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[2022] ZAMPMBHC 19
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Sibiya v Peri Formwork Scafolding Engeneering (Pty) Ltd (1352 / 2020) [2022] ZAMPMBHC 19 (23 March 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 1352 / 2020
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
23 March 2022
In
the matter between:
MDUDUZI
KHULEKANI
SIBIYA
APPLICANT
And
PERI
FORMWORK SCAFOLDING
RESPONDENT
ENGENEERING
(PTY) LTD
J U D G M E N T
RATSHIBVUMO
J:
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives by
email. The date and time for hand-down
is deemed to be 10H00 on 23
March 2022.
[1]
This is an application for the rescission
of a summary judgment granted against the Applicant (the Defendant in
the main case) by
this court on 16 April 2021. The rescission
application is brought in terms of common law and it is opposed by
the Respondent (the
Plaintiff in the main case).
[2]
Following
is a brief background. Summons was issued by the Respondent against
the Applicant in which the Applicant was sued for
a debt arising from
several transactions involving the hiring of scaffolding and formwork
to MK Dube Consulting Pty (Ltd) (MK Dube
Consulting) a company in
which the Applicant is the sole director.
[1]
The Applicant was targeted because of a suretyship agreement he
signed with the Respondent in which he bound himself as a surety
and
co-principal debtor together with his company, MK Dube Consulting.
[3]
It is necessary to lay bare the history
leading up to this application in order to consider if it is able
tilt the scales of minimum
requirements. The summons was served on
the Applicant on 30 July 2020. He filed the notice of intention to
defend on 07 August
2020. With no plea forthcoming, the Respondent
proceeded to serve him with the notice of bar. The Applicant
thereafter filed a
plea on 16 September 2020. The application for
summary judgment was launched and served on the Applicant on 30
September 2020.
On 19 October 2020, the Applicant filed an amended
plea and a notice of intention to oppose the application for summary
judgment.
The Respondent submits that there was no amendment to the
plea as the document filed did not comply with the provisions of Rule
28. No further documents or pleadings were filed by the Applicant
until the application for summary judgment was heard and granted
on
16 April 2021. This was after a notice of set down was served on the
Applicant on 17 February 2021.
[4]
In the summons (and in the summary judgment
application), the Respondent made a claim of R2 533 239.96
against the Applicant.
After considering the plea filed in the
summons, the court granted summary judgment in a lesser amount of
R2 454 493.19.
No opposing affidavit was filed by the
Applicant (then Respondent) in the summary judgment application.
[5]
As
Gamble J noted in
Scholtz
& Another v Merryweather & Another
[2]
,
high
courts
have inherent powers of rescission under the common law, provided
that 'good' or 'sufficient' cause therefor has been shown
by an
applicant. Our courts have often said that the phrase 'good cause'
defies comprehensive definition: since it involves the
exercise of a
judicial discretion, it requires a flexible approach involving broad
principles of justice and fairness, and a consideration
of all the
relevant facts and circumstances of the case as a whole. In
practice, however, there have traditionally been two
requirements
which an applicant is generally expected to establish to succeed in a
rescission application, viz a reasonable explanation
by the applicant
for the default, and a
bona
fide
defence
which has some prospects of success.
[3]
[6]
These
principles were applied in
Chetty
v Law Society, Transvaal
[4]
by
Miller JA as follows,
“
It
is not sufficient if only one of these two requirements is met; for
obvious reasons a party showing no prospect of success on
the
merits will fail in an application for rescission of a default
judgment against him, no matter how reasonable and convincing
the
explanation of his default. And ordered judicial process would be
negated if, on the other hand, a party who could offer no
explanation
of his default other than his disdain of the Rules was nevertheless
permitted to have a judgment against him rescinded
on the ground
that he had reasonable prospects of success on the merits. The reason
for my saying that the appellant's application
for rescission fails
on its own demerits is that I am unable to find in his lengthy
founding affidavit, or elsewhere in the papers,
any reasonable or
satisfactory explanation of his default and total failure to offer
any opposition whatever to the confirmation
on 16 September 1980 of
the rule
nisi
issued
on 22 April 1980.”
[7]
The judgment sought to be rescinded
here was not what is commonly referred to as default judgment which
is usually granted without
a plea by the defendant. This was a
summary judgment granted after a plea was entered and considered, but
it was granted in default
as it was not opposed. The Applicant knew
of this application as it was served on him or his chosen legal
representative with power
of attorney. He also filed a notice to
oppose as he did with the summons when he filed a notice of intention
to defend. Like he
did with the summons where he laid back until he
was served with a notice of bar, no answering affidavit was filed
even after he
was served with a notice of set down. The default by
the Applicant was therefore not just on the date of hearing of the
summary
judgment which is 16 April 2021, but the whole period from 30
September 2020 when the application for summary judgment was served
on him until 16 April 2021 when summary judgment was heard and
granted. This is a period in excess of six months.
[8]
The Applicant attempts to blame his legal
representative for not filing an affidavit in opposition of the
summary judgment saying
they defied his instructions. An attorney
acts as one’s agent and cannot do anything unless so mandated
by the client. A
client may have a legal recourse against an attorney
who acts against the mandate and instructions. There is nothing in
the papers
filed by the Applicant that suggests that his legal
representative was not acting according to his mandate and style of
litigation.
The Applicant’s style of litigation in which he
waits until last moments or until the
dies
had expired can be traced in his treatment of the summons in the main
matter when the notice of bar had to be served in order to
acquire a
plea.
[9]
The Applicant saw no need to terminate
attorneys’ mandate then, opting to continue with their services
even in the opposition
of the summary judgment. The application for
rescission is now brought with different legal representatives. There
is no confirmatory
affidavit from the erstwhile legal representatives
nor is there any suggestion that the steps were taken against them
for not acting
according to his mandate. When the notice of set down
was served on his legal representatives in February 2021, they
brought it
to his attention and even met for consultation according
to him. This clearly demonstrates that the attorneys were acting on
his
behalf and he cannot easily expurgate that relationship now that
he wants an order to suit his situation. I am therefore not satisfied
that there is a reasonable explanation for the default on the part of
the Applicant. On this point alone, the application is bound
to fail.
[10]
The scale does not get tilted in favour of
the Applicant even on consideration of the second requirement. There
is no written judgment
by the court in respect of the summary
judgment, something that is common when applications are unopposed. I
am as such not in
a position to tell as to what extent was the
amended plea considered by the court when granting summary judgment,
if it was considered
at all. It is however clear that the amended
plea was part of the whole pleading bundle that was placed before the
court. Rescission
application is not an appeal process through which
this court would be expected to consider the merits that were
considered by
another court. Suppose the merits in the amended plea
were not considered, the question would be whether the amended plea,
raises
a
bona
fide
defence
which has some prospects of success.
[11]
The
Applicant in his plea to the summons already admitted that he signed
as a surety and co-principal debtor alongside his company,
MK Dube
Consulting. The defences attempted in the amended plea (which are all
technical in nature) would therefore not be available
in any manner
to him in light of the said admissions, even if the plea was to be
amended. This I state fully aware that the Applicant
had over six
months within which to amend the plea before the summary judgment
could be heard. As for the defences in question,
I refer specifically
to the plea suggesting reckless lending on the part of the Respondent
and a plea of non-joinder in which the
Applicant suggests that he
should have been sued alongside his company. After all, as alluded to
above,
[5]
the said company is
currently under liquidation.
[12]
The
Applicant tried to draw similarities between himself and
Dlamini
Construction Pty Ltd v Future Logistical CC
[6]
where a court granted a rescission of a summary judgment. The facts
of this case are distinguishable from
Dlamini
.
The most important distinction is that
Dlamini
was decided before Rule 32 was amended by
GN
R842 of 31 May 2019. Prior to the amendment, Rule 32 provided that
summary judgments could only be applied or granted after a
notice of
the intention to defend, but before a plea. Currently, summary
judgment can only be considered after a plea by the defendant.
In
essence, this entails that summary judgment applications were heard
without the version of the defendants, unless they choose
to oppose
them. Under the current dispensation, the court will always have the
version of the defendant even when the application
is uncontested,
which is what happened here.
[13]
In
Dlamini
,
summary judgment application was heard without the side of the
defendant as no opposing affidavit was filed on his behalf. Lastly,
in
Dlamini
,
the defendant’s legal representative withdrew a day before the
hearing without informing his client, and the court was not
alerted
of this.
In
casu
, the
attorney and client relationship was intact between the Applicant and
his legal representative even on the date the summary
judgment
application was heard. It follows therefore that the Applicant cannot
rely on
Dlamini
as his circumstances are different.
[14]
The
Respondent asked for punitive cost order against the Applicant given
the manner in which the applicant conducted his litigation
until now.
The other reason is the clause in the suretyship agreement that makes
provision for costs to be paid by the applicant
on attorney and own
client scale in case of litigation. Costs awards are in court’s
discretion. The court makes awards looking
at the outcome and what
appears to be fair to both parties.
[7]
While the courts cannot ignore the express wishes of the litigants in
a contract, when parties agree on the scale to be awarded
on costs,
they bear the onus to convince it as to the fairness thereof because
once allowed, it becomes a court order. I agree
that the manner in
which the Applicant conducted the whole litigation up to this stage
deserves to be frowned at, the scale asked
by the Respondent is too
drastic, unfair and not justifiable.
[15]
For the reasons above, the following
order is made.
[15.1] The application
for rescission is dismissed.
[15.2] The Applicant is
ordered to pay costs on attorney and client scale.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
FOR
THE APPLICANT
: ADV. FOURIE
INSTRUCTED
BY
: PJ LOURENS ATTORNEYS
NELSPRUIT
FOR
THE RESPONDENT : ADV
KLOPPER
: INNES R STEENKAMP
ATTORNEYS
C/O KRUGER &
PARTNERS INC
NELSPRUIT
DATE
HEARD
: 10 FEBRUARY 2022
JUDGMENT
DELIVERED : 23
MARCH 2022
[1]
See para 5.1 of the founding affidavit in support of the summary
judgment on p.8 of the paginated bundle, and
Sibiya
& Another v Peri Formwork
case 3334/2020 of this Division, in which the Applicant’s
company was placed under liquidation.
[2]
2014
(6) SA 90
(WCC) para 11-13.
[3]
1985
(2) SA 756
(A) at 765B-C.
[4]
Supra
at 765D-F.
[5]
See footnote 1 above.
[6]
(21429/2006)
[2007] ZAGPHC 211
(14 September 2007)
[7]
Intercontinental
Exports (Pty) Ltd v Fowles
1999
(2) SA 1045
(SCA) at 1055F-G;
ripp
v Gibbon & Co
1913
AD 354.