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[2023] ZAFSHC 390
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Erasmus N.O. and Others v Van Rensburg N.O. and Others - Appeal (A147/2022) [2023] ZAFSHC 390 (12 October 2023)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
Case no:
A147/2022
In
the matter between:
JOHANNES
JACOBUS ERASMUS N.O.
First
Appellant
GERHARD
ALBERTUS VAN RHYN N.O.
Second
Appellant
JOHANNES
JACOBUS ERASMUS
Third
Appellant
GERHARD
ALBERTUS VAN RHYN
Fourth
Appellant
and
STEPHANUS
JOHANNES NEL VAN RENSBURG N.O.
First
Respondent
MARGARETHA
ALETTA NOTLEY N.O.
Second
Respondent
ZANIA
HARTMAN N.O.
Third
Respondent
CORAM:
MUSI,
JP
et
OPPERMAN, J
et
DANISO, J
HEARD
ON:
11
SEPTEMBER 2023
DELIVERED
ON:
12 OCTOBER 2023
JUDGMENT
BY:
MUSI, JP
Judgment
[1]
This is an appeal against an order of a single Judge of this
Division. The court
a quo
dismissed the appellants’
(White Linen Laundry Trust (WLLT) and its trustees) condonation and
rescission of judgment applications.
It subsequently dismissed their
application for leave to appeal. They successfully petitioned the
Supreme Court of Appeal. The
appeal is with the leave of the Supreme
Court of Appeal.
[2]
On 30 September 2020, the respondent (Louriella Trust) issued summons
against the WLLT and its
trustees, in their personal capacities in
terms of suretyship agreements in which they bound themselves as
surety and co-principal
debtors of the WLLT.
[3]
During September 2016, the executor of the estate of the late Alfred
Robert Do Rego sold the property
known as Portion 16 of Erf 9[…]
also known as Tattersall Building 55 and 57 East Burger Street,
Bloemfontein to the respondent.
At that time, there was already a
valid lease agreement entered into on 1 November 2015 between Carlos
Nunes CC (CC) and Yvonne
Barendse (Barendse) and the WLLT in respect
of the property described as Portion 16 of Erf 9[…] situated
at 53 East Burger
Street, Bloemfontein.
[1]
[4]
In terms of the lease agreement the WLLT was supposed to pay the
relevant service providers for
electricity (Centlec) and municipal
services (Mangaung Metropolitan Municipality). The CC and Barendse
were supposed to pay the
property rates. The WLLT vacated the
premises and the respondent sued it for R 259 912.48 in respect
of the outstanding water
and electricity accounts and for R 11 299.00
with regard to an air conditioner that the WLLT allegedly removed
from the premises.
The latter amount represents the replacement value
of the air conditioner.
[5]
In its particulars of claim, the respondent alleged that it bought
the property as a going concern
and that the WLLT became its tenant
on date of registration of the property into its name. It therefore
sued the WLLT in its own
name as if it entered into a lease agreement
with the WLLT. It then transposed its name for that of the original
lessor and alleged
that the WLLT undertook all the duties and
obligations in the original lease towards it.
[6]
It is common cause that in the original lease agreement, the WLLT
chose 53 East Burger Street
as its
domicilium citandi et
executandi
(Domicilium). The third and fourth respondents did not
chose a domicilium. It is further common cause that the combined
summons
was issued on 30 September 2020 and that the said summons and
particulars of claim were served, on 21 October 2020, by affixing
them to the main entrance at 53 East Burger Street (Rule 4(1)(a)
(iv)). The sheriff made a note, on the return of service, to the
effect that Bond Inx – Hairsalon is conducting business at the
address. Default judgment was obtained on 15 July 2021.
[7]
In the application for the rescission of the judgment the WLLT
pointed out that it vacated the
leased premises during June 2019,
with the knowledge of the respondent. On 20 March 2020, the CC and
Barendse’s attorneys,
who are also the respondent’s
attorneys, wrote a letter of demand to the WLLT claiming the exact
amount that the respondent
is claiming from the appellants. The
letter was addressed to the White Linen Laundry Trust with address
Gruis Street, Hilton Bloemfontein.
In the aforesaid letter, reference
was made to the air conditioner that was allegedly removed by the
WLLT. On 13 May 2020, the
WLLT’s attorney requested and
confirmed that the summons may be served at their offices.
[8]
In its founding affidavit, the WLLT declared that it was
telephonically informed about a possible
judgment against it, by a Mr
Hennie Bergh (Bergh), on 14 November 2021. It disbelieved Bergh
because it had not received a summons.
On 23 November 2021, the WLLT,
represented by Erasmus (the third appellant), attended court in
connection with another matter and
their attorney showed him a copy
of the court order. It is common cause that the respondent’s
attorney sent a copy of the
summons, return of service and the order
to the appellants’ attorney on 17 November 2021. The
appellants’ attorney
therefore had knowledge of the order on 17
November 2021
[2]
. The
application for rescission was launched on 20 December 2021.
[9]
The court
a quo
made the following finding:
‘
The Court agrees
with the submission that actual knowledge of the judgment is
required. There is no evidence before Court
that the
Applicants’ attorney obtained actual knowledge of the judgment
prior to the 17
th
of November 2021, or that the Applicants
did not obtain actual knowledge of the judgment on the 23
rd
of November 2021.’
[10]
This finding is confusing because the testimony is that Erasmus was
shown a copy of the order on 23 November
2021. If that is the date on
which the order came to the appellant’s knowledge, no
condonation was needed because the application
would have been
brought within the prescribed time limit, 19 days. If, however, the
date on which the appellant became aware of
the order was 17 November
2021 then the rescission application was 3 days late.
[11]
The court
a quo
found that the appellants’ attorney did
not proffer any explanation why he failed to contact the appellants
telephonically
or via e-mail between 17 and 23 November 2021. In my
view, the order of the court
a quo
can only mean that it found
that the default judgment came to the appellants’ knowledge on
17 November 2021. That is why
the appellant had to apply for
condonation.
[12]
In applications for condonation, the interests of justice are
paramount. In
Grootboom
v NPA
[3]
it was stated that:
‘
However,
the concept “interests of justice” is so elastic that it
is not capable of precise definition. As the two cases
demonstrate,
it includes: the nature of the relief sought; the extent and cause of
the delay; the effect of the delay on the administration
of justice
and other litigants; the reasonableness of the explanation for the
delay; the importance of the issue to be raised in
the intended
appeal; and the prospects of success. It is crucial to reiterate that
both
Brummer
and
Van
Wyk
emphasise
that the ultimate determination of what is in the interests of
justice must reflect due regard to all the relevant
factors but it is
not necessarily limited to those mentioned above. The particular
circumstances of each case will determine which
of these factors are
relevant.
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it
to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default.’
[4]
[13]
In the minority judgment the manner in which the interests of justice
should be determined was set out thus:
‘
The
interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably
be left out of consideration in certain circumstances. For example,
where the delay is unacceptably excessive and there is no explanation
for the delay, there may be no need to consider the prospects of
success. If the period of delay is short and there is an
unsatisfactory
explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the presence
of reasonable
prospects of success, condonation may be refused where
the delay is excessive, the explanation is non-existent and granting
condonation
would prejudice the other party. As a general proposition
the various factors are not individually decisive but should all be
taken
into account to arrive at a conclusion as to what is in the
interests of justice.’
[5]
[14]
The appellants did not state whether the application for rescission
was brought in terms of Uniform Rule
31(2)(b)
[6]
or Rule 42(1)(a)
[7]
. The
appellants, amongst others, alleged that the summonses were not
properly served on them, because they were served at the chosen
domicilium of the WLLT, whilst the respondent knew that the WLLT had
vacated the premises. The court
a
quo
and
the parties dealt with the application as a Rule 31(2)(b)
application. We will also deal with it on this basis, although Rule
42(1)(a) is also applicable, because if there was no proper service
on a party then the order or judgment was erroneously sought
and
erroneously obtained.
[15]
In
Lodhi
2 Properties v Bondev Development
[8]
it was said:
‘
Where
notice of proceedings to a party is required and judgment is granted
against such party in his absence without notice of the
proceedings
having been given to him such judgment is granted erroneously. That
is so not only if the absence of proper notice
appears from the
record of the proceedings as it exists when judgment is granted but
also if, contrary to what appears from such
record, proper notice of
the proceedings has in fact not been given. That would be the case if
the sheriff’s return of service
wrongly indicates that the
relevant document has been served as required by the rules whereas
there has for some or other reason
not been service of the document.
In such a case, the party in whose favour the judgment is given is
not entitled to judgment because
of an error in the proceedings. If,
in these circumstances, judgment is granted in the absence of the
party concerned the judgment
is granted erroneously. See in this
regard
Fraind
v Nothmann
1991
(3) SA 837
(W)
where judgment by default was granted on the strength of a return of
service which indicated that the summons had 1been served
at the
defendant’s residential address. In an application for
rescission the defendant alleged that the summons had not been
served
on him as the address at which service had been effected had no
longer been his residential address at the relevant time.
The default
judgment was rescinded on the basis that it had been granted
erroneously.’
[9]
[16]
An applicant in a Rule 42 application does not have to show
sufficient cause or a
bona fide
defence. In order for an
applicant who approaches the Court in terms of Rule 31 to succeed,
such applicant must:
(a)
give a reasonable explanation of his default;
(b)
show that the application was made
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 is sufficient if he makes
out a
prima
facie
defence in the sense of setting out averments which established at
trial would entitle him to relief asked for.
[10]
[17]
The rescission application was three days late, which is not an
inordinately long period. Weak as the explanation
is, it is clear
that the appellants’ attorney did not inform them of the
default judgment between 17 and 23 November 2021.
Although there is a
limit beyond which a litigant should not be allowed to hide behind
its attorney’s dilatoriness and tardiness,
the appellants’
bona fide
defence weighs heavily in their favour.
[18]
The manner in which the respondent obtained the default judgment is
suggestive of an orchestrated Street
plan. The respondent caused the
summons to be served at 53 East Burger Street knowing that the
appellant ceased conducting business
at that address.
[19]
This is so because, during March 2021 the respondent’s
attorneys, whilst acting for its predecessor,
sent the letter of
demand to the WLLT claiming the same amount and for the replacement
of the air conditioner. At that stage, on
the probabilities, the
respondent’s attorneys knew that the WLLT is no longer
occupying the premises, because it used a different
address (Gruis
Street). The appellant’s attorneys invited the respondent’s
attorneys to serve the summons at their
offices. Although this would
have been an improper service because the summons was a process
commencing proceedings and had to
be served on the appellant, the
respondent could have enquired about the addresses of all the
appellants.
[20]
When the summonses were served at the premises there were already
other tenants occupying the premises. The
return of service clearly
states that the premises is occupied by a hairdressing business. The
appellant conducts a laundry business.
It is highly unlikely that the
owners of the hair salon would have occupied the premises without a
lease agreement or without the
respondent’s knowledge. If the
respondent did not have access to the premises it would not have
known in March 2021 already,
that the air conditioner was removed
from the premises.
[21]
I am convinced that the respondent’s assertion that it was
unaware that the appellant had vacated the
premises is improbable,
hollow and untenable. A party should not be allowed to misuse the
Rules in order to secure a judgment by
default. As I will show later,
the domicilium chosen for the lease agreement between the WLLT and
the respondent’s predecessors
cannot automatically be the WLLT
chosen domicilium in a lease agreement, verbal or in writing, between
it and the respondents.
The third and fourth appellants did not
choose
a domicilium but they were served
at the address chosen by the WLLT.
[22]
The original lease agreement commenced on 1 November 2015 and endured
for three years, subject to clause
4.2 and 4.3 which provide:
‘
Provided the
Lessee shall have faithfully carried out the terms and conditions of
this lease, and provided the Lessee is in no way
in default hereunder
at the expiration of the Initial Period, then the Lessee shall have
the right of renewing this lease for a
further period of 3 (THREE)
years (“
the Additional Period
”) upon the same
terms and conditions of this Agreement.
If the Lessee desires to
exercise the right of renewal referred to in clause 4.2, written
intention to exercise the option must
be given to the Lessor not less
than 6 (SIX) Months before the Termination Date, failing which the
right of renewal shall lapse.’
[23]
It is common cause that the original lease was not renewed and the
WLLT’s right to renewal lapsed because
it did not act in
accordance with clause 4.3. When the respondent took ownership of the
property, it did not enter into an express
written or verbal lease
agreement with the WLLT. The parties seemingly assumed that the
original lease agreement govern their relationship.
The respondent
did not state, in its particulars of claim, how and when it obtained
all the rights and duties of the CC and Barendse.
[24]
In an attempt to fill or explain this obvious vacuum, the respondent
pleaded that it bought the premises
as a going concern. This cannot
be correct since it only bought the building in which a business was
conducted by a lessee. It
had no interest, whatsoever, in the
business. It therefore could not have bought the premises as a going
concern.
[25]
The lease agreement was not ceded to the respondent when it purchased
the property. In its founding affidavit
in the application for
rescission, the appellants stated that the combined summons lacks
averments which are necessary to sustain
an action,
inter alia
,
because the respondent did not state how it acquired rights in terms
of the expired lease. I agree.
[26]
The WLLT attached a proof of payment document which on the face of it
indicates that the amount claimed by
the respondent was paid to the
service providers. It denied removing the air conditioner. It cannot
be said that the appellants
failed to show that it does not have a
bona fide
defence. Neither can it be said that the application
was brought as a delaying tactic or for any other ulterior motive. It
was a
bona fide
application.
[27]
I am of the view that the court
a quo
should have granted
condonation notwithstanding the appellants’ attorney’s
remissness. The prospects of success and
the interests of justice
militate against the order of the court
a quo
. Likewise, the
application for rescission should have been granted for the reasons
set out above.
[28]
I accordingly make the following order:
1.
The appeal is upheld with costs.
2.
The order of the court
a quo
is set aside and replaced with
the following order:
i.
Condonation for the late filling of the rescission application is
granted.
ii.
The order granted on 15 July 2021 against the appellants is hereby
rescinded.
iii.
The appellants are directed to file their plea within ten days of
this order, if so advised.
iv.
The costs of the application for rescission shall be costs in the
cause of the action.
C.J. MUSI, JP
I concur.
M. OPPERMAN, J
I concur.
N.S. DANISO, J
Appearances:
For
the Appellants:
Adv
F.G. Janse van Rensburg
JG
Kriek and Cloete
Bloemfontein
For
the Respondents:
Adv
R van der Merwe
Muller
Gonsior Attorneys
Bloemfontein
[1]
Although the addresses differ on the agreements, the parties were
ad
idem
that it is the same property.
[2]
In
terms of the Uniform Rules (Rule 1) a ‘party’ or any
reference to a plaintiff or other litigant in terms, includes
such
party’s attorney with or without an advocate, as the context
may require.
[3]
Grootboom
v National Prosecuting Authority and Another
2014
(2) SA 68 (CC); 2014 (1) BCLR 65 (CC).
[4]
At para 22 and 23.
[5]
At para 51.
[6]
Rule
31(2)(b) reads: ‘
A
defendant may within 20 days after acquiring knowledge of such
judgment apply to court upon notice to the plaintiff to set aside
such judgment and the court may, upon good cause shown, set aside
the default judgment on such terms as it deems fit.’
[7]
Rule
42(1)(a) provides: ‘
The
court may, in addition to any other powers it may have,
mero
motu
or
upon the application of any party affected, rescind or vary:
(a)
An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;’
[8]
Lodhi 2
Properties v Bondev Development
2007 (6) SA 87 (SCA).
[9]
At para 24.
[10]
Brown v
Chapman
1938 TPD 320
at 325;
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476 – 477.