IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – PORT ELIZABETH
Case no: 1810/12
Date Heard: 28/02/2013
Date Delivered: 04/04/2013
In the matter between:
CHANGING TIDES 17 (PTY) LTD N.O APPLIC ANT/PLAINTIFF
And
JOHN MARK RUITERS 1
st RESPONDENT/DEFENDANT
ID NO.
PRISCILLA BERTHA RUITERS 2
nd RESPONDENT/DEFENDANT
ID NO.
(Married in community of property to each other)
JUDGMENT
SMITH J:
[1]
The plaintiff instituted action against the defenda nts for: payment of the
sum of R376 526. 91; an order declaring the defenda nts’ immovable property
executable; and other ancillary relief.
[2] The defendants failed to enter appearance to defend within the prescribed
time limit and the plaintiff consequently applied f or default judgment. However,
instead of filing a written application for default judgment with the registrar (as it
was required to do in terms of Rule 31(5)(a) of the Uniform Rules of Court), the
plaintiff elected to bring the application on notic e of motion in terms of Uniform
Court Rule 6(5). The notice of motion thus called u pon the defendants to, inter
alia: appoint an address for service in terms of Rule 6(5 )(b); notify the plaintiff of
their intention to oppose the application within fi ve days; and file an answering
affidavit, if any, within 15 days.
[3] At the hearing of the matter I raised with Mr Scott , who appeared for the
plaintiff, the issue as to whether the matter was p roperly before me in the light of
the plaintiff’s failure to follow the procedure pre scribed in terms of Rule 31(5)(a).
That rule provides as follows:
“(5)(a) Whenever a defendant is in default of deliv ery of notice of intention to defend
or of a plea, the plaintiff, if he or she wishes to obt ain judgment by default, shall
where each of the claims is for a debt or liquidated demand, file with the registrar a
written application for judgment against such defendant:…”
[4] Mr Scott argued that even though the procedure adopted by the plaintiff does
not accord with the provisions of Rule 31, it is nevertheless a salutary one, because
it allows a defendant the opportunity to place fact s before the court which may be
relevant to the exercise of its discretion to decla re immovable property executable.
Unfortunately the defendants appeared in person and were therefore
understandably unable to make any legal submissions in this regard.
[5] In Lindeijer and Another NNO v Butler SA 2010 (3) 349, Jones J held
that the provisions of Rule 31(5)(a) are peremptory and that a court may only hear
an application for default judgment in respect of a debt or liquidated demand in
default of a notice of intention to defend or a plea if:
(i)
it is referred by the Registrar in terms of Rule 31(5)(b)(vi); or
(ii) it is set down in the High Court for consideration in terms of Rule
31(5)(d) by a plaintiff dissatisfied with the decis ion of, or the
directions given by the Registrar.
[6] Apart from the fact that I consider myself bo und by the Lindeijer decision
(supra), I am in respectful agreement with the line of reasoning adopted by the
learned judge. I am therefore of the view that the matter is not properly before me.
[7] Moreover, I am also not convinced that the pr ocedure prescribed in terms of
Rule 31(5) precludes a defendant from placing relev ant facts before the court
hearing the application for default judgment. The d efendants would have been
alerted to their statutory rights in the notice in terms of s.129 of the National Credit
Act, 34 of 2005, and in the plaintiff’s summons. In addition, Practice Rule 14A now
prescribes the procedure to be followed in applicat ions for default judgment where
a creditor seeks an order declaring immovable prope rty executable, as well as the
contents of the affidavit accompanying that applica tion. In the event, where an
order is sought to declare a debtor’s immovable pro perty executable, the registrar
must refer the entire application for default judgm ent for hearing in open court.
(Gundwana v Steko Development and Others 2011 (3) SA 608 (CC).
[8] I am accordingly of the view that the plaintiff’s failure to file a written request
for default judgment with the registrar in terms of Uniform Court Rule 31(5)(a) and
Practice Rule 14A, means that the matter is not pro perly before me. In the result
the matter is removed from the roll and the plainti ff is given leave to set it down in
terms of Rule 31(5)(a), after notice to the defendants.
_______________________
J.E SMITH
JUDGE OF THE HIGH COURT
Appearance
Counsel for the Plaintiff : Advocate Scott, SC
Attorney for the Plaintiff : Velile Tinto Associ ates Inc.
C/o
Jaque Du Preez Attorneys
99 Mangold Street
Newton Park
Port Elizabeth
Tel: 041 365 2232/ 39
Ref: J Du Preez /tl/6764
Appearance for the Defendants : In person
Date Heard : 28 February 2013
Date Delivered : 04 April 2013