was erroneously granted in the absence of
the Applicants who have a substantial interest
in the matter the
rescission of the judgment should be granted. It is clearly common
cause that the judgment was granted in the
absence of the Applicants.
The submission in the above instances has merit.
[7] The Applicants
are still residing on the property in question and the refusal of the
application involves untold prejudice on
their part.
[8] Considerations
of fairness and justice seems to persuade the court to rescind the
judgment that was granted against the second
and third Respondents in
the circumstances of this matter.
[9] It was submitted
on behalf of the first Respondent that to succeed the Applicants have
to prove that:
1. a prior personal
right against the holder of a real right exists;
2. that the personal
right is being infringed by the subsequent acquirer of the real right
which real right was acquired after the
establishment of the personal
right;
3. The acquirer of
the real right has knowledge of the existence of a prior personal
right.
It is noteworthy
that the condition of sale reads:
“
(1)
aanvaarding van offer is onderhewig aan dat koper verantwandelik is
ver onderverdeling”
The first Respondent
must have read this condition. If it did, surely it would have wanted
to know what the subdivision was all
about. The first Respondent was
advancing a lot of money for the purchase of the property. It is
inconceivable that the first Respondent
would have simply provided
the money without wanting to know if the subdivision referred to in
clause 15 of the offer to purchase
did not affect it. Clearly clause
15 was not without significance. If the first Respondent had no
regard thereto then and in that
event the first Respondent was
negligent to say the least and only had itself to blame for such
attitude.
The
first Respondent then took the risk of advancing money without doing
what it should have done in the first instance. It is highly
improbable that the first Respondent would not have known why clause
15 formed part of the offer to purchase. This negates the
submission
proffered on behalf of the first Respondent, namely that the
Applicants had to prove that the first Respondent was aware
of the
alleged subdivision and that only a portion of the property was
offered for sale. The above demonstrates that the first
Respondent,
the second Respondent and the third Respondent could not have been
bona fide
when
they dealt with one another.
[10]
The facts that the Applicants have now placed before the court
demonstrate that the error could not have been apparent from
the
record. The court needed to know and be aware of the circumstances of
this matter. It is doubtful, if the court, with these
facts would
have granted the judgment against the second and the third
Respondents. It was submitted on behalf of the Applicants
that they,
indeed, have a
bona
fide
defence
against the first Respondent. The submission seems to have substance.
[11] The Applicants
applied for the condonation of the late filing of the rescission
application as well as the late filing of the
Applicant’s heads
of Argument. The explanation and the reasons proffered by the
Applicants, in my view, are understandable
and acceptable. Nothing
has been shown to persuade me not to grant such condonation which is
hereby granted.
[12] The Applicants,
in my view, have made out a proper case for the relief that they
seek. The application, therefore, ought to
succeed.
[13] The order I
make, in the result, is as follows:
1. That the judgment
under case number 16497/2007 granted on 22 June 2007 against the
second and the third Respondent be rescinded
and set aside.
2. That the first,
second and the third Respondents be ordered to pay the costs of the
application.
M. W. MSIMEKI
JUDGE
OF THE HIGH COURT
Heard on: 06
November 2009
For the Applicant:
Adv. W. J. Saaiman
Instructed by: Henn
Ingelyf
For the 1
st
Respondent: Adv. E. B. Clavier
Instructed by:
Weavind & Weavind