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2024
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[2024] ZAGPPHC 251
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MM Chartered Accountants Inc. v Ntokazi Consulting (Pty) Ltd (2021/54556) [2024] ZAGPPHC 251 (11 March 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Case No:
2021/54556
Reportable: No
Of interest to other
Judges: No
Revised: No
SIGNATURE
Date: 11/03/2024
In the matter between:
MM CHARTERED ACCOUNTANTS
INC.
Applicant
and
NTOKAZI CONSULTING
(PTY) LTD
Respondent
JUDGEMENT
,
MOOKI
J
1
The applicant seeks rescission of a
judgement granted in favour of the respondent. The rescission
is sought in terms of Rule
42 and Rule 31 (2) (b). The
application is opposed.
2
The chronology of events is material to
the determination by the court. The respondent issued summons
on 8 November 2021.
The applicant served a notice to defend on
11 November 2021. There was no plea. The respondent
issued a notice of bar
on 13 December 2021. The applicant did
not file a plea and became ipso facto barred.
3
The applicant made a Rule 27 (1)
application] on 17 February 2022. The respondent then applied for
default judgement. The matter
came before court in the unopposed
motion court on 5 April 2022. It was ordered removed to the
opposed motion court roll.
4
The last day by when the applicant was
to file its opposing affidavit in the default judgement was on 26
April 2022. The applicant
did not file its affidavit by that
date. The respondent, on 14 June 2022, set the matter down on
the unopposed motion court
roll. The applicant then filed its
affidavit opposing default judgement on 17 June 2022.
5
The applicant indicated in its practice
that the the matter was opposed. The matter came before the court in
the unopposed roll
on 1 July 2022. There was no representation
for the applicant when the matter was called. The court granted
judgement
in favour of the respondent. This is the judgement
which the applicant seeks to rescind.
6
The applicant raises various bases for
why the judgement ought to be rescinded. I do not consider it
is necessary to deal
with all those grounds. The respondent
ought not to have enrolled the matter as unopposed. That is
because the court
made an order on 5 April 2022 that the matter be
heard in the opposed motion court.
7
The applicant must succeed in having
the judgement rescinded. The applicant must, however, pay the
costs and do so on an adverse
scale. This is because the
applicant has been extremely dilatory in undertaking steps required
to bring the matter to finality.
8
The chronology referred to in
paragraphs 2 to 4 shows the applicant to be dilatory. The
applicant did not contest the submission
on behalf of the respondent
that, for example, the applicant has done nothing to prosecute its
Rule 27 (1) application. That
application was made on 17
February 2022.
9
It also bears noting that the applicant
launched the rescission application only after the respondent had
issued a writ of execution.
The applicant was ordered, when the
court referred the matter to the opposed roll on 5 April 2022, to
bear the costs on an attorney
and client scale. All these instances
show that the applicant was supine in how it deals with the matter.
10
The
respondent, on the other hand, is bound by the order of 5 April
2022. The respondent should not have enrolled the matter
on the
unopposed roll.
11
I
make the following order:
(a)
The judgement made in favour of the
respondent on 1 July 2022 is rescinded.
(b)
The applicant is ordered to pay the costs
on an attorney and client scale.
Omphemetse Mooki
Judge of the High Court
Heard on: 7 February 2024
Delivered on: 11 March
2024
For the Applicant:
MG SKHOSANA
Instructed by:
ABRAMS MADIRA INC.
ATTORNEYS
For the Respondent:
PT ZUMA
Instructed by:
MOLAI ATTORNEYS