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[2023] ZAFSHC 272
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Theron v TWK Agri (Pty) Ltd (1431/2022) [2023] ZAFSHC 272 (18 July 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 1431/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO
MAGISTRATES: YES/NO
In
the matter between:
ESME
THERON
Applicant
and
TWK
AGRI (PTY) LTD
Respondent
In
re:
In
the matter between:
TWK
AGRI (PTY) LTD
Plaintiff
and
JOSME
(PTY) LTD
1
st
Defendant
(Registration
number: 201[…])
ESME
THERON
2
nd
Defendant
Identity
number: 780[…]
JUDGMENT
BY:
REINDERS
J
HEARD
ON:
25 MAY 2023
DELIVERED
ON:
18 JULY 2023
This judgment was handed
down in open court and on even date circulated to the parties’
representatives by electronic mail
communication.
[1]
The respondent herein issued summons against the present applicant
and a company known as Josme
(Pty) Ltd for payment of the amount of R
804 126, 23 together with interest and costs. The provisions of
the National Credit
Act
[1]
did
not apply as the legal entity is a juristic person and had an annual
turnover of more than R1 million at the time the agreement
was
entered into. Judgment was ultimately granted on 30 August 2022
against both defendants.
[2]
It is convenient to refer to the parties as in the main action. The
present applicant is the second
defendant therein.
[3]
The second defendant in her affidavit in support of rescission of the
default judgment confirms
having received the summons. Having
received same, she at the time, handed the summons to her attorney to
defend the matter. The
attorney filed a notice to defend but no plea
was ever filed on second defendant’s behalf. As a result, a
notice of bar was
filed and as no plea was filed, judgment by default
was ultimately granted against both defendants.
[4]
The attorney who appeared on behalf of second defendant has in the
meantime passed on and the
second defendant had not been able to
consult and ventilate the failure to file any plea.
[5]
Second defendant explains that she gave pertinent instructions to her
erstwhile attorney to defend
the matter. She trusted him in doing the
necessary and can only speculate on why he failed to file a plea on
her behalf. She only
became aware of the judgment against her when
the Sheriff wanted to attach her personal assets. She then contacted
her present
attorney of record who, within the prescribed time limit
of twenty days after obtaining knowledge of the judgment, brought
this
application.
[6]
In respect of the merits, second defendant explains that she never
signed any surety agreement
in respect of first defendant. Assuming
that annexure “A” to the summons is the application for a
credit facility,
she was unaware of clause 1 in Section B thereof and
her attention was not drawn to the fact that the signatory of the
document
would bind him/herself as a surety. Put differently, she
relies on the defence of
iustus error
based on a hidden clause
in an agreement where an application for credit was done on behalf of
another party (first defendant)
and the surety clause was hidden in
the terms of the agreement.
See:
Brink
v Humphreys & Jewell (Pty) Ltd
[2]
[7]
The second defendant also raises some other defences which I do not
deem necessary to repeat herein.
[8]
It is trite that a court may set aside a judgment by default in the
event that just cause is shown.
The court at the same time retains a
discretion to do so. In my view, the second defendant has given a
reasonable explanation for
her default and I cannot conclude that she
was in wilful default. As stated in paragraph [6] herein above,
one of the defences
relied upon by the second defendant relates to
the suretyship clause contained in the document signed by her. In
Brink
v Humphreys & Jewell (Pty) Ltd
supra
the
court was satisfied that such a document could be a trap for the
unwary and that the signatory could think he/she was signing
a credit
application form on behalf of a third party where he/she was in
addition thereto undertaking personal suretyship for the
debts of
that entity rendering the suretyship obligation void
ab
initio
.
[3]
In the present application the second defendant raises therefore in
my view a
bona
fide
defence which can only be adjudicated after evidence had been
adduced.
[9]
I am satisfied that the default judgment against second defendant
should be rescinded. There is
no application for rescission of the
judgment granted against first defendant. It is the attorney of
second defendant who did not
file any pleading on behalf of second
defendant resulting in the judgment being granted. She moves for an
indulgence in these circumstances
and should pay the costs of the
application. I shall afford her ten days from date of this order to
file her subsequent pleading.
[10] I
therefore make the following orders:
10.1
The default judgment granted against second defendant on 30 August
2022 is hereby rescinded and set aside.
10.2
The second defendant is afforded 10 (ten) days from date of this
order to file her subsequent pleading.
10.3
The second defendant is to pay the costs of the application.
C REINDERS, J
On
behalf of the applicant:
Adv
C.L. Harms
Instructed
by:
Christo
Faber Attorneys Inc.
c/o
Stander & Associates
BLOEMFONTEIN
On
behalf of the respondent:
Adv
N. Plaatjies
Instructed
by:
Mlozana
Attorneys
BLOEMFONTEIN
[1]
Act
34 of 2005.
[2]
2005
(2) SA 419 (SCA).
[3]
At
paragraphs [11] and [12] thereof.