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[2011] ZAGPPHC 2
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ABSA v Dircon Industrial Properties (Pty) Ltd and Others (24064/2009) [2011] ZAGPPHC 2 (7 January 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE
NUMBER: 24064/2009
DATE:07/01/2011
In
the matter between:
ABSA
..............................................................................................
Plaintiff/
Respondent
And
DIRCON
INDUSTRIAL PROPERTIES (PTY) LTD
................
FIRST
DEFENDANT
IZAK
DAVID SNYMAN N.O.
…..................................................
SECOND
DEFENDANT
CORNELIUS
FREDERICK SCHEIDER N.O.
.........................
THIRD
DEFENDANT
IZAK
DAVID SNYMAN
…............................................................
FOURT
DEFENDANT
CORNELIUS
FREDERICK SCHEIDER
…..............................
FIFTH
DEFENDANT
ADRIAN
MARTHA SCHEIDER
….............................................
SIXTH
DEFENDANT
CORNELIUS
FREDERICK SCHEIDER N.O.
…....................
5
th
Defendant / 1
st
Applicant
ADRIAN
MARTHA SCHEIDER N.O.
…....................................
6
th
Defendant / 2
nd
Applicant
JUDGMENT
MAVUNDI.A.
J
[1]
On the 26 August 2010, I dismissed with costs the application for
rescission of the judgment granted against the first and
second
applicants on 24 June 2009 and ordered that reasons for the order may
be requested within 10 days.
[2]
I subsequently on 1 October 2010 handed down written reasons for the
aforesaid order. Paragraph [30] of the written reasons
read as
follows:
"[30]
In the premises, I therefore hold the view and conclude as such that
the applicants have not satisfied this Court that:
(a)
their
remissness in regard to both the default and bringing the condonation
is reasonable and acceptable and should be condoned;
(b)
the
application for rescission is
bona
fide
and
not made with the intention of merely delaying plaintiff's claim; and
(c)
Have
a
bona
fide
defence
to the plaintiff's claim."
[3]
It has since come to my attention that the registrar omitted typing
the introductory part of paragraph [30] but typed as "(a),
(b)
and (c)" referred herein above as an order, which is incorrect.
However, the parties are quite aware of the correct order
that was
granted in this matter.
[4]
The applicants now seek leave to appeal against the order dismissing
the application for rescission with costs. For purposes
of this
application I deem it not necessary to restate the reasons for the
order I granted.
[5]
The grounds for the application for leave to appeal as set out in the
notice for application for leave to appeal, tersely put,
are that
this Court erred in finding that:
5.1
The applicants failed in bringing the application for rescission
within prescribed period of time and should have applied for
condonation for their failure; 5.2 Alternatively the applicants
failed to furnish a sufficient enough explanation for the aforesaid
failure in order to enable the Court to exercise its discretion in
favour of condoning their aforesaid failure;
5.3
The provisions of the
National Credit Act 34 of 2005
are not
applicable to contractual relationship between the applicants and the
respondent, specifically in so far as the applicants
bound themselves
to the respondent as co-principal debtors. And that they are
therefore not entitled to the protection afforded
by the Act and that
they have no prospect of success were the matter to go on trial. 5.4.
in not taking into further consideration
that (i) the respondent had
failed to comply with the peremptory provisions of
s129(1)
of NCA,
and (ii) applicants made out a proper case for condonation of their
failure for debt review in terms of
s86
of the Act.
[6]
It is further submitted on behalf of the applicants that they had
given instructions to the fourth defendant, in his capacity
as an
attorney to file an appearance to defend, which he failed to do. The
applicants only came to be aware of the aforesaid failure
on the part
of the fourth defendants on 30 September 2009 when it was brought to
their attention by their current attorney, Muller
of EAL Muller,
after receiving all relevant documents from their correspondent
attorney in Pretoria. It is submitted that the latter
attorney
brought the application for rescission within 20 days and therefore
it was not necessary to apply for condonation.
[7]
It is further submitted that in the event it was necessary to bring
an application for condonation, it is submitted that they
acted in a
bona
fide
mistake
that the fourth defendant had filed an appearance to defend, in this
regard I have been referred to
Koekemoer
v Viljoen
1921
TPD 129
;
Doyle
v McDonnel
(1901)
11 CTR 310;
Jabavu
& Co Ltd v Corfieid
1906
EDC 128.
It is further submitted that the applicants have shown
absence of wilfulness or gross negligence on their part which is not
an
absolute prerequisite for the granting of rescission of judgment,
vide Zealand v Milborough
1991 (4) SA 836
(SE) at 838A-C; De
Witts
Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd
1994
(4) SA 704
(E) at &)(A-E).
[8]
It further submitted that the applicants have furnished a reasonable
explanation for their delay in that their attorney acted
promptly
after receiving documents from their correspondent attorneys in
Pretoria and the delay did not result in flagrant breach
of the Rules
or the objects of the Rules; vide
Mynhardt
v Mynhardt
1986
91) SA 456
(T), and was not reckless, vide
Smith
NO v Brummer NO and Another
1954
(3)
SA
352 (O). It contended that this Court should have exercised its wider
discretion in terms of
s 27(3)
of the Rules.
[9]
It also submitted on behalf of the applicants that they are
co-principal debtors and sureties and have shown that they enjoy
the
protection
NCA
which
is applicable in casu. It is finally submitted that another court
will decide otherwise as this Court did.
[10]
On behalf of the respondent it has been submitted,
inter
alia,
that
there are no reasonable prospects of success on appeal because the
liability of the applicants arise from a surety they signed
and
therefore the
NCA
is
not applicable in casu; in this regard reliance is made on
Firstrand
Bank Ltd v Carl Beck Estates (Pty) Ltd
1
.
[11]
In an application for leave to appeal, the applicant must show,
inter
alia,
that
there is a reasonable prospect of success on the appeal on the
merits.
In
casu
the
application for leave to appeal
is
in respect of the dismissal of the application for rescission. It is
trite that in rescission applications for rescission brought
under
Rule 31(2)(b)
the applicant must give a reasonable explanation of his
default, and show that his application is
bona
fide
and
not merely calculated to delay the respondent's action and that he
has a
bona
fide
defence,
vide
Sanderson Techntool (Pty) Ltd v Intermenua (Pty) Ltd
2
.
All
the requisites must be present, otherwise the court need not come to
the rescue of the applicants, vide
Promedia
Drukkers &Uitgewers (EDMS) Bpk v Kaimowitz and Others
3
et Harris v ABSA Bank Ltd t/a Volkskas
4
.
[12]
In
casu
the
liability
of the applicants arises from the very fact that they bound
themselves as surety and co-principal debtors. The fact that
the
applicants bound themselves as co-principals is of no great moment
because they did not receive any money, but they are guarantors.
The
persistence of the applicants that the NCA is applicable
in
casu
is,
in my view, ill founded,
especially
in the light of the well reasoned decision in the matter of
Firstrand
Bank Ltd v Carl Beck Estates (Pty) Ltd
5
There
is no reasonable prospect that another Court will conclude otherwise.
[13]
In my view, the grant of rescission is a matter of the discretion of
the court
6
,
which must be exercised judicially upon consideration of all relevant
factors,
vide
Rose v Alpha Secretaries Ltd
7
.
The
court of appeal will not lightly interfere with the exercise of
discretion of the court
aquo.
In
the exercise of such discretion the court takes all the factors into
consideration, not individually, as I did in the application.
[14]
The applicants contend that they were not remiss as they had given
instructions to the fourth defendant who was their attorney
to defend
the matter. It would seem that they ascribe remissness to the
negligence of their then attorney, the fourth
defendant.
The negligence of an attorney, is not excuse,
vide
Sallojee and Another v Minister of Community Development
8
.
[15]
In the matter of
immeiman
v Loubser en Ander
9
the
Appellate Court held that the fact that the non compliance with the
Rules was not attributable to the applicants but to their
attorney is
an important aspect but not decisive in the consideration of whether
the Court should exercise its discretion in condonation.
A weak
explanation seen against strong prospects of success on the merits
may be condoned
10
.
In my view, the converse to this principle equally applies. However,
I have already expressed myself that the NCA applies and that
there
is no prospect of success on this point. I find it not necessary to
decide the rest of the other aspects raised by the applicants.
I hold
the view that if they cannot succeed on showing that they have a
bona
fide
defence
on the merits, as I have already indicated, their appeal will not
succeed. I am therefore of the
view
that there is no prospect of success on the appeal and therefore the
application for leave to appeal must fail.
[16]
In the result I make the following order:
1
That the application for leave to appeal is dismissed with costs.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DELIVERED
:
7 JANUARY 2011
APPLICANT'S
ATT
:
EAL MULLER ATTORNEYS
APPLICANT'S
ADV
:
MR J.E. KRUGER
RESPONDENTS'
ATT : VAN ZYL LE ROUX & HURTER
INCORPORATED
RESPONDETS' ADV : MR. A.P.J. ELS
1
2009
(3) SA 384.
2
1980
(4) SA 573
(W) at 575H-576A.
3
1996
(4) SA 411
at 417J.
4
2002
[3] ALL SA 215 at 21
7.
5
2009
(3) SA 384
at 39011-391Epara [2!]-[23j.
6
Vide
Cairn's Executors
v
Gaanrn
1912 AD 181
a 186
7
1947
(4) SA 511
(A) at 518-19.
8
1947
(4) SA 511
(A) at 518-19.
9
1974
(3) AD 816
(AD) at pp 823-824.
10
Vide
United Plant Hire (Pty) Ltd v Hills
1976 (1) SA 717
(A) at 720F-H.