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2021
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[2021] ZALMPPHC 46
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Sand Savers (Pty) Ltd and Another v The Standard Bank of SA Ltd (7531/2019) [2021] ZALMPPHC 46 (16 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRIC
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 7531/2019
REPORTABLE:
YES/N0
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between:
SAND
SAVERS (PTY) LTD
FIRST
APPLICANT
JACOB
KHUMBULANI NKUNA
SECOND
RESPONDENT
And
THE
STANDARD BANK OF SA LTD
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1] The
respondent had issued combined summons against the applicants. The
summons was served on the applicants
by the sheriff of court by way
of affixing on the principal door of the premises. The applicants
failed to enter an appearance
to defend, and the respondent proceeded
to obtain a default judgment against the applicants on 19
th
May 2020.
[2] The
applicants have brought a rescission application in terms of Rule
42(1) of the Uniform Rules
of Court (Rules) seeking an order to
rescind the default judgment granted against them. The applicants’
founding affidavit
has been deposed by the second applicant in his
capacity as the director of the first applicant. The applicants in
their rescission
application have also included a condonation
application. The applicants’ application was served on the
respondent on 9
th
October 2020. The respondent is opposing
the applicants’ condonation and rescission application. The
second applicant in
the main action has been joined to the
proceedings in his capacity as a surety to the first applicant.
[3] On
condonation application, the second applicant avers that on 19
th
May 2020 he was in court even though he did not file any opposing
papers, and that he had knowledge of the default judgment on
19
th
May 2020. It is the applicants’ contention that because of the
strict lockdown regulations, they could not give proper instructions
to their legal representatives to launch their rescission
application. The second applicant submit that he only managed to
consult
his legal representatives on 15
th
July 2020.
[4] On
prospects of success the applicants have stated that the agreement
between them and the respondent
was specific. That the respondent had
loaned them money for the purchase of an earth moving vehicle for use
in their business,
and that they were supposed to pay back the loan
from the proceeds generated from the said vehicle. According to the
applicants,
they fell into arrears regarding payment of the loan when
the vehicle broke down, and as a result of that they could not
generate
income. That they have telephonically notified the
respondent about their situation. The applicants concluded by stating
that they
have made a good case for the default order of 19
th
May 2020 to be rescinded.
[5] The
respondent in its answering affidavit has stated that the applicants
have filed their rescission
application five months after the order
was granted. That the basis upon which the applicants are seeking
condonation for late
filing of their rescission application have no
merit.
[6] On
the merits of the application, the respondent has submitted that the
applicants through their
attorneys have written a letter to the
respondents’ attorneys acknowledging that they are in breach of
the agreement and
that the first applicant had made the last payment
during September 2019; that they were aware that a default order has
been granted
against the applicants; that they were aware that the
agreement has been cancelled and it does not exist any longer; and
that the
applicants have acknowledged that they owe the respondent
money and wanted to enter into a new payment arrangement plan.
[7] It
is the respondent’s contention that it has followed the due
processes, and that the court
was satisfied that a proper case has
been made for the granting of the default order. The respondent
submit that the last payment
made by the applicants was during
September 2019, and as at 27
th
May 2020 the arrears
amounted to R297 678.00 which kept on increasing every month by R17
000.00 due to non-payment of the monthly
instalments by the
applicants.
[8] The
default order of 19
th
May 2020 was
granted in the presence of the second applicant. Even though the
second applicant was present in court when the order
was granted,
that order remained a default order as it was granted on the basis
that the applicants did not file any opposing papers
and the
respondent’s action remained undefended. (See
Crockery
Gladstone Farm v Rainbow Farms
(Pty) Ltd
[1]
).
[9] The
applicants have been aware of the default order since 19
th
May 2020, however,
they only brought their rescission application five months later,
hence an application for condonation for late
filing of their
rescission application. The factors which the court must consider
when exercising its discretion whether to grant
condonation includes
the degree of lateness, the explanation for the delay, prospects of
success, degree of non-compliance with
the rules, the importance of
the case, the respondent’s interest in finality of the judgment
of the Court below, the convenience
of the Court and the avoidance of
unnecessary delay in the administration of justice. (See
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd and Others
[2]
).
[10] In
Uitenhage
Transitional Local Council v SA Revenue Services
[3]
Hefer JA said: “…Condonation is not to be had merely for
the asking; a full, detailed and accurate account of the
cause of
delay and their effects must be furnished so as to enable the Court
to understand clearly the reasons and to assess the
responsibility.
It must be obvious that, if non-compliance is time-related then the
date, duration and extent of any obstacle on
which reliance is placed
must be spelled out.”
[11] The
applicants in their founding affidavit have stated that they were
unable to timeously consult with
their legal representatives due to
the strict covid-19 regulations and that they were able to do so on
15
th
July 2020. On 16
th
July 2020 the
applicants attorneys wrote a letter to the respondent’s
attorneys acknowledging the debt and seeking a settlement
of the
matter and giving the respondent’s attorneys sixty days within
which to reply to their letter. In that letter the
applicant’s
attorneys did not request the respondent’s attorneys to consent
to the late filing of their rescission
application in case their
offer to settle the matter was unacceptable. In that letter the
applicants’ attorney has clearly
stated that they were aware of
the default order granted against the applicants.
[12] The
sixty days time period given to the respondent lapsed without the
respondent replying to the applicant’s
letter. On 2
nd
September 2020 the applicant’s attorney drafted a notice of
motion for the rescission of judgment. However, the founding
affidavit was only signed and commissioned on 8
th
October
2020 without explaining why it took them more than a month before
they signed the founding affidavit. When the applicants’
attorney wrote a letter of the 16
th
July 2020, it did not
seem that their intention was to bring an application for rescission
of the order of 19
th
May 2020, but their intention was to
settle as they have acknowledged the debt. It was only after the
sixty days period had lapsed
that the applicants decided to bring the
rescission application. There is no explanation furnished why they
decided to abruptly
change from negotiating a settlement agreement,
to a rescission of the judgment. In my view, the applicants’
explanation
for the delay is criptic and has no full details.
[13] In
the letter of the 16
th
July 2020, the applicants attorneys
are acknowledging that their last payment towards the reduction of
the loan was during September
2019, that they are in arrears as
stated by the respondent and that the agreement it had with the
respondent had been cancelled.
This is an unconditional
acknowledgment of debt. In their founding affidavit, there is no
valid defence which has been raised by
the applicants to the
respondent’s claim. What the applicants allege to be their
defence to the respondent’s claim
are their submissions that
when the respondent lent them money to purchase the earth moving
vehicle, the agreement was that the
loan will be paid back from the
proceeds generated by the said vehicle, and that since the vehicle
has broken they are not in a
position to generate income. This in my
view, will not amount to valid and sustainable defence in law.
[14] Even
if condonation for late filing of their rescission application is
granted, the applicants have no prospects
of success in their
rescission application. The applicants’ condonation application
stand to fail on the basis that the explanation
for the delay is not
adequate and further that they do not have prospects of success in
their rescission application. There is
no need for me to deal with
the merits of the applicants’ rescission application.
[15] In
the result I make the following order
15.1 The applicants’
condonation application is dismissed with costs on party and party
scale
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the applicants
M
Moitsi
Instructed
by
SC
Mdhluli Attorneys
For
the respondent
Adv
C Barreiro
Instructed
by
Tim
du Toit & Co Inc
Date
heard
5
th
August 2021
Electronically
delivered on
16
th
August 2021
[1]
[2019] ZASCA 61
(20 May 2019)
[2]
[2013] 2 All SA 251
(SCA) at para 11
[3]
2004 (1) SA 292
(SCA) at 297I-J