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[2011] ZAGPPHC 48
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Bushveld Crushers (Pty) Ltd v WK Pipelines (Pty) Ltd (35725/2008) [2011] ZAGPPHC 48 (1 April 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No.: 35725/2008
DATE:
01/04/2011
In
the matter between:
BUSHVELD
CRUSHERS (PTY)
LTD
............................................................................
Applicant
and
WK
PIPELINES (PTY) LTD (known
as
WK CONSTRUCTION (PTY)
LTD)
..........................................................................
Respondent
JUDGMENT
MNGQIBISA-THUSI
J
[1]
This is an application for an order rescinding the order granted by
default on 26 February 2010. In terms of the order the applicant
was
ordered to pay the respondent:
1.1
Rl 507 29954 in respect of the claim plus interest;
1.2
R2 039 602.50 in respect of claim 2 and interest thereon;
1.3
Rl 540 000.00 in respect of claim 3 and interest thereon.
[2]
On the day of the hearing of this application, counsel for the
applicant addressed me by indicating that the applicant was not
ready
to proceed and asked for a postponement. He indicated that the
respondent's attorneys were aware of the fact that the applicant
would be seeking a postponement. I, however, declined to entertain
the application without a substantive application for a postponement.
It was then agreed between the parties that the applicant would
provide counsel for the respondent with its affidavit for
postponement
and that the respondent would be given an opportunity of
responding to the applicant's affidavit. The matter stood down for a
day
or two for the parties to exchange pleadings.
[3]
The basis on which the applicant is seeking a postponement is set out
in an affidavit deposed to by the applicant's attorney,
Mr. Sebola.
In it is alleged that after applicant's counsel received the
respondent's answering affidavit on 20 April 2010 in the
application
for rescission of judgment, applicant's counsel requested that the
court record in the main action be obtained. On
13 May 2010 the
respondent's attorneys served him with a notice of set-down
indicating the date of hearing of the rescission application
as 16
August 2010. Mr Sebola alleges that he had sought agreement from the
respondent's attorneys that the matter should be removed
from the
roll as applicant's counsel was still awaiting a copy of the court
record in the main action. Further it is alleged that
the applicant's
counsel was not available on 16 August 2010. On 28 May 2010
respondent's attorneys indicated in a letter to Mr
Sebola that they
were not amenable to a postponement. Subsequently and on 5 August
2010 Mr Sebola wrote a letter to the respondent's
attorneys
indicating that he had received a copy of the court record and that
the former directors of the applicant had indicated
their willingness
to intervene in the application for rescission and again requested
that the matter be removed from the roll.
The respondent's attorneys
did not respond to the latest request.
[4]
Furthermore Mr Sebola alleges that the postponement is necessary in
that the applicant wishes to file a supplementary affidavit
clarifying issues raised in the respondent's answering affidavit
served on the applicant on 20 April 2010. Further that the applicant
does have a defence to the respondent's claim and that the current
directors, who took over the company in November 2009, will
not able
to testify but the former will.
[5]
In dealing with the applicant's default Mr Sebola alleges that even
though he was the correspondent attorney in the main action,
he had
withdrawn after the applicant's attorneys of record had withdrawn a
few days before the hearing.
[6]
The respondent made it clear right from the start that it was going
to oppose the application for postponement and would ask
the court to
proceed with the rescission application. The reasons for opposing the
application for a postponement are set out in
the respondent's
opposing affidavit to the application for a postponement. It is the
respondent's contention that despite the fact
that the applicant was
aware from May 2010 that the respondent would resist any application
for a postponement, the applicant had
not applied for an extension of
the period for the filing of a replying affidavit nor had the
applicant applied for condonation.
Further, that even though
applicant's counsel on receipt of the respondent's answering
affidavit on 20 April 2010, the applicant
requested the court record
only on 26 May 2010 and paid the deposit for the record on 5 July
2010. Further that although the postponement
was purportedly needed
in order to obtain the court record in the main action, which record
was received by the applicant's counsel
on 30 July 2010, to date no
replying affidavit had been filed. Further that it appears that the
applicant do not seem to intend
using the contents of the record as
they are now claiming that the former directors of the applicant are
now prepared to testify
in the main action should the order be
rescinded.
[7]
As regards the rescission application it was submitted on behalf of
the respondent that the application for rescission should
not be
dismissed in that the applicant have not explained why they were in
wilful default since the order was granted with applicant
counsel and
attorney who had withdrawn at the hearing being present in court.
Further that the applicant have not provided a copy
of the court
record to substantiate their version.
[8]
A postponement is not a given. If a party seeks the court's
indulgence it has to motivate why the court should grant it a
postponement.
The applicant had come to court fully knowing that it
was going to seek a postponement without preparing a substantive
application
for a postponement. On the basis of the reasons given for
seeking a postponement I am not convinced that a postponement should
be granted.
[9]
As regards the application for rescission, even if a party has not
proven that it was not in wilful default, that does not preclude
the
court from granting a rescinding an order granted in the absence of
the party seeking rescission provided it has provided sufficient
cause showing that it has a defence to the respondent's claim in the
main application. Since the applicant has not provided the
court,
from the papers filed in this application it is not clear whether any
evidence was led in the main action particularly as
one of the
respondent's claim in the main action was a claim for damages (claim
3). The applicant is given the benefit of doubt
that the default
judgement was granted only on the basis that there was no
representation for the applicant and for this reason
only it is in
the interest of justice and in fairness to both parties that the
default judgment be rescinded and the issues be
ventilated in
particular the claim for damages. It is only fair that the respondent
prove its quantum of damages in a trial.
[10]
However in order to show the court's displeasure in the way the
applicant has conducted itself in these proceedings a punitive
cost
order is appropriate with regard to the application for a
postponement.
[11]
In the premises the following order is made:
1.
The application for a postponement is dismissed with costs as
between attorney and client.
2.
The order granted on 26 February 2010 is hereby rescinded.
3.
Costs to be cost in the cause.
NP
MNGQIBISA-THUSI
Judge
of the North Gauteng High Court