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[2022] ZAECMKHC 91
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Matabese v Seartec Trading (Pty) Ltd and Another (3380/2019) [2022] ZAECMKHC 91 (1 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. 3380/2019
In
the matter between:
JOYCE
NOMVUME
MATABESE
Applicant
and
SEARTEC
TRADING (PTY)
LTD
First Respondent
SHERIFF
OF THE HIGH
COURT
Second Respondent
JUDGMENT
RUGUNANAN
J
[1]
On 12 January 2021, the first respondent
(as plaintiff, and hereinafter referred to as ‘Seartec’)
obtained a judgment
by default against the applicant (as third
defendant) along with two other defendants, the first being
Ntsikelelo Matebese Funeral
Services (Pty) Ltd, and the second being
Ntsikelelo Matebese. The judgment was for payment of the amounts of
R595 472.35 and R26 081.25
together with costs. The respondent’s
claim was founded on a rental agreement in respect of printing
equipment which provided
for cost per copy and personal suretyships
signed by the applicant and the second defendant. In the deed of
suretyship the applicant
chose 11P Tantyi Location, Grahamstown,
Eastern Cape as her
domicilium citandi
et executandi
.
[2]
The
default judgment, in what I will hereinafter refer to as the main
action, was occasioned by the circumstance that the applicant
(as
well as the other defendants) were barred for failure to have
delivered their plea within the prescribed period of time.
[1]
[3]
On 18 March 2021 the applicant launched an
urgent application for an order for the return of goods attached by
the sheriff on 9
March 2021 together with a further order
interdicting the sheriff from executing against her. The fate of the
application was that
it was struck from the roll with costs on 23
March 2021.
[4]
The applicant (together with the other
defendants, as co-applicants) subsequently brought an application in
which they sought an
order rescinding the default judgment granted on
12 January 2021. In the rescission application the applicant featured
as third
applicant. That application was dismissed in a judgment
handed down by Smith J on 10 August 2021. Significant to note is that
Smith
J concluded that the applicant ‘has not given any
indication that she has joined in the application, neither has she
filed
an affidavit in support [thereof]’.
[5]
The affidavit to which Smith J refers is
attached as annexure JNM3 to the applicant’s founding affidavit
in these proceedings.
It is a supplementary affidavit sworn out by
the applicant on 4 June 2021 that was not filed by her attorneys in
support of the
rescission application that served before Smith J.
[6]
The present application was issued on 5
October 2021 – it is before this court at the instance of the
applicant in which,
in addition to costs, she essentially seeks
orders: condoning the late filing of this application, rescinding the
judgment by Smith
J, uplifting the bar for failure to have delivered
a plea and granting her leave to deliver a plea in the action
proceedings, that
all goods attached and removed by the sheriff be
returned, and that execution proceedings be stayed. Only Seartec
opposes the proceedings.
[7]
The
above scenario plays itself out as an application for rescission of a
prior order dismissing a rescission application. On the
face of it,
this raises doubt about the propriety of these proceedings from a
procedural and substantive perspective. Although,
neither party
addressed me on this issue, I will proceed to determine the matter on
the basis of the material set out in the papers
before me. The
applicant was cited in the main action as surety
[2]
,
and as I consider that she is a party affected by the judgment, I am
of the opinion that she has an interest in the subject matter
sufficiently direct and substantial to launch these proceedings. That
said, I proceed to deal with the merits of the application.
[8]
The applicant’s founding affidavit is
by no means a model of clarity. In claiming relief for a rescission
she seeks reliance
on uniform rule 42(1)(a) and the common law. I add
that, in argument, her counsel indicated that reliance on rule
42(1)(b) was
abandoned.
THE COMMON LAW
[9]
At
common law a party seeking rescission of a judgment or order must
show sufficient cause (or good cause as it is otherwise known).
[3]
An applicant relying on good cause must satisfy the court (i) that
there is a reasonable explanation for their default; and (ii)
that
they have a
bona
fide
defence which
prima
facie
carries some prospect of success.
[4]
Given my conclusion on the merits of the application, I do not intend
weighing down this judgment by dealing extensively with the
applicant’s reasons for seeking condonation. To this end I
refer to my comments in its closing paragraphs.
[10]
In so far as the applicant places reliance
on annexure JNM3 for aligning herself with the so-called defence/s
raised by the co-defendants
in the main action, I can do no better
than quote at length from the judgment by Smith J. In the passages
cited, where the learned
judge refers to ‘the respondent’
this should be read as reference to Seartec.
‘
[9]
To my mind they have also failed to establish a
bona
fide
defence with some prospects of
success. They assert that they are not indebted to the respondent in
the amount stated in the particulars
of claim, but have failed to
state what amount they aver is owing to the respondent. They also
aver that the respondent’s
representative misled the applicants
by misrepresenting that the printing equipment was suitable for the
first applicant’s
business requirements, when he had known that
this was not true. He accordingly induced the applicants to sign the
agreement to
their prejudice as the equipment turned out to be
unsuitable for the first applicant’s business requirements.
They aver furthermore
that the agreement between the parties had been
lawfully terminated on 21 February 2017, and that they have tended
the return of
the goods and payment of all outstanding amounts due at
that date. They accordingly dispute liability for any invoices raised
after
the alleged lawful termination of the agreement.
[10] It is trite that in
considering whether an applicant for rescission has shown good cause,
the court will not consider the above-mentioned
factors separately
but will on a conspectus of all the evidence, decide whether good
cause had been shown. Thus a solid defence
with good prospects of
success may compensate for a less than acceptable explanation for the
default.
[11] Although an
applicant is not at this stage are required to prove the veracity of
the facts put up to establish his or her defence,
facts must be
pleaded with sufficient clarity to satisfy the court that, if proved
in due course, they will constitute a valid
and
bona fide
defence to the respondent’s claim.
[12] The facts alleged by
the applicant’s in this regard are at best vague, sketchy and
contradictory. Although asserting
that the respondent’s
representative had misrepresented to them that the printing equipment
was suitable for the first applicant’s
business requirements,
no facts are averred in this regard. Instead, they seek to rely on
conclusions which have no factual bases.
By way of example; they do
not say when the alleged misrepresentation took place, by whom, the
exact nature thereof and in which
respects the equipment was
unsuitable. Their admission that they do owe the respondent some
undisclosed sum in respect of the use
of the equipment is also
contradictory since it suggests that they did in fact use the
equipment. The averment that the agreement
had been lawfully
terminated during February 2017 is equally devoid of any factual
foundation, is sketchy and wholly inadequate
to establish reasonable
prospects.’
[11]
As for the founding affidavit in the
present matter, there does not appear to be anything explicit in
support of allegations by
the applicant that she has a
bona
fide
defence, other than a nebulous
rambling of causes of complaint that the particulars of claim in the
main action are deficient for
want of compliance with uniform rule 18
which deals with the rules relating to pleading generally. She
asserts, moreover,
that she had
resigned
as director of Ntsikelelo Matebese Funeral Services (Pty) Ltd –
in that way suggesting that she was released from
liability for its
debts and that Seartec’s involvement of her in the main action
was unjustified.
[12]
The short shrift approach to the
applicant’s stance is that Seartec’s cause of action
against her is based on the deed
of suretyship as pleaded and
attached to the particulars of claim. The applicant has accordingly
not put up a
prima facie
indication of a sustainable defence, and insofar as she ventures to
make common cause with the co-defendants in the main action,
I am
unreservedly in agreement with the above remarks by Smith J.
RULE 42
[13]
Uniform rule 42(1)(a) permits a rescission
or variation of an order or judgment provided that such an order or
judgment is:
‘
An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby.’
‘
erroneously
sought/granted’
[14]
The ostensible basis upon which rescission
is sought on this ground is that the summons in the main action was
not served upon the
applicant; and that it manifested defects for
non-compliance with uniform rule 18(4) and (6).
[15]
In the deed of suretyship attached to the
summons in the main action, the applicant chose as her as her
domicilium citandi et executandi
the address specified earlier in this judgment. The deed of
suretyship signed by her is attached to Seartec’s answering
affidavit in these proceedings. In reply, the applicant has not
disputed having signed the agreement and contends herself by merely
stating that she has noted the contents of the paragraph in the
answering papers where reference is made to the agreement.
[16]
Rule 4(1)(a)(iv) of the uniform rules of
court makes provision that service of process shall be effected ‘if
the person so
to be served has chosen a
domicilium
citandi
, by delivering or leaving a
copy thereof at the
domicilium
so chosen’.
[17]
It is not disputed that service of the
summons was effected by the sheriff on 27 November 2019 on the
applicant’s son, Ntsikelelo
Matebese (the second defendant in
the main action), at the applicant’s chosen,
domicilium
.
The applicant’s complaint, however, is that service was not
effected upon her and accordingly she was unaware of the action
proceedings. In that regard there are two observations that require
comment.
[18]
Firstly,
rule 4(1)(a)(iv) does not require personal service. It is a
well-established practice which is recognised by the rule that,
if a
defendant has chosen a
domicilium
citandi
,
service of legal process in judicial proceedings at such place will
be good, even though it be a vacant piece of ground, or the
defendant
is not present at the time, or known to be elsewhere, or has
abandoned the property, or cannot be found.
[5]
The very purpose of a choice of
domicilium
is to relieve the party causing service of the process from the
burden of proving actual receipt.
[19]
Where service was effected on the
applicant’s son at her chosen
domicilium,
it was effective – and there is
accordingly no room for contending that there was irregular service
that occasioned a default
judgment being erroneously sought or
granted against her.
‘
in
the absence of any party affected thereby’
[20]
Secondly, the contention by the applicant
that she was unaware of the proceedings is far-fetched and is not
borne out by the fact
that she does not deny that she was represented
by the same firm of attorneys (Mqeke) in the main action, the
subsequent urgent
proceedings and the rescission proceedings –
all of which ensured under the same case number indicated in the
heading to
this judgment. On this leg of the applicant’s case,
her protestations that she was unaware of the proceedings do not
support
a claim for rescission on the basis that the default judgment
was erroneously sought or granted in her absence in circumstances
where her erstwhile legal representatives (Attorneys Mqeke) failed to
file her supplementary affidavit timeously. They were at
all times on
record as acting for her; as such I doubt if she can be exonerated
from the consequences of their tardiness.
[21]
As for the applicant’s causes of
complaint occasioned by Seartec’s alleged non-compliance with
rule 18, I am not persuaded
that it provides a sustainable basis for
seeking a rescission under the jurisdiction of rule 42(1)(a).
Non-compliance with rule
18 does not, in my view, implicate the kind
of error necessary for invoking the said rule. Where a party believes
that rule 18
has not been complied with, he or she may either have
recourse to rule 23, alternatively rule 30 of the uniform rules of
court.
Even if it may be assumed (without finding as such) that rule
18 had not been complied with, it was not legally incompetent for
Smith J to have dismissed the rescission application that served
before him.
CONDONATION
[22]
This
is not a requisite under rule 42 but is informed by the requirement
of good cause under the common law. In either instance
the discretion
to entertain a delayed application necessarily involves the weighing
of considerations of certainty and finality
in legal proceedings as
also the interests of justice.
[6]
The applicant has given a slender explanation for the delay of some
two months after delivery of the judgment by Smith J and the
launching of these proceedings. On the merits she has unmistakably
failed to demonstrate any prospect of succeeding on any of the
grounds relied on in support of this application. The indulgence
sought for excusing the delay in launching these proceedings does
not
assist in advancing a case where there is none, nor will it advance
the administration of justice in achieving finality in
litigation.
[23]
In the result the application is dismissed
with costs.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Applicant:
I.
Makuduka
Instructed
by
Sipho
Klaas Inc.
c/o
Mgangatho Attorneys
Makhanda
(Ref:
A. Basson)
For
the First Respondent: T. Miller
Instructed
by
Wheeldon
Rushmere & Cole Inc.
Makhanda
(Ref:
M Van Der Veen)
Date
heard:
04 August 2022
Date
delivered:
01 November 2022
[1]
As
per
an order of court of 8 October 2020,
per
Swartbooi AJ, page 129.
[2]
Having signed a suretyship agreement dated 16 July 2015 attached to
the summons in the main action as annexure POC 12.
[3]
Athmaram
v Singh
1989
(3) SA 953
(D&CLD) at 957C;
De
Wet and Others v Western Bank Ltd
1979 (2) SA 1031
(AD) at 1040F
[4]
De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd
1994 (4) SA 705
(ECD) at 708H-J;
Athmaram
v Singh supra
at 957C
[5]
Armcoal
Collieries Ltd v Truter
1990 (1) SA 1
(A) at page 5J-6;
Loryan
(Pty) Ltd v Solarsh Tea and Coffee (Pty) Ltd
1984 (3) SA 384
(W) at 847C-F quoted with approval in
Firstrand
Bank Ltd and Others v Meyer
(08/32310) [2011] ZAGPJHC 78 (12 August 2011) at paragraph [13]
[6]
First
National Bank of Southern Africa Ltd v Van Rensburg N.O. and Others:
in re First National Bank of Southern Africa Ltd v
Jurgens and
Others
1994
(1) SA 673
(TPD) at 681