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[2011] ZAGPPHC 110
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Van Der Walt NO and Others v ABSA Bank Limited In re: ABSA Bank Limited v Van Der Walt NO and Others (6012/2007) [2011] ZAGPPHC 110 (5 May 2011)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
CASE NUMBER: 6012/2007
DATE:05/05/2011
In
the matter between:
ANNA
MARYNA VAN DER WALT
N.O.
...........................................................
1
st
APPLICANT
GERTT
JACOBUS DU PLESSIS VAN DER WALT N.O.
….............................
2
nd
APPLICANT
ANNA MARYNA VAN DER
WALT
...................................................................
3
rd
APPLICANT
And
ABSA
BANK
LIMITED
.......................................................................................
RESPONDENT
In re:
ABSA BANK
LIMITED
...............................................................................................
PLAINTIFF
AND
RESPONDENT
ANNA
MARYNA VAN DER WALT
N.O
..........................................................
1
st
DEFENDANT
GERT JACOBUS DU PLESSIS VAN DER
WALT N.O.
.................................
2
nd
DEFENDANT
ANNA
MARYNA VAN DER
WALT
.................................................................
3
rd
DEFENDANT
JUDGMENT
MAVUNDLA.
J.
[1]
Default judgment was granted against the trustees of Gert Van Der
Walt Familietrust No IT68/1998 and also against the Third
Defendant
in her personal capacity on 27 October 2008. The applicants are now
bringing an application to have the default judgment
rescinded. I
shall henceforth refer to the parties as they are referred to in the
main action
[2]
It is common cause that: The plaintiff's claim is in respect of the
balance of moneys lent and advanced to the Gert Van Der
Walt
Familietrust No IT68/1998 on 28 September 2004, secured by a
registered bond over certain immovable property, in favour of
the
plaintiff. The first and second defendants are sued in their
representative capacity as trustees. The third defendant's liability
arises from the very fact that she signed in her personal capacity a
surety. The relevant bond was limited to an amount of R175
000. 00.
The third defendant renounced her rights to the advantages of cession
and cause of action. The third defendant and the
second defendant are
married in community of property. The second defendant gave his
consent to the third defendant entering into
the surety agreement
with the plaintiff.
[3] The summons were served on 21
February 2007 at the address 1200 Ruimsigsingel, Pretoriuspark,
Woodhill. In respect of the third
defendant the summons was served at
the said address on the second defendant. In respect of the second
defendant the summons was
served personally on the second defendant
on the aforesaid date and place and time. In respect of the first
defendant the summons
was served on the second defendant. The
aforesaid address is the chosen domicilium citandi et executandi
address of the respective
parties
1
.
[4] In casu the defendants duly filed
their plea. The pleadings were closed and the matter was set down for
trial on 27 and 28 October
2008. It needs mention that there had been
an attempt to dispose the claim through summary judgment application,
but it came to
naught. I need not dwell therewith for purposes of
this application. The defendants did not attend court on the
scheduled trial
date and judgment was granted against the defendants
as prayed for.
[5] It is common cause that the
application for rescission was filed on the 14 November 2008. The
plaintiff filed its notice of
intention to oppose on 18 November
2008, well within the 25 November 2008 which was the date stipulated
by the defendants, in terms
of rule 6(5)(b). The plaintiff had to
file its opposing affidavit within 15 days from the 25 November 2008.
I take note of the
fact that it is a norm that attorneys' offices are
generally closed during the period 15 December to the first week of
the following
year. Rule 19 (1) provides that the period between 16
December and 15 January shall not be counted for computing the period
of
filing a notice of intention to defend. Invariably, practitioners
who litigate in the High Court are influenced by the period mentioned
in rule 19(1) in computing the period of filing of a pleading. This
rule relates to the filing of a notice of intention to oppose.
It is
doubtful whether this rule can be interpreted to include any other
pleading either than the notice of intention to defend
or oppose. On
a strict interpretation of the rules, it means that the plaintiff
filed its answering affidavit out of time. It was
submitted on behalf
of the plaintiff that the plaintiff was not out of time, as it filed
on the last day, if one excludes the period
mentioned in rule 19(1).
Because of the practical reality I have referred to herein above, I
am prepared in the exercise of my
discretion to condone the filing of
the plaintiff out of time notwithstanding the fact that there is no
formal application for
condonation. The reason for this is because it
cannot be said that the delay was inordinately long. The delay was
not unreasonable
to warrant a formal application for condonation.
[6] It cannot, however be said that
the replying affidavit of the defendants was filed within reasonable
time. It was only filed
on 2 September 2009, seven months later. I am
of the view, that the delay is unreasonable and consequentially I am
disinclined
to exercise my discretion in favour of the defendants.
Consequentially, I will disregard the defendant's replying affidavit
and
dispose of the applications for rescission on the strength of the
founding affidavit of the applicants and the plaintiff's answering
affidavit.
[7]
An application for rescission of a judgment can be brought either in
terms of (a) Rule 31(2)(b); (b) Rule 42(1); or common law.
Under rule
31 (2)(b) the applicant must
2
:
(a)
give reasonable explanation of his default. If it appears that his
default was wilful or that it was due to gross negligence
the Court
should not come to his assistance.
(b)
show that his application is bona fide and not made with the
intention of merely delaying plaintiff's claim.
(c)
show that he has a bona fide defence to the plaintiff's claim. It
suffices if he can make a prima facie defence by setting out
facts,
if established during the trial, would entitle him to his relief he
seeks.
3
[8] Rule 42 (1)(a) deals with
judgments tat were erroneously sought or erroneously granted in the
absence of the other party. I
do not understand the defendants' case
to be premised on this rule. I shall therefore not say much in that
regard.
[9] Whether the application is brought
in terms of rule 31(2)(b) or under common law, the applicant must
satisfy the court that
he has a "good cause" or sufficient
cause" why he was in default. At common law the Court has a
discretion to grant
rescission of judgment where sufficient or good
cause has been shown It is not enough if one of the prerequisites is
not present
4
.
[10]
The plaintiff sought the following order:
10.1 Payment of an amount of R2 213
794. 36 (two million, two hundred and thirteen thousand seven hundred
and ninety four rand and
thirty six cent);
10.2 Interest at the arte of 12.50
percent per annum (calculated monthly and capitalized) from 10
January 2007 to date of payment;
10.3
An order in terms of which the immovable property Erf 412,
Pretoriuspark Extension 6 Township, Registration Division J.R.,
Gauteng Provinceln Extent of 1044 ( One thousand and forty-four)
Square Metres held in terms of Title Deed Nr T91774/98 specially
executable;
10.4
Costs of suite;
10.5 Other or
alternative relief;
10.6
The plaintiff furthers seeks that the third defendant's liability be
limited to an amount of R350 000. 00 (three hundred and
fifty
thousand rand).
[11 ] The founding affidavit on behalf
of the defendants was deposed to by the second defendant. The second
defendant avers that
since 1996 he suffers from heart ailment which
worsened since August 2008. He was under the medical care of Dr
Corrie van Wyk and
had to undergo a bypass heart operation on 4
November 1997.
[12] It needs mention that the
defendants had filed their plea. The matter was set down for trial.
According to the second defendant,
the matter was set down for trial
on 27 October 2008. As the trial date approached, his health worsened
and he instructed his attorneys
of record to seek a postponement of
the matter on 27 October 2008. The approaching trial date resulted in
serious stress on his
part which exacerbated negatively his ailment.
His health condition was such that he could not attend trial. His
attorneys appraised
the plaintiff's attorneys of his condition during
September 2008 at least six weeks before trial date. The plaintiff's
attorneys
were however sceptic of his condition and as a result he
had to bring a substantive application for a postponement, shortly
before
the trial his attorneys of record withdrew from the matter and
as a result there was no counsel instructed to bring the application
for a postponement.
[13] The second defendant further
avers that he was subsequently informed by his attorney that default
judgment was granted against
him on 27 October 2008 and there was no
application for a postponement application at all. He further avers
that the court did
not have an opportunity to consider the merits of
his application for a postponement. He has been informed that the
plaintiff filed
his opposing affidavit for the postponement in which
the latter took issue with the fact that the second defendant did not
deal
with the merits of the case. The second defendant further
submits that on advice it was not necessary to deal with the merits
of
the case at that stage. The second defendant further avers that he
would not abuse his health condition to seek a postponement
unnecessarily.
[14] It would seem that the
plaintiff's scepticism over the second defendant's health condition,
led to the plaintiff arranging
for by Dr. Landeur to present himself
at court in anticipation of the application for a postponement.
However Dr. Landeur filed
an affidavit which was part of the opposing
affidavit of the plaintiff ,in anticipation to oppose the envisaged
application for
a postponement. The second defendant further avers
that it would seem tat there was a misunderstanding between himself
and his
Dr. Landeur. He further stated that the misunderstanding
between himself and Dr. Landeur could not be resolved through
affidavits
and in all probabilities this would have required that the
matter be referred to oral evidence. He further stated that it would
seem that the plaintiff exerted pressure on Dr. Landeur who as a
result did not want to be involved in the private affairs of his
patient. He further contends that the court was deprived of an
opportunity to decide whether he had good reason for seeking a
postponement. He contends that he had a lawful reason for seeking a
postponement.
[15] The second defendant further
refers to the fact that the plaintiff had sought a summary judgment.
In that regard the second
defendant had filed an affidavit opposing
the grant of the summary judgment. He stated further that in his then
opposing affidavit
he had disclosed a defence. He further direct the
court's attention to, as he contends, the fact that the authority of
the deponent
of the affidavit in support of the application for the
summary judgment does no appear from the affidavit. He further
contended
that neither the resolution of the Board of directors of
the decision of the 28 November 1993 nor the list of balances are
identified.
Neither does authority appear from the affidavit. He
further contended that there was a further irregularity in the sense
that
whereas the plaintiff relies on a contract, it is not alleged
who represented the parties during the conclusion of the contract,
neither did the annexure to the particulars of claim identify the
representatives of the plaintiff. He further contended that the
application for summary judgment was incomplete. The plaintiff's
standard bond terms which were filed at the Deeds Office in terms
of
reference number BC1/1993 form part of the application were not
attached.
[16] The second defendant further
contends that their defence is fully set out in the plea already
filed on their behalf and beseech
this court to have regard thereto.
The second defendant further contended that there are no averments
made out why the third respondent
is being held liable in her
personal capacity. The second defendant further contended that there
is a bona fide defence disclosed
by the defendants. He further
averred in his affidavit that he has been advised by his present
attorney of record that their plea
would have to be amended. He
further avers that he did not receive proper advise notice of the
withdrawal of his attorneys' of
record so as to enable him to make
alternative arrangements.
[17] The second defendant has also
attached a copy of his affidavit that was filed in opposing the
summary judgment application,
however, I do not intend to chronicle
the contents thereof for purposes of this present application. I have
read that affidavit
as well.
[18] The third defendant filed an
affidavit verifying what was deposed to by the second defendant, in
so far as where reference
is made to her. She avers in her affidavit
that she has been cited as the first defendant in her capacity as the
trustee of the
Gert van der Walt Family Trust number IT 000068/1991
and also in her personal capacity. She averred that there are no
basis set
out in the declaration for being cited as such. She further
confirms that the second defendant was already since 1996 plagued by
hart ailment. She further stated that in so far as the application
for rescission of the judgment in her personal capacity is concerned,
she left every thing in the hands of the second defendant. She had no
knowledge at all that the application for postponement was
not heard
at court and she learnt with great shock of the judgment against her
having been granted.
[19] The plaintiff has filed its
answering affidavit deposed to by one Mr. Johaanes Hendrik De Bruy.
The latter is the manager of
the legal division of the plaintiff in
Johannesburg Gauteng. He has also stated that he is dully authorised
to depose to the affidavit
and that also because of his position as
the manager in the legal department is also authorised through his
functionary duties
to represent the plaintiff.
[20] Where a party seeks to challenge
the authority of the person deposing to an affidavit, in the face of
an allegation that he
is duly so authorised, that attack is misplaced
because, it is the institution of the proceedings and the prosecution
thereof which
must be authorized. Vide the matter of Ganes and
Another v Telecom Namibia Ltd
5
where the Supreme Court of Appeal stated that it is irrelevant
whether the deponent to an affidavit has been authorised to depose
thereto. It is the institution of the proceedings and the prosecution
thereof which must be authorized. A party who wants to challenge
the
authority of a person allegedly acting on behalf of another in
instituting the legal proceedings, must direct his salvo through
Rule
7
6
.
[21] It needs mention that the
defendants have not filed their replying affidavits. The defendants
are the applicants in this case,
as such they bear the onus to
satisfy the court that they seek should be granted. In opposed motion
proceedings, the court will
grant the relief sought "if those
facts averred in the applicants' affidavit which have been admitted
by the respondent, together
with the facts alleged by the respondent,
justify such an order; vide Plascon-Evans Paints v Van Riebeeck
Piants
7
.
[22] The reason for the second
defendant's failure to attend court on the scheduled trial date of 27
and 28 October 2008 was that
he was on account of ill health
indisposed and had to consult with Dr. Landauer on the aforesaid
date
8
.
The plaintiff has countered this allegation by attaching an affidavit
of denying Dr. Landauer, who was the second defendant's
medical
doctor. Dr. Landauer has since confirmed that the second defendant
did not consult with him on the 27 October 2008
9
.
An interesting revelation comes from the second defendant in
paragraph 17 of the postponement bundle at page 6 where he says that:
"Although he is criticized of having made an appointment for the
27 and 28 October 2008, he is still of the opinion that he
was still
at risk of stress associated with attending trial. The plaintiff
denies that the second defendant was ill disposed so
as not to be in
a position to attend court on the 27 and 28 October.
[23] The second defendant is not a
medical expert so as to formulate a persuasive opinion that he was at
risk in attending court
on that day in question. The very fact that
his own Dr. Landauer contradicted him on the aspect of an appointment
for that day,
leaves an impression that the second defendant simply
did not want to attend trial on that day. He had no good reason for
failing
to attend court. Besides, there is no explanation why the
third defendant, his spouse, did not attend court on the day in
question
and inform the court that he was indisposed.
[24] I deem it not necessary to
traverse all the issues raised by the second defendant in support of
his application and by the
plaintiff against the rescission. The
issue I referred to herein above, reveals, in my view, a serious
credibility flaw on the
part of the second applicant. It seems to me,
that he was prepared to pervert the truth to his favour, as Dr
Landauer has contradicted
him. That being the case, I am disinclined
to exercise my discretion in favour of the defendants. I am of the
view that I should
not in the circumstances of this case grant
rescission because I am not persuaded that good cause for the failure
to attend court
on 27 and 28 August 2008 has been shown.
[25] I also bear in mind that the
defendants have said nothing about their indebtedness to the
plaintiff's claim, save raising technical
defences. In this regard, I
find it appropriate to refer to the matter of Trans-African Insurance
C O. Ltd v Maluleka
1956 (2) SA 273
(A.D.) at278 F-G where the Appeal
Court said: "No doubt parties and their legal advisers should
not be encouraged to become
slack in the observance of the Rules,
which are an important element in the machinery for the
administration of justice. But on
the other had technical objections
to less than perfect procedural steps should not be permitted, in the
absence of prejudice,
to interfere with the expeditious and, if
possible, inexpensive decision of cases on their real merits."
[26]
The third defendant bound herself as surety. Annexure D was attached
to the summons. She can be in no doubt in what capacity
is she being
held liable. Besides, technical defences
are not to be countenanced. She has
failed to disclose ant substantive defence to this claim.
[27] I am of the view that the
defendants have failed to satisfy me that, in the circumstances of
this case, firstly they have a
bona fide defence to the plaintiff's
claim; secondly that they had good cause for their default; and
thirdly that I should exercise
my discretion in their favour.
[28]
In the premises, I make the following order:
1. That the application for
condonation for the filing of the replying affidavit is dismissed;
2.
That the application for rescission is dismissed;
3. That the defendants are jointly
and severally the one paying the others be absolved, to pay the costs
of this application on
a party and party scale.
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT: 05/05/2011
PLAINTIFFS ATT :
VAN ZYL LE ROUX
PLAINTIFF'S ADV :
MRVANCOLLOR
DEFENDANTS ATT
JACQUES VAN DER MERWE ATT
DEFENDANT'S"
ADV : E P VAN RENSBURG
1
Vide paginated page 24 of the pleading documents (annexure A Bond
agreement.
2
Superior
Court Practice at B1 -202
3
Sanderson
Techntool (Ply) Ltd
v
Intermenua
(Ply) Ltd
1980
(4) SA 573
(W) at 575H-576A where Coertzee said in respect of the
requirements of rule 31(2)(b) "An applicant who claims relief
under
this Rule, should comply with,
inter
aliai,
the
following requirement s. His application must be
bona
fide
and
not made with the intention of merely delaying plaintiffs claim and
he must show that he has a
bona
fide
defence
to the plaintiffs claim. It is sufficient if he makes out a
prima
facie
defence
in the sense of setting out averments,
which
if established at the trial,
would
entitle him to the relief asked for. He need not deal fully with the
merits of the case or produce evidence that the probabilities
are
actually in his favour.
4
Promedia Drukkers & Ultgewers (Edms) Bpk v Kaimowitz and Others
1996 (4) SA 411
(CPD) at 417J-418B; Collyn v Tiger Foods Industries
Limited
t'a
Meadow
Feed Mills (Cape)
2003 (6) SA 1
(SCA) PARA [11]; Harris v ABSA Bank
Ltd t/a Volkskas 2002[3] ALL SA 215 at 217.
5
2004
(3) SA 615
(SCA) at 624G-625A.
6
Vide
Unlawful
Occupiers , School Site
v
City
^/Johannesburg
2005 (4) SA 199
(SCA) at 206D-J.
7
1984
(3)
S 623 (AD) at 634E-635C.
8
Vide paginated page 7 paragraph 19 of postponement bundle. The
second defendant has referred this court to this postponement
bundle.
9
Vide
annexure "OB2" paginated page 83 of the application for
rescission bundle.