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[2021] ZAGPPHC 169
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Mkhwanazi and Another v Standard Bank of South Africa SOC Limited (40804/2012) [2021] ZAGPPHC 169 (29 March 2021)
REPUBLIC
OF SOUTH AFRICA
I
N
THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE
NO:
40804/20
1
2
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
ABEL
MKHWANAZI
FIRST
APPLICANT
MASIDEESA
LYDIA
MKHWANAZI
SECOND
APPLICANT
and
THE
STANDARD
BANK
OF
SOUTH
AFRICA
LIMITED
RESPONDENT
JUDGMENT
MOGALE,
AJ
I
NTRODUCTION
[1]
This is an application for the rescission of judgment granted by
Madam Justice Janse van Niuwenhuizen on the 18th November 2014
in
favor of the respondent in default against both applicants
[2]
The applicants contend that notwithstanding the notice of set down
having been served, indicating that the matter was set down
for
hearing on the 18th November 2014, the matter did not appear on any
of the rolls for that week and reasons only known to the
respondent,
the default judgment was granted on the 18th November 2014
[3]
The applicant submits that the judgment was obtained in an unlawful
and or an improper manner and further that the application
should
succeed. The application is opposed.
ISSUES
THAT
ARE COMMON COURSE
[4]
The respondent served the applicants with notice of set down for the
hearing on the 18th November 2014 for the arrear amount
towards their
home loan account.
[5]
The applicants failed to file a notice of intention to oppose the
application. The applicants opted to attend court as per the
notice
of set down.
[6]
On the 18th November 2014, the applicants attended court,
unfortunately, the matter was not appearing on the court roll for
that week. The applicants approached the Registrar who also assisted
the applicants to locate the matter but nothing was found.
The
applicants were issued a letter stating that the matter was not
appearing on any of the court rolls.
[7]
The respondents confirmed that there was a typo with the case number
40804/2014 and the matter was allocated under the name
First Rand
Bank Limited v Add X Trading 106 CC and Another under case Number
4084/2012.
[8]
Applicants became aware of the writ of execution accompanied by the
default judgment on 08 April 2015.
ISSUES
TO BE DETERMINED
[9]
The court has to determine whether the default judgment was obtained
in an unlawful and or an improper manner. Whether the applicants
satisfied the requirements for a rescission of judgment to be
granted. The court also needs to determine whether the applicant
established an entitlement for rescission
DEFAULT
JUDGMENT ORDER
[10]
The applicants were present in court on the 19th November 2014 after
being served with notice of set down. The applicants did
not file an
opposing affidavit or notice of intention to defend as they had
intentions of being in court on the day in question
to negotiate with
the attorney handling their matter. After a diligent search, it was
discovered that their matter was not appearing
on the court roll for
the week of the 18th November 2014. The registrar also confirmed that
their matter was not appearing on any
of the court rolls by issuing a
confirmation letter to the applicants (See annexure AB3). The
applicants were only made aware of
the default judgment when the
sheriff served them with the writ of execution accompanied by the
default judgment order which was
granted on the 19th November 2014 by
Justice Janse van Niuwenhuizen on the 08 April 2015.
[11]
The respondent acknowledged that the matter was indeed enrolled as
item number 138 before Justice Janse van Nieuwenhuizen.
The
respondent further accepted that there was a typo in the relation to
the information contained on the court file on 18 November
2014 when
the matter was before the court.
"
No 138 First Rand Bank Limited vs ADD X Trading 106 CC +, case number
4084/2012"
[12]
It is undisputed that both the case number and the names of the
parties to the proceedings were incorrectly written or endorsed
on
the file .The names of the applicants are not appearing on the file.
The respondent submits that the correct file was before
court as the
respondent had appropriately rectified the erroneous court roll in an
open court during the hearing of the matter.
The applicants' names
were called out loud in an open court but there was no answer. There
was no opposing affidavit or notice
of intention to defend from the
applicants and the court was informed of such failure. Subsequent to
that, a default judgment was
duly granted after the respondent
established a proper case to the satisfaction of the presiding Judge.
RELIEF
SOUGHT FOR CONDONATION
[13]
The respondent submitted that the rescission application was issued 5
months after the order was granted and the applicants
failed to file
condonation for late filing . That this application is defective as
it does not comply with the Uniform Rules. This
court has the
discretion to grant condonation for non-compliance only if the
applicants have shown good cause and the court is
satisfied that it
is in the best interest of justice to do so.
[14]
The applicants on the other hand contended that they only became
aware of the writ of execution accompanied by the default
judgment on
the 08
th
April 2015 which the sale was to take place on
the 09
th
April 2015. On the 09
th
April 2015,
the applicant's previous attorneys drafted and prepared the
application for rescission of judgment and the respondent's
attorneys
were served on the same day. On the 15th of April 2015, the
respondents were to file a notice of intention to oppose
but that was
only done on the 25th of October 2019. The applicants previous
attorneys of record attempted to draw a court file
to set the matter
down for rescission of judgment but the court file was missing as a
result, this coursed a delay in bringing
the application for
rescission of judgment to court (See Annexure AB6)
COMPLIANCE
WITH THE COURT ORDER
[15]
On the 6th October, 2020 parties appeared before Honourable Justice
Fourie whereby the respondent was ordered to file a supplementary
opposing affidavit within 5 days of the order and applicants to file
their replying affidavits and heads of arguments if any, 10
days
thereafter .
[16]
The respondent argued that they filed their supplementary opposing
affidavit by 13th October 2020. The applicants omitted to
file their
replying affidavit within the stipulated time frame, as a result, the
respondent argued that their version stands uncontested
and must be
accepted but the court.
[17]
Applicants accept that they failed to file their replying affidavit
within 1Odays as ordered by the court, further that they
failed to
file condonation for late filing after serving their replying
affidavit on the 1st December 2020 . The applicant submitted
that
they wrote the letter to the respondents asking the indulgence but
the respondents never responded. They further argued that
the
respondents are raising this issue from the bar and had never raised
it on their answering affidavit.
NON..JOINDER
[18]
The
respondent subm
i
tted
that the property in issue has now been purchased by either
Moeketsi or
Nomfuyo.
That
the
applicant
fai
l
ed
to
notify
the
new
purchaser of their intention to rescind the judgment,
neither
before nor after
the issuing
of this application.
The new
owner(s) has a direct and substantial
interest in
the rel
i
ef
sought but the applicant neglected to join the registrar of deeds as
a party
to these
proceedings. The applicant referred
the
court
to
the case
of
Knox
NO v
Mofokeng
[1]
that
in
the
event
of
a
valid
judgment being
rescinded,
after the sale in execution and transfer thereof, the property cannot
be
vindicated
from
the
bonafide
purchaser
who
had
taken
transfer
of
the
property merely on the ground that the judgment
has
been rescinded.
[19]
Applicants' contents that at the time of issuing of this application
, the property in question was still registered under
the applicants.
The property is now registered under Mr. Mooketsi.
EVALUATION
OF EVIDENCE
[20]
The
first issue
to be
determined
is
whether
the default
judgment
was obtained in an unlawful and or an improper manner. It is trite
that default judgment
is
granted
against a party who failed to defend the action. It is.
common
cause
that
the appl
i
cants
in
this
matter
failed to
either file notice to oppose or notice to defend.
The basis
for default is
founded
in
Fattis's
Engineering Co (Pty)
Ltd
v Vendick Spares (Pty) Ltd
[2]
where
it
was
held
that:
the
defendant is in default and that it is reasonable to suppose in the
majority of cases that the defendant is not disputing the
claim or
the amount.
[21]
Considering the matter before this court, it is common cause that the
applicants were aware of the notice of set down. On the
18th November
2014, they attended court as per set down, intending to negotiate
with the attorney handling the matter as they
were disputing the
amount claimed by the respondent but the matter was not appearing on
any of the court rolls for that week .
[22]
I find that even though the applicants failed to file their notice to
defend, their presence in court on that day of trial
and the efforts
they took to locate the court file or the court where their matter
ought to be adjudicated , in my opinion, proves
that they were there
to dispute the claim or the amount and that they were also interested
in the matter. What made it difficult
for them to access the court or
attorney who was dealing with their matter, is the fact that their
matter was not on the roll.
That was also conceded by the respondents
that the court roll particularly concerning the applicant's matter
was in a state of
a mess, the names of the applicants were not
written on the court roll and the case number was wrongly entered.
[23]
As a result, I find that it was going to be difficult for the
applicants to trace the correct court after the court roll being
rectified and be able to answer when their names were called out,
therefore, I accept that applicants have given a reasonable
explanation of their default. I am also persuaded that the Default
judgment was granted by the court
[24]
In determining the relief sought for condonation , this court has to
consider what instant application was brought about by
the
applicants. Applicants' contents that their instant application was
not brought in terms of Rule 31(2) nor Rule 42(1) of the
Uniform
Rules of the court but under common law.
[25]
Rule
32(2)(b)
provides
that
a
defendant
may within
20days
after
acquiring
knowledge
of such judgment
apply to
the court upon notice to the plaintiff to
set
aside
such
judgment
and the
court
may, upon
good
cause
shown, set
aside
the
default
judgment
on
such
terms
as
it
deems
fit.
The
principles
applicable
to
adjudicate
rescission
applications
based on
common
law are
trite
and
require no
exclusive
exposition.
I
n
Colyn v
Tiger
Food
Industries
Ltd t/a Meadow Feed Mills (Cape)
[3]
it
was held
that:
the
applicant must
show cause
why
the
remedy should
be
granted.
That entails giving
(a)
a
reasonable
explanation
of the default;
(b) showing
that the application is made bona
fide; (c) showing
that there is a bona fide defence to
the
plaintiff's
claim
which
prima
facie has some prospectus
success.
In
addition,
the
application
must
be
brought
within
20
days
affer
the
defendant has obtained knowledge of th
e
judgment.
[26]
The applicants became aware of the writ of execution accompanied by
the default judgment on 08th April 2015. On the 09th April
2015, the
applicant's previous attorneys drafted and prepared the application
for rescission of judgment and the respondent's attorneys
were served
on the same day.
[27]
I find that the applicants showed that the application was made bona
fide and further that it was brought under common law.
Within 20 days
after they had obtained knowledge of the judgment they brought the
application, therefore there was no need for
condonation. The
submission made by the respondent in terms of Rule 31(2) and Rule
42(1) is not the basis for the applicant's application
[28]
With the
issue of compliance with the court order dated 06 October 2020 this
court has
to determine whether the appl
i
cant's
omission to file their replying affidavit within the stipulated time
fram
e
,
should
render their version to stand
uncontested
and must be
accepted
but
the
court. The applicant acknowledge
the delay
and gave an explanation for the failure to submit timeously and the
respondent
was not
i
fied
of the sam
e
.
I
t
is
trite
l
aw
that the rules of court must be complied with. In
Charsley
v Avbob Bpk
[4]
it
was held
that:
"If
there is
a
material defect in any of the formalities required
by the rules of
court, the court
should
not
readily
grant
summary
judgment.
On the other
hand,
where
it is clear that the rules have substantially been complied
with
and there is no
prejudice to
the defendant,
the court should condone
a
failure
to
comply
with
the
technical
requirements of
the
rule"
In
Tran-African
Insurance Co Ltd v Maluleka
[5]
it was
held that:
"No
doubt
parties
and
their
legal
advisers
should
not
be
encouraged
to
become
slack
in
the
observance
of
the
rules,
which
are
of
an
important
element in the machinery
for the administration
of
justice.
But on the other hand
technical objections to less than perfect procedural steps would not
be permitte
d
,
to
interfere
with
the
expeditious and
if
possible,
inexpensive
decision
of
their
real
merits"
[29]
After evaluating the issue raised, I am satisfied that the respondent
was not prejudiced by the applicant's late filing of
their replying
affidavit. The respondent was notified prior about the delay caused
[30]
The final issue to be determined is the issue of non-joinder. The
matter of
Knox NO v Mofokeng
supra
that was quoted by
the respondents
that in the event of
a
valid judgment
being rescinded, after
the sale in execution
and
transfer thereof, the
property
cannot be vindicated from the bonafide
p
urchaser
who
had
taken
transfer
of
the property
merely
on
the
ground
that the
judgment
has
been rescinded.
The issue to be evaluated by this court is
whether or not the same principles are applicable in the present
matter. Whether or not
the applicants were owners of the property in
issue on 09 April 2015 and whether the new owner(s) has a direct and
substantial
interest in the relief sought but the applicant neglected
to join the registrar of deeds as a party to these proceedings.
[31]
According
to common law,
a party
seeking to raise a point of non-joinder
at
least place
argument which proves that the third party or parties not
joined to
the
proceedings do not only have
i
nterest
in the case, see
Judicial
Service Commission v Cape Bar Counci
l
[6]
but
that their
i
nterest
is (a)
direct
and (b)
substantial
in the issues to be adjudicated by the court
[32]
I am inclined to agree with the submissions made by the respondent
that the laid out in Knox supra, applies in the matter before
this
court. The applicant's submission is that at the time of issuing this
application, the property in question was still registered
under the
applicant's.
According
to (Annexure SOA4) Ngcephe Nomfuyo purchased the property on 24 April
2015 and it was registered under his name on 08
October 2015.
[33]
The application before this court is the application for rescission
of judgment granted on the 18th November 2014 whereby the
applicants
were still lawful owners of the property in question. Application for
rescission of judgment was issued on the 09th
April 2015 whereby the
applicants were still lawful owners of the property in issue. I,
therefore, find that there is no third
party who has a direct and
substantial interest in the issues to be adjudicated by the court.
[34]
Having assessed all the circumstances of this case; the circumstances
in which the default judgment was granted and the fact
that the
applicant brought the application for rescission within the
prescribed period, I am persuaded that the applicant has shown
or
establish the ground on a bona fide basis for rescission
[35]
In so far as costs are concerned, it should follow the result and be
awarded in favor of the applicants.
Consequently,
the following order is made:
[35.1]
The application for rescission of judgment is granted
[35.2]
The defendant is ordered to pay costs.
K
J MOGALE
ACTING
JUDGE OF THE
GAUTENG
DIVISION,
PRETORA
Electronically
submitted.
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
parties/their legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The
date for
hand-down is deemed to be 29 March 2021.
Date
of hearing: The matter was heard by way of video conferencing or
otherwise, the matter may be determined accordingly. The matter
was
set down for a court date of 15 March 2021.
Date
of judgment:
29 March 2021
Heard
on: 15 March 2021
For
the Applicants : Adv WB Ndlovu
Instructed
by: Peter Zwane Attorneys
For
the Respondent : Adv DJ van Heerden
Instructed
by: Hannes Gouws & Partners Inc
Date
of Judgment: 29 February 2021
[1]
2013 (4) SA 46
(GSJ)
[2]
1962 (1) SA 736
(T) at 739B-C
[3]
2003 (6) SA 1
(SCA)
(2003) 2 ALL SA 113
at para 11
[4]
1
975(
1
)
SA 891(E) 893 (C_D)
[5]
1
956(2)
SA 273 (A)
[6]
2013(1) SA
1
70
(SCA) at par
1
76
1
-
1
77A