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[2022] ZAECMKHC 28
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Georgiou v IEMAS Financial Services (Co-Operative Limited) (530/2020; 184/2020; 212/2020) [2022] ZAECMKHC 28 (3 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
In
the matter between:
Case
No: 530/2020
YVETTE
GEORGIOU
Applicant
And
IEMAS
FINANCIAL SERVICES (CO-OPERATIVE LIMITED
Respondent
AND
Case
No: 184/2020
YVETTE
GEORGIOU
Applicant
And
IEMAS
FINANCIAL SERVICES (CO-OPERATIVE LIMITED
Respondent
AND
Case
No: 212/2020
PHILLIP
GEORGIOU
Applicant
And
IEMAS
FINANCIAL SERVICES (CO-OPERATIVE LIMITED
Respondent
JUDGMENT
BESHE
J:
[1]
These three matters are similar
in most respects and involve similar issues. I therefore
propose to
deal with them in one judgment. The applicant is the same in two of
the matters. In respect of the third matter, the
applicant is husband
to the applicant in the first two matters. The same relief is sought
in all three matters.
[2]
The relief sought is the
rescission of summary judgments that were granted in the absence
of
the applicants on the 26 February 2021.
[3]
There was no appearance by or on
behalf of the applicant today the 2 June 2022 being the
date that was
appointed for the hearing of the rescission applications. Applicants’
attorneys of record withdrew in terms
of
Rule 16 (4) of the
Uniform Rules
of this court. The applicant was apparently advised
of today’s court date by her erstwhile attorneys via WhatsApp
and electronic
mail during January 2022.
[4]
The respondent moved for the
dismissal of the applications. It is also noteworthy that
the
applicant did not file any replying affidavits or heads of argument.
[5]
It is trite that a court has a
discretion to set aside a judgment granted by default or
in the
party’s absence upon good cause being shown by the affected
party.
[6]
It is settled that the
requirements for the granting of rescission of a default judgment
application are the following:
(a) The applicant must
give a reasonable explanation for his default.
(b) His application must
be
bona fide
and not made with the intention of merely
delaying the plaintiff’s claim.
(c) He must 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 if established at
the trial would entitle him to the relief asked for. See
in this
regard
Grant
v Plumbers (Pty) Ltd
.
[1]
[7]
The explanation proffered by
Ms
Georgiou
for their default is essentially that during February
2020, her husband suffered a heart attack, that his condition
deteriorated
dramatically during mid-January 2021. That she had to
take care of her husband which kept her constantly busy, tending to
his needs
and monitoring his medical attention. Due to lack of sleep,
she was not able to deal with her day-to-day administration. She lost
track of what was happening. When her attorney of record forwarded
queries relating to the matters, in her mind, she thought the
summary
judgment had been dealt with in December and as a result did not
provide any further instructions to her legal representative.
She
further states that due to failure to give instructions to her
attorney of record he was forced to withdraw from the matter
at the
last moment and an order was granted in her absence or by default.
[8]
As a defence,
Ms Georgiou
states that she did not receive the
Section 129
notices and
believes that this constitutes a material defect. She further asserts
that the amounts claimed by the respondent are
not correct.
[9]
It was argued on behalf of the
respondent in all three matters that applicants’ explanation
for the default / absence is vague and sketchy. I am inclined to
agree with the respondent that the explanation is not reasonable,
especially when regard is had to the fact that applicants’
attorney made enquiries about the impending matters (summary judgment
applications) and that instructions from the applicants were not
forthcoming. There is no explanation why the deponent to the founding
affidavit was of the impression that summary judgment had been dealt
with in December 2020. Yet, during October 2020 she deposed
to an
affidavit in support of a postponement of the hearing of the summary
judgment application. And, when it is clear that she
was in constant
contact with the applicants’ attorney of record. I am of the
view that applicants’ explanation for
the default / absence is
not reasonable.
[10]
Judging from the long history of the matter
inter
alia
:
Applicants’
failure to deliver an affidavit resisting summary judgment before 13
October 2020;
Applicants’
seeking an opportunity to furnish security for respondent’s
claims. However, no security was furnished even
though applicants had
been granted such an opportunity;
Postponement
sought and granted for applicants to deliver an amended plea, the
conclusion that the application is not
bona fide
but made with
the intention of delaying respondent’s claim, is inescapable.
[11]
As far as the defences raised are concerned, it is
trite that the failure by a plaintiff to issue a
Section
129
notice
is not per se a defence. It is even more so in this case in that
applicants do not allege that same were not given, but that
they were
not received. There is ample evidence that the notices were sent via
the correct post office. The law in this regard
is clear.
[2]
Namely that actual receipt of the
Section
129
notice is not a requirement. The notices were also attached to the
summons and particulars of claim. It is also not a
bona
fide
defence to merely deny being in breach of the agreement or arrears
without furnishing some proof of payment. I have no difficulty
in
finding that the applicants have not shown that they have valid
defences.
[12]
On the 27 January 2022 the matter was postponed at
the applicants’ request with costs reserved. I
am not aware of
any reason why the applicants who were seeking an indulgence and were
responsible for the matter not proceeding
on that day should not be
ordered to pay costs that were reserved on that date.
[13]
In the result, the applications for the rescission
of summary judgment grated on 26 February 2021 in respect
of the
following cases:
1. 530/2020;
2. 184/2020; and
3. 212/2020 are hereby
dismissed with costs on a scale as between attorney and client, such
costs to include costs reserved on 27
January 2022.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicants :
NO
APPEARANCES
Instructed
by
:
For
the Respondent
:
Adv: S. Sephton
Instructed
by
:
CARINUS JAGGA ATTORNEYS
67 African Street
GRAHAMSTOWN
Ref: Ms J. Jagga
Tel.: 046 – 940
0086
Date
Heard
:
2
June 2022
Date
Reserved
:
2 June 2022
Date
Delivered
: 3 June
2022
[1]
1949
(2) SA 472
(O) at 676 – 7. This decision has been followed in
a long line of cases.
[2]
See
Sebola and Ano. v Standard Bank of South Africa Ltd and Ano.
2012
(5) SA 142
CC at [74].