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[2019] ZAECPEHC 76
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van der Merwe t/a Anne's Care Centre v Eastern Province Caterers (Pty) Ltd (3541/2018) [2019] ZAECPEHC 76 (5 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No. 3541/2018
Date
heard: 31 October 2019
Date
delivered: 5 November 2019
In
the matter between:
ANNE
VAN DER MERWE t/a ANNE’S CARE CENTRE
Applicant / Defendant
And
EASTERN
PROVINCE CATERERS (PTY) LTD
Respondent / Plaintiff
JUDGMENT
Beyleveld
AJ:
[1]
The applicant seeks an order that the default judgment obtained
against
her by the respondent be rescinded.
[2]
The respondent commenced action proceedings against the applicant in
October
2018 claiming payment of catering services rendered by the
respondent to the applicant in terms of a written catering contract
concluded between the parties on 25 January 2018.
[3]
Default judgment was obtained against the applicant on 25 January
2019,
service of the summons has been served at the
domicilium
address of the applicant. The summons was served on a Ms Chantel
Marais.
[4]
The applicant claims she was in hospital at the time the summons was
served
and states that she only became aware that action had been
instituted when she was served with a writ of execution. Summons was
properly served on the applicant’s employee but no affidavit is
filed by the person (Karl van der Merwe) to whom Ms Marais
says she
handed the summons.
[5]
The applicant in her founding affidavit refers to a meeting with the
respondent’s
representative after the issue of summons. She was
informed of her indebtedness in the sum of R101 000.00. The
probabilities
that during this discussion no reference was made to
the summons, in which a similar amount is claimed, are so remote that
one
can justifiably reject any contention that the applicant was
unaware of the summons. What is particularly significant is the
absence
of an affidavit from Mr van der Merwe disclosing what he did
with the summons.
[6]
Furthermore, the applicant’s accountant, after service of the
summons,
spoke to the respondent’s representative regarding
outstanding amounts. The respondent contends that a payment proposal
was
made, whilst the applicant asserts that the conversation was in
connection with discrepancies in the account and if there “
were
monies outstanding, the correct amount being determined, we would
then pay in instalments, if need be
.”
[7]
Leaving aside the Plascon Evans rule, the overwhelming probabilities
are
that the applicant’s accountant was instructed after
receipt of the summons, to negotiate payment in instalments.
[8]
I am
accordingly of the view that there has not been a reasonable and
acceptable explanation for the default
[1]
and on this basis alone the application stands to be dismissed.
[9]
I am also
of the view that the applicant has not shown that there is a
bona
fide
defence to the claim which
prima
facie
has some prospect of success
[2]
.
[10]
The applicant is silent as to whether the application is in terms of
Rule 42, the common
law or Rule 31. It seems, however, that
inferentially the applicant relies on Rule 31(2)(b) as the allegation
contained in paragraph
22 of the answering affidavit is simply noted
by the applicant in reply. The respondent in paragraph 22 states that
the application
for rescission “appears to be premised on the
provisions of Rule 31(2)(b)”.
[11]
Whatever description the applicant gives the basis of the
application, the common law ground
to set aside a judgment may also
be considered .
[12]
The
application cannot be in terms of Rule 42
[3]
.
It also cannot be in terms of Rule 31(2)(b) as the judgment was not
granted by a court.
[13]
Has the applicant shown that there is a
bona fide
defence
which
prima facie
has some prospects of success?
[14]
Put
differently, has the applicant raised the existence of an issue fit
for trial
[4]
[15]
What must, therefore, be considered is whether the applicant has
sufficiently succeeded
in making out a
bona fide
defence which
has prospects of success.
[16]
The applicant’s defence is an alleged counterclaim.
[17]
It is common cause that the catering agreement has been cancelled.
What is not common cause
is the reason for cancellation.
[18]
The respondent contends that the agreement was consensually cancelled
by virtue of the
applicant’s precarious financial position
whereas the applicant’s notice to cancel lists dissatisfaction
with the quality
of food.
[19]
The respondent, in turn, communicated in writing with the applicant a
few days later recording
that the agreement was consensually
cancelled “
due to financial constraints
”.
[20]
The applicant does not deny the letter by the respondent dated 22
June 2018 confirming
cancellation of the agreement by virtue of
financial constraints, and claiming payment of monies outstanding for
June 2018, nor
does she deny a further letter dated 27 June 2018
recording non-payment and notice of a last meal to be served.
[21]
One would
have expected the applicant to have raised the allegation of
inadequate performance when faced with payment demands. Whether
she,
as a layperson, understood the technical meaning of a counterclaim,
is not the important question; the question is rather
why she did not
raise lack of performance when asked to pay. She, in fact, makes some
payments without demur
[5]
.
[22]
The
applicant is in law entitled to raise an unliquidated counterclaim as
a defence
[6]
.
[23]
I am not
satisfied that the applicant has sufficiently disclosed the nature
and grounds “of her counterclaim”
[7]
.
Very little or no detail is furnished and one gains the distinct
impression that the counterclaim is a belated afterthought. It
is not
even disclosed when the patients left , nor is there a confirmatory
affidavit from any of them. Furthermore, one would have
expected the
applicant to raise the loss of patients with the respondent,
particularly when pressed for payment.
[24]
For the reasons set out above, I am of the view that the application
stands to be dismissed.
There is no reason why costs should not
follow the result.
[25]
I, therefore, grant the following order:
[25.1]
The application is dismissed with costs.
_______________________
A.
BEYLEVELD
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
the Applicant:
Mr S Laubscher
12
Buckingham Road, Mill Park, Port Elizabeth
Ref:
S Laubscher
Tel:
(041) 373 1760
Obo
the Respondent:
Adv A. van Loggerenberg
Instructed
by Tim
Du Toit & Co Inc c/o Goldberg & De Villiers
13
Bird Street, Central, Port Elizabeth
Ref:
R Obermeyer / K Pillay
Tel:
(041) 501 9801
[1]
Chetty v Law Society, Transvaal 1985 (2) SA 756 (A)
[2]
Colyn v Tiger Food Industries t/a Meadow Feed Mills (Cape) 2003 (6)
SA 1 (SCA)
[3]
Lodhi 2 Properties Investments CC and Another v Bonder Developments
(Pty) Ltd 2007 (6) SA 87 (SCA)
[4]
Sanderson Technitool (Pty) Ltd v Intermenua (Pty) Ltd
1980 (4) SA
573
(A) at 575H-576A
[5]
The respondent when seeking judgment erroneously omitted to credit
two small payments. Counsel for the respondent indicated that
the
applicant has been credited with such amounts, including a further
payment made after judgment.
[6]
E.H Hassim Hardware v Fab Tanks CC
[2017] ZASCA 145
at
[21]
[7]
E.H Hassim hardware
supra
at para [28]