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2021
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[2021] ZALMPPHC 65
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Moruleng Development Consultancy & Construction CC and Others v UNICIP Transport CC (3546/2019) [2021] ZALMPPHC 65 (4 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 3546/2019
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between:
MORULENG
DEVELOPMENT CONSULTANCY
AND
CONSTRUCTION CC
FIRST
APPLICANT
KWENA
JOHANNES MOHOLOLA
SECOND
APPLICANT
MAFOLO
MAPHILE SANDRIES
THIRD
APPLICANT
And
UNICIP
TRANSPORT CC
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant has brought a rescission of judgment application
against the respondent, whilst
the first and second intervening
parties (intervening parties) have brought an application to
intervene in the proceedings. Both
applications were heard
simultaneously.
[2]
In the rescission application, the applicant in its founding
affidavit has stated that on 10
th
June 2019 the respondent
had instituted liquidation proceedings (main application) against it.
On receipt of the respondent’s
application, the applicant
instructed Noko Maimela Incorporated to file opposing papers in the
main application. The applicant
submit that the application for
liquidation was set down for the 16
th
September 2020, but
its former attorneys did not inform it of the date of hearing and
also did not attend court on its behalf despite
been fully
instructed.
[3]
The applicant has stated that the respondent in its founding
affidavit in the main application
has stated incorrect and untrue
facts knowingly and with the deliberate intention to gain sympathy
from court and also to discredit
the applicant. It is the applicant’s
contention that the respondent had approached the court by way of
liquidation application
fully aware that it had entered into a
settlement agreement with the applicant, and that the amount due and
payable at the time
of issuing of the main application was far less
than the amount alleged to be owing in the main application. The
applicant further
submitted that the respondent approached the court
in the main application without putting it on terms and later
cancelling the
settlement agreement.
[4]
With regard to the intervening application, the intervening parties
have stated that they are
employees of the applicant, and that the
respondent did not serve the main application on them and other
employees of the applicant.
According to the intervening parties,
they became aware of the final liquidation of the applicant on 14
th
June 2021 when they overheard a conversation between Mr Makgoga a
member of the applicant and the respondent’s attorneys.
The
intervening parties submit that the liquidation of the applicant will
bring hardship on them and other employees. It is the
intervening
parties’ contention that the liquidation of the applicant will
not be in the best interest of the employees taking
into
consideration the number of families that are supported by them
through been employed by the applicant.
[5]
The respondent is opposing both applications. The respondent has
filed a Rule 6(5)(d)(iii) notice.
In that notice the respondent has
stated that its liquidation application was premised on a liquidated
demand that remained unsatisfied
resulting therein in the applicant
been considered to be unable to pay its debts as they became due
rendering it to be wound up.
It is the respondent’s contention
that the applicant has failed to put any evidence to show why they
allege that the default
order was erroneously granted.
[6]
The applicant in its founding affidavit has stated that default order
was erroneously granted
in their absentia and further that it had
made a good cause to sustain orders prayed for in the notice of
motion. That entails
that the applicant’s rescission
application has been brought in terms of Rule 42(1) of the Uniform
Rules of Court (Rules)
and common law.
[7]
In
Rossitter
and Others v Nedbank Ltd
[1]
Mbha JA said:
“
The law governing
an application for rescission under Uniform Rule 42(1)(a) is trite.
The applicant must show that the default judgment
or order had been
erroneously sought or granted. If the default judgment was
erroneously sought or granted, a court should, without
more, grant
the order for rescission. It is not necessary for a party to show
good cause under sub-rule. Generally, a judgment
is erroneously
granted if there existed at the time of its issue a fact which the
court was unaware of, which would have precluded
the granting of the
judgment and which would have induced the court, if aware of it, not
to grant the judgment.”
[8]
It is the applicant’s contention that on receipt of the
respondent’s liquidation application,
it had instructed Noko
Maimela Attorneys to oppose the respondent’s application.
However Noko Maimela Attorneys did not act
in accordance with the
applicant’s instructions and also did not attend court or
notify the applicant of the date of hearing.
Had the court which
granted the default order made aware that the applicant’s
intention was to oppose the respondent’s
main application, and
that the attorneys instructed by the applicant did not act in
accordance with their mandate, and further
that the applicant was not
aware of the date of hearing, I doubt whether a default order would
have been granted without the set
down been served directly on the
applicant.
[9]
The applicant alleges that it and the respondent had signed a
settlement agreement, and that the
amount due and payable at the time
of the issuing of the main application was far less than the amount
alleged in the respondent’s
main application. The applicant
therefore dispute the amount which the respondent has based its
liquidation application on. That
in itself create a dispute of fact
which if the court that granted the default order was aware of, would
not have granted the default
order on the papers as they stand. In my
view, the default order granted on 16
th
September 2020 was
erroneously granted.
[10]
Turning to the intervening application, the test for joinder requires
that a litigant must have substantial
interest in the subject matter
of the litigation, that is, a legal interest in the subject matter of
the litigation which may be
affected by the decision of the court,
and whether it is in the interest of justice for a party to intervene
in litigation. (See
Pheko
and Others v Ekurhuleni Metropolitan Municipality (No 2)
[2]
and International Trade Administration Commission v SCAW SA
[3]
).
[11]
The intervening parties are employees of the applicant, and it
is also a procedural requirement that they
should be served with the
liquidation application before a final order is granted. The
liquidation of the applicant is going to
affect their employment
contract and their livelihood. I am therefore satisfied that the
intervening parties have a direct and
substantial interest in the
liquidation application of the applicant and that if the applicant is
finally winded up, it will have
an effect on them, and that they
should be joined to the proceedings as second and third respondents
respectively.
[12]
In the result I make the following order
12.1 The default order
granted on 16
th
September 2020 is hereby set aside and
rescinded.
12.2 The intervening
parties are joined to the proceedings as second and third respondents
respectively.
12.3 The respondent is
ordered to pay the costs of the two applications on party and party
scale.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the applicants
Thobejane
LE
Instructed
by
Botha
Massyn & Thobejane
Associated
Counsel
for the respondent
Adv
J van Rooyen
Instructed
by
Donn
E Bruwer Attorneys
Date
heard
19
th
August 2021
Electronically
delivered on
4
th
October 2021
[1]
[2015] ZASCA 196
(1 December 2015) at para 16
[2]
[2015] ZACC 10
[3]
2012 (4) SA 618
(CC) at 625A