About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 245
|
|
Madzibadela and Another v Standard Bank of South Africa Limited and Another (1878/2022; 1879/2022) [2023] ZAFSHC 245 (19 June 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
1878-2022
1879-2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In the matter between:
MPHO
JONATHAN MADZIBADELA
Applicant
in case no
1878/2022
and first
applicant
in case no
1879/2022
PALESA
MOSIA
Second
applicant in
Case
no 1879/2022
and
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Respondent
CYMBOL
CONSULTING (PTY) LTD
Third
Party
HEARD
ON:
9
JUNE 2023
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
The judgment
was handed down electronically by circulation to the parties’
legal representatives by email and released to
SAFLII on 19 JUNE
2023. The date and time for hand-down is deemed to be 19 JUNE 2023 at
11:00
[1]
This is an application for leave to appeal against the judgement of
this court dismissing the
applications launched by the two applicants
to have the default judgement by Van Zyl, J under the above two case
numbers rescinded.
[2]
The default judgements were handed down by Van Zyl, J on an unopposed
basis on 7 July 2022. In case
no 1878/2022 she granted default
judgement against the applicant in the amount of R10 946 735.32
plus interest in favour
of the respondent. In case 1879/2022 she
granted default judgement on the same day against the first applicant
in the amount of
R8 218 476.10 plus interest in favour of
the respondent. Under the same case number she also gave default
judgement against
the second applicant to pay, jointly and severally
with the first applicant, the amount of R5 500 000.00 plus
interest to
the bank.
[3]
In both the main actions from which the default judgements arose, the
claims of Standard Bank
were founded on a settlement agreement
entered into between the bank, Cymbol Consulting and mr. Madzibadela
in his personal capacity.
The second applicant in case no. 1879/2022
had signed a suretyship for the indebtedness of Cymbol. It was common
cause between
the parties that Standard Bank had issued summons
against both the applicants in both applications on 21 April 2022.
Mr. Madzibadela
filed notice of intention to defend on 10 May 2022,
while Palesa Mosia filed such notice the following day. On 8 June
2022 a notice
of bar was filed in respect of mr. Madzibadela, and on
9 June 2022 a notice of bar was filed in respect of Palesa Mosia. On
14
June 2022 the attorneys representing the applicants requested an
extension of time to file their pleas, which request was refused
by
the attorneys representing Standard Bank.
[4]
On 20 June 2022 the bank filed a notice in terms of rule 31(5)(a) in
both the actions pertaining
to its intention to obtain default
judgement. On 22 June 2022 the attorneys for the applicants served
notices in terms of rule
35(12) and (14). On 6 July the applicants
filed their pleas and a third-party notice by way of e-mail. On 7
July the default judgements
were granted.
[5]
The applicants then sought a rescission of these judgements on a
number of grounds, which rescission
was refused by this court on 22
February 2023. It is against this refusal that the applicants now
seek leave to appeal.
[6]
The rescission of the default judgements were sought in terms of Rule
31(2)(b), which provides
that the court may, upon good cause shown,
set aside the default judgement, and in terms of Rule 42, which
provides
inter alia
that the court may rescind a judgement
erroneously sought or erroneously granted in the absence of a party
affected thereby. On
behalf of the applicants it was contended that,
were the court privy to their defences raised in their plea of 6 July
2022, the
court would not have granted the default judgements. In its
judgement, this court referred to the effect of a notice of bar,
namely
that, in terms of Rule 26, a party who fails to file a plea
inside the time frame provided in the notice of bar, will be
ipso
facto
barred. The applicants were therefore not entitled to serve
their pleas on 6 July 2022, and it could therefore not have any
effect
on the granting of the default judgements. The default
judgements were therefore not erroneously sought or granted, this
court
found.
[7]
It was further contended by the applicants in the rescission
application that the applicants ought
to have been notified
beforehand of the date on which the default judgements would be
sought. This contention was not correct,
since Rule 31(5)(a) provides
that an applicant for default judgement, where the defendant is in
default of delivery of a plea,
must give such defendant not less than
5 days’ notice of his intention to apply for default judgement.
In the present case,
this was done by the bank, and the notice was
duly received by the applicants’ attorneys. According to the
applicants, the
bank should have gone further to notify them of the
date when the application would be made.
[8]
In its judgement, this court found these contentions to be without
any merit. In this application for
leave, the applicants again raised
the same arguments to persuade the court that another court would
uphold their contentions.
At the hearing of the application for
leave, mr. Mtsweni appearing for the applicants, relied on a
judgement by the Full Bench
of the Gauteng Division in Pretoria under
case no. A390/2019, namely
Rezaei and Others v Adinolfi and Others
(unreported). That case dealt with the application of Rules 31(5)(a)
and 42,
inter alia
. Unfortunately, that case does not assist
the present applicants at all, since the respondent in that case had
failed to give notice
to the appellants of intention to apply for
default judgement. In the present case, such notice was indeed given.
[9]
To make things worse for the present applicants, the court in the
Rezaei case made the following remark:
“
When
an affected party invokes Rule 42(1)(a) for rescission of a default
judgment, as is done by the appellants in this appeal,
the question
arises whether the party that obtained the order was procedurally
entitled thereto, in order to decide whether the
order was
erroneously sought or granted, or not. If the party seeking the
order was procedurally entitled to do so, ….
it cannot be said
that the order was erroneously granted. The first respondent did not
give notice as required to the appellants
that he intends to apply
for default judgement, accordingly did not meet the requirements for
such a default judgement to be sought,
and the order was erroneously
sought and erroneously granted in the absence of the parties.”
[10] I
consequently find that there is no reasonable prospect that another
court would come to a different conclusion
in this matter.
[11]
The application for leave to appeal is dismissed with costs.
P. J. LOUBSER, J
For
the applicants:
Adv.
D. Mtsweni with adv. S. Maelane
Instructed
by:
Mabotja
Attorneys, Pretoria
c/o
Van Wyk & Preller Attorneys, Bloemfontein
For
the respondent:
Adv.
J. Els
Instructed
by:
E.
G. Cooper Majiedt Inc. Bloemfontein
/roosthuizen