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[2022] ZAKZPHC 46
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Kwadukuza Municipality v Tiger Tales (Pty) Ltd and Others (AR329/2021) [2022] ZAKZPHC 46; 2023 (1) SA 568 (KZP) (14 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
Case
No: AR329/2021
In
the matter between:
KWADUKUZA
MUNICIPALITY
Appellant
And
TIGER
TALES (PTY) LTD
First
Respondent
SIMSI
CONSTRUCTION AND PROJECT
Second
Respondent
MANAGEMENT
CC
SHERIFF
FOR LOWER TUGELA, R. SINGH
Third
Respondent
ORDER
The
appeal is dismissed with costs.
JUDGMENT
Ploos
Van Amstel J (Bedderson J concurring)
[1]
This is an
appeal against the dismissal by a magistrate of an application to
stay a sale in execution and rescind a default judgment.
The
appellant before us (‘the municipality’) was the
applicant in both applications, although it was not a party to
the
litigation that resulted in the default judgment.
[2]
The summons was issued by Tiger Tales (Pty) Ltd, trading as K9
Security Services.
The defendant was Simsi Construction and Project
Management CC. They are, respectively, the first and second
respondents in this
appeal. The sheriff for Lower Tugela is the third
respondent, but took no part in the appeal.
[3]
The claim in the summons was for payment for security services which
had been rendered
to the defendant. It did not defend the matter and
default judgment was granted against it. A warrant of execution was
issued and
the sheriff attached various movables, which included
tools, machinery and building material. He advertised his intention
to sell
the attached goods in satisfaction of the judgment, and the
sale in execution was scheduled for 20 August 2020.
[4]
On 19 August 2020 the municipality launched an urgent application for
the stay of
the warrant and the sale in execution, pending an
application for the rescission of the default judgment. It is not
clear from
the record whether the sale was stayed by agreement or in
terms of an interim order, but the application for a stay and the
application
for rescission were heard together on 29 April 2021. The
basis of the municipality’s application was that it was the
owner
of the goods that had been attached and that consequently it
was a person affected by the judgment and entitled to apply for a
rescission of the judgment. Section 36(1)
(
a
)
of the
Magistrates’ Courts Act 32 of 1944
provides that the court may,
upon application ‘by any person affected thereby’,
rescind or vary any judgment granted
by it in the absence of the
person against whom that judgment was granted.
[5]
The magistrate dismissed both applications, basically on the basis
that she saw no
point in rescinding the judgment if nobody was going
to defend the action. She made the point that the municipality would
not have
been able to join the action as a defendant and that its
real remedy with regard to the attachment of its property would have
been
interpleader proceedings.
[6]
Counsel for the municipality referred to a number of cases in which
it was held that
a person whose property was attached pursuant to a
default judgment granted against someone else was a person affected
by the judgment
and could apply for it to be rescinded.
[7]
In
Gluckman
v Wylde
[1]
a default judgment was granted against the appellant’s husband.
Mrs Gluckman was not a party to the action. A writ of execution
was
issued and a number of movables attached. Mrs Gluckman claimed that
the attached goods belonged to her, and brought an application
to
have the default judgment rescinded. It was not an issue in the case
whether Mrs Gluckman was ‘affected’ by the
default
judgment, and Pittman AJP’s statement that she was ‘clearly
affected thereby’ was made
obiter
.
The matter concerned the interpretation of a section in the
Insolvency Act 32 of 1916 and Mrs Gluckman’s locus standi to
apply for the rescission of the default judgment was not challenged.
[8]
Gluckman
was
referred to with approval in
Naidoo
v Harper’s Stores and Another.
[2]
Lansdown J, with Hathorn J concurring, held that a garnishee was a
person affected by a judgment obtained against his creditor
within
the meaning of Order XXIX, rule 4(1) of the Magistrates’
Courts’ rules, and in terms thereof entitled to apply
to review
and rescind or vary the judgment. Harper’s Stores had obtained
a default judgment against one Kenyon, and thereafter
a garnishee
order requiring Naidoo, as garnishee, to make certain payments to the
plaintiff out of debts owing by Naidoo to Kenyon.
Naidoo applied for
the default judgment to be rescinded. The plaintiff’s attorney
took the preliminary objection that the
garnishee applicant was not a
person affected by the default judgment and that consequently he was
not a person entitled to remedy
under the relevant rule. The
magistrate upheld the point and dismissed the application for
rescission. On appeal, Lansdown J said
the words of the rule ‘any
person affected’ by the judgment ‘who was not a party to
the action or matter’
were very wide
[3]
.
He found that the garnishee was a person affected by the judgment and
entitled to apply for its rescission.
[9]
I would hesitate to disagree with such eminent judges. I am however
puzzled as to
how such a matter would proceed after the default
judgment had been rescinded. If Mrs Gluckman had succeeded in her
rescission
application the writ would have fallen away. But she had
no basis for defending the action against her husband, nor did she
have
a sufficient interest to join the action as a defendant. That
suggests to me that she was not ‘affected’ by the
judgment
against her husband - she was affected by the attachment of
her property, the remedy for which is interpleader proceedings.
[10]
Later cases appear to me to have approached the matter differently.
United
Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and
Another
[4]
concerned Uniform rule 42(1)(a), which then provided as follows:
‘
The
Court may, in addition to any other powers it may have,
mero
motu
or
upon application of any party affected, rescind or vary;
(a)
an order or judgment erroneously sought or erroneously granted
without notice to any party affected thereby;…’
[11]
The matter of the applicants’ locus standi was raised
pertinently. Corbett J said that
it was clear that it was only a
limited class of persons who were entitled to bring an application
for the rescission of an order.
He added:
‘
The
Rule of Court specifically speaks of the application being brought by
“any party affected”; and it is manifest that
the Court
would not entertain an application under the common law at the
instance of a disinterested third party… but what
is not so
clear is how that limited class of persons is to be defined’.
[5]
He
then concluded that:
‘…
an
applicant for an order setting aside or varying a judgment or order
of Court must show, in order to establish
locus
standi
,
that he has an interest in the subject-matter of the judgment or
order sufficiently direct and substantial to have entitled him
to
intervene in the original application upon which the judgment was
given or order granted.’
[6]
[12]
The approach in
United Watch
solves the difficulty to which I
have referred, of an applicant who succeeds in a rescission
application but has no locus standi
to defend the merits of the case.
If a successful applicant has a sufficient interest to entitle him to
intervene as a defendant,
then it makes sense to allow him to apply
for a rescission so that he can defend the action.
[13]
Union
Watc
h
was referred to with approval in
De
Villiers and Others v GJN Trust and Others.
[7]
Van der Merwe JA put it thus:
‘
Corbett
J held that, in order to establish locus standi under rule 42(1)
(a)
,
an applicant must show a direct and substantial interest in the
judgment or order that the applicant wishes to have varied or
rescinded. This means a legal interest in the subject-matter of the
action or application which could be prejudicially affected
by the
order in that action or application.’
[8]
He
added the following:
‘…
rule
42 is for the most part a reinstatement of the common law and must be
interpreted in the context of the common-law principles
of finality
of judgments in the interests of certainty. This leaves no room for
rescission of a judgment at the instance of a person
who was not a
necessary party to the litigation concerned.’
[9]
[14]
The effect of
Union Watch
and
De Villiers
to my mind is
that the words ‘any person affected’ are not as wide as
previously thought, and as Corbett J put it in
Union Watch
, in
fact refers to a limited class of persons. Mrs Gluckman did not have
a legal interest in the action against her husband, and
the
municipality in this appeal had no legal interest in the first
respondent’s action against the second respondent for
payment
for services rendered. It therefore had no locus standi to apply for
the rescission of the default judgment. This conclusion
makes it
unnecessary to consider the other points raised on the papers.
[15]
The appeal is dismissed with costs.
Ploos
Van Amstel J
Bedderson
J
CASE
INFORMATION
Date
Judgment Reserved
:
9
September 2022
Date
Judgement Delivered
:
14
September 2022
This
judgment has been handed down electronically by circulation to the
parties’ representatives by email. The date and time
for hand
down is deemed to be 11h30 on 14 September 2022.
Appearances:
For
the Appellant
Mr A Stokes SC
Instructed
by
JAY PUNDIT AND
COMPANY
Suite
1, Prithvi Centre
131
Mahatma Gandhi Street
Stanger
Central
DURBAN
Tel:
(032) 551 1261/2
Email:
nishana@jpundit.co.za
(Ref:
N PANDAY)
For
the Respondent
Mr Kissoon-Singh SC
Instructed
by
KEVESH SINGH AND COMPANY
88
King Shaka Street
KWADUKUZA
Tel:
032 – 552 2107
Email:
kevesh.singh@gmail.com
(Ref:
MR K R SINGH/T003)
[1]
Gluckman
v Wylde
1933
EDL 322.
[2]
Naidoo
v Harper’s Stores and Another
1935
NPD 94.
[3]
Ibid
97
[4]
United
Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and
Another
1972
(4) SA 409 (C).
[5]
Ibid
at
414F-G.
[6]
Ibid
at 415A-B.
[7]
De
Villiers and Others v GJN Trust and Others
2019
(1) SA 120 (SCA).
[8]
Ibid para 22.
[9]
Ibid
para 27.