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[2010] ZAGPPHC 92
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James Gilbert SA (Pty) Ltd v Rugby World Distributors CC (56699/2008) [2010] ZAGPPHC 92 (24 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, HIGH COURT PRETORIA)
Not
Reportable
Case
No: 56699/2008
Data:
24/08/2010
In
the matter between:
JAMES
GILBERT SA (PTY) LTD
Applicant
And
RUGBY
WORLD DISTRIBUTORS CC Respondent
JUDGMENT
MAVUNDLA,
J.
[1]
This is an opposed application for rescission of default judgement
granted against the applicant by the Registrar of this Court
on 6
th
of February 2009 for payment in the amount of R186 846, 00 with
interest a tempore morae and cost to be taxed.
[2]
The plaintiff caused simple summons to be issued against the
defendant on 4 December 2009. On the 5
th
December 2009, according to the Deputy Sheriff's return of service,
was served
on
Mrs Pieterse, the receptionist, at Gordon and Gordon and Partners.
The applicant did not deliver a notice of intention to defend
the
action. On 6 February 2009 , the Registrar of this Court granted
judgment by default for the payment of in the amount of R186
846, 00
with interest a tempore morae and cost to be taxed.
[3]
The application for rescission is premised on the affidavit of one
Eric Ichikowitz who describe himself as a major businessman
And chief
executive officer of the applicant. He has further stated that the
facts contained in his affidavit are within his personal
knowledge.
He has however not stated that he has been dully authorised to bring
the application.
[4]
The first salvo by the plaintiff who is the respondent in the
application, is a point
in
limine.
The
essence of the point
in
limine
is
that the defendant is closed corporate. As such the defendant is a
juristic person and therefore the deponent to the affidavit
must show
that he is dully authorised.
[5]
In rebuffing this preliminary attack, the defendant contends that the
plaintiff has failed to attack the authority of the attorneys
representing it to act on behalf of the defendant, it should be
therefore accepted that it is not disputed. It is further contended
that the present attack is flawed because the point of authority
should be challenged in terms of Rule 7(1) of the Uniform Court
Rules. For thjis submission, reliance is made on the Full Bench
of
Kwa-Zulu High Court judgment in the matter of ANC Umvoti Council
Caucus and Others v Umvoti Municipality
2010 (3) SA 31
(KZP).
[6]
In the Umvoti matter (supra) it was held "that absent a specific
challenge by way of authority by way of rule 7(1) 'the
mere signature
of the notice of motion by an attorney and the fact that the
proceedings purport to be brought in the name of the
applicant' were
sufficient. Further the application papers were not the correct
context in which to determine whether an applicant
which was an
artificial person had authorisation the initiation of the application
proceedings. Rule 7(1) must be used.
[7]
The decision in the Mvoti case in respect of rule 7(1) having to be
employed when challenging authority of the deponent to the
affidavit
on behalf of the juristic person, accords with the views expressed by
the Supreme Court in the matter of Ganes and Another
v Telcom Namidia
Ltd
2004 (3) SA 615
(SCA) ([20004]
2 ALL SA 609)
which its dictum in
para [19] was followed.
[8]
Having regard to these authorities, in particular that of the Supreme
Court of Appeal, I am bound therefore to uphold the submissions
made
on behalf of the defendant in repulsing the first salvo of the
plaintiff, as I would do herein below. The defendant, as the
successful party on this preliminary point, is entitled to the costs
pertaining thereto.
[9]
The defendant says in its affidavit that obtained knowledge of the
judgment in this case on 16 April 2009 and prior thereto
had no
knowledge of the institution of the action and the judgment. Mrs
Pieterse upon whom the summons does not deny that the summons
was
served on her but simply says that she cannot remember anything about
this. The defendant says that the summons were never
brought to his
attention by the firm of accountants Gordon and Gordon and partners
where Pieterse is employed and where the summons
were served.
[10]
It needs pointed out that, although the affidavit of Ichikowitz was
deposed to on 6 May 2009. The confirmatory affidavit of
Pieterse was
commissioned sometime in May 2009 without a specific date reflected
thereon. However a further confirmatory affidavit
of Haether Lawlor,
a candidate attorney in the employ of the defendant's attorney of
record, was deposed to on 7 May 2009. The
essence of this last
mentioned confirmatory affidavit is to show that a fax dated 24 April
2009 attached to the papers as annexure
E was remitted to the
plaintiff making it known of the defendant's intention to launch an
application for rescission.
[11]
However the application for rescission was only lodged with the
Registrar of this Court on 18 May 2009, one day outside the
20 days
prescribed by rule 31(2)(b) of the Uniform Rules of this Court. There
is no explanation proffered for this remissness.
In the absence of an
explanation for this remissness, albeit one
day,
in my view, there is nothing before the Court upon which it can
exercise its discretion to condone the late filing of the
application.
[12]
The mere fact that the plaintiff had been made aware of the intended
application in April is of no great moment. The fact remains
that the
application was not brought within the prescribed period and there is
no condonotion sought.
[13]
The absence of an explanation why the application was not brought
timeously, coupled with the fact that the summons were served
on the
defendants' registered address as well as the preferred amnesia by
Pieterse, these are important in deciding whether there
is good cause
shown, why the court must come to the rescue of the defendant. In my
view, it is highly unlikely that Pieterse did
not bring to the
attention of the defendant the summons against it. I am therefore not
satisfied that the defendant has shown "good
cause". I am
consequently of the view that I need not interrogate the rest of the
merits of this application. If one of the
requirements for a
successful application for rescission is lacking, then the
application cannot succeed.
[14]
In the result I make the following order:
1.
That the Respondent's point
in
limine
is
dismissed with costs.
2.
That the Applicant's application for rescission is
dismissed with costs.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
APPLICANT'S
ATT : NOCHUMSOHN TEPER ATT.
PLAINTIFF'S
ADV : ADV M D SILVER.
DEFENDANTS'
ATT : VAN ZYL LE ROUX & HURTERS
DEFENDANTS'
ADV : ADV S G MARITZ
DATE
OF JUDGEMENT: 24 AUGUST 2010