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[2010] ZAGPPHC 610
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Hardware and Others v Sizane Agencies (Pty) Ltd and Another (61478/09) [2010] ZAGPPHC 610 (20 May 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH
AFRICA
)
CASE NO: 61478/09
DATE: 20 MAY 2010
In the matter
between:
K
K
HARDWARE
.......................................................................................................................
First
Applicant
H
C
NDOU
...............................................................................................................................
Second
Applicant
J
B
SPARES
...............................................................................................................................
Third
Applicant
and
SIZANE
AGENCIES (PTY)
LTD
..........................................................................................
First
Respondent
CITY
OF
TSHWANE
.........................................................................................................
Second
Respondent
JUDGMENT
Ismail AJ :
[1] This is an
application wherein the first and second applicants seek an order in
the following term:
(1) Rescission and
setting aside of a judgment granted by default and in error by this
court on the 23 March 2009, in terms whereof
the first applicant is
ordered to be evicted from his legal erf [...]. Block [...] S[...]
[...] Extension 4 township, Pretoria.
(2) The applicants
seek condonation for the late filing of their application.
(3) Costs of the
application
(4) that the
Responsdents be ordered to file a plea within 15 days of receipt of
the notice of motion.
[2] The applicants
(first and second applicants) brings this application in terms of
Rule 31 (2) (b) and Rule 42 (1) (a) and (b)
of the Uniform Rules.
[3] The first
applicant in the founding papers is described as a juristic person
duly registered in terms of the laws of South Africa.
During argument
before me it was submitted that the first aplicant was a sole
proprietor owned by the second applicant.
Background to
the application
[4] The first
applicant submits that the order of the 23 March 2009 was erronously
obtained.
The order reads :
“
1
THAT the first respondent or any other person or legal entity,
occupying the property on behalf of the first resspondent is evicted
from Erf [...]. S[...]-[...] Ext 4 Township. ”
[5] On behalf of the
applicant it was submited that the order is erronous in that no
person or legal entity who occupied the property
should legally have
been evicted. For that reason the court was incompetent to make such
an order against a person who legally
occupied the land.
[6] The applicant
also submitted that papers were served on Mrs Ngwenya on the 8 July
2008. Mrs Ngwenya is the wife of the owner
of the third applicant.
Second respondent was not served with the notice of motion on the 8
July 2008.
[7] Mr Roux acting
on behalf of the respondents raised several points in limine The
first being that the order of the 23 March 2009
was only granted
against the first applicant and as such the judgment can only be
rescinded against the first applicant. Secondly
it is unclear why the
respondents should file their plea within fifteen days. Thirdly the
applicants failed to disclose against
which respondent they seek a
costs order.
[8] The first
applicant avered that it became aware of the court order of 23 March
2009 on the 2 September 2009, and that it received
no notice of the
eviction application or the court order relating thereto.
The respondent on
the other hand submitted that this statement was incorrect and that
it is a deliberately prevarication, since
the first applicant was
served with the eviction application on the 8 July 2008. [see
annexure LAH 5, page 136 of the indexed pages].
[9] The respondent
submitted that a notice of intention to oppose the application was
served and filed by the first and third applicants
attorneys Baartman
du Plessis on the 9 July 2008. [See annexure LAH 6 page 137 of the
indexed pages]
[10] It appears that
the first applicant had to depose to a confirmatory affidavit to that
of the third applicant, which the first
applicant failed to do
notwithstanding numerous request by its attorney, Mr Du Plessis, to
do so.
[11] At the hearing
of the application on the 23 March 2009, Mr Du Plessis instructed his
counsel to withdraw on behalf of the first
applicant, due to the
confirmatory affidavit not having been signed.
[12] Mr Molobedi
acting for the applicant submitted that the court should set aside
the application and should rescind the judgment.
Mr Roux acting for
the responsent submitted that the applicant had not made out a case
for condonation in that the application
was brought several months
after the applicant became aware of the judgment against it and not
within the twenty days stipulated
by rule 32.
Condonation
[13] Mr Molobedi
submitted that in paragraphs 20 to 26 of the founding papers he dealt
with the issue of condonation. It would be
prudent to repeat what the
applicant stated in this regard.
“
20
On the 2
nd
September
2009 when I opened my letters I found court order dated 23
rc
March
2009. I did not know or (sic) aware of the pending eviction as I am a
legal occupant of these premises.
[14] The respondents
in their answering affidavit at paragraph 18.1 stated:
“
On
the 30 April 2009. the first respondent's attorneys of record hand
delivered a letter to the first applicant (this was received
by him
as is evident from the acknowledgement of receipt at the top
thereof), informing the first applicant of of the court order
and the
contents thereof.
18.2
A copy of the letter is annexed hereto . marked
'
LAH 8' ”
[15] The letter
annexed as LAH 8 appears at page 143 of the papers and it reveals
that the letter is dated 30 April 2009 and that
the letter informs
the first applicant of the court order.
A copy of the order
was attached thereto. The letter is acknowledged by the first
applicant and also has the stamp of the first
applicant on it.
[16] The letter
referred to clearly contradicts the second applicant’s version
that he only became aware of the judgment on
the 20 September 2009.
The first and second applicants were already appraised of the
judgment on the 30 April 2009. more than 4
months prior to the date
the second applicant alleges.
The second applicant
in this regard had not been candid with the court.
[17]
In
Tshivhase
& another v Tshivhase & another
[1992] ZASCA 185
;
1992
(4) SA 852
(A) at 859 E-F Nestadt JA stated:
"
This court has
often said that in cases of flagrant breaches of the Rules,
especially where there is no acceptable explanation therefor,
the
indulgence of condonation may be refused whatever the merits of the
appeal are this applies even where the blame lies solely
with the
attorney (see for example P E Bosman Transport Works Committee and
Others
v
Piet Bosman
Transport (Pty) Ltd
1980
(4) SA 794
at 799D-H)
[18] The first and
second applicants did not tender any explanation nor have they denied
the allegation made by the respondents
regarding the letter of the
30
tr
April 2009 informing the first applicant of the
judgment. The allegations which the respondents made regarding the
first applicant’s
attorney withdrawing at the hearing of the
application alluded to at paragraph [9] to [11] hereof was also not
disputed by the
second applicant.
[19]
Rule 27(3) stipulates that “
The
court may on good cause shown condone any non-compliance with these
rules”
Patel
AJ in
Nedcor Bank
Ltd v Visser NO
2002
(4) SA 588
(T) at 591 stated:
“
Rule
27(3) requires good cause' to be shown by the plaintiff.
This
gives the Court wide discretion. C
Du
Plooy v Anwes Motors Bpk
1983
(4) SA 212
(0) at 216H-217A). The requirements are
:
first
that the plaintiff should at least tender an explanation for its
default to enable the Court to understand how it occurred.
(Silber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 353A. Secondly, it is for the plaintiff to satisfy
the Court that its explanation is
bona
fide
and
not patently unfounded" See aiso
Standard
General Insurance Co Ltd v Eversafe (Pty) Ltd and Others
2000
(3) SA 87
at 93 at para [12] where Vorster AJ referred to
Silber
v Ozin Wholesalers (Pty) Ltd
1954
(2) SA 345
at 353A Schreiner JA stated:
“
It
is enough for present purposes to say that the defendant must at
least furnish an explanation of his default sufficiently full
to
enable the Court to understand how it really came about. and to
assess his conduct and motives”
[20]
in
Malene v Santam
Insurance Co Ltd
1962
(4) SA at 532 C-F mentioned various factors usually relevant to the
granting of condonation. Holmes JA stated:
“
Ordinarily
these facts are interrelated: they are not individually decisive, for
that would be a piecemeal approach incompatible
with a true
discretion save of course if there are no prospects of success there
would be no point in granting condonation. Any
attempt to formulate a
rule of thumb would only serve to harden the arteries of what should
be a flexible discretion. What is needed
is an objective conspectus
of all the facts. Thus a slight delay and a good explanation may help
to compensate for the prospect
of success which are not strong. Or
the importance of the issue and strong prospects of success may tend
to compensate for a long
delay. And the respondent’s interest
must not be overlooked’’
[21]
The second applicant’s explanation relating to when he became
aware of the judgment against him is patently false. He
failed to
give any explanation which depicts ‘good cause' and his
explanation is neither not
bona
fide.
I
am of the considered view that prospect of success on the merits are
minimal at the very best.
[22] For the reasons
set out hereinbefore I am of the view that the application should be
dismissed with costs.
Ismail AJ
For the
Applicants:
Adv
Molobedi instructed by Ntimane
Attorneys c/o
Mkhonto Attorneys,Pretoria.
For
the Respondent:
Adv
J Roux instructed by Delport van den
Berg attorneys ,
Pretoria
Date of Hearing: 29
April 2010
Judgment delivered
on: 20 May 2010.