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[2021] ZAGPJHC 887
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Tshosa v Industrial Development Corporation of South Africa and Others (46212/2018) [2021] ZAGPJHC 887 (14 September 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO: 46212/2018
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
In the matter between:
TSHOSA
JOPA
MORAKA
Applicant
And
INDUSTRIAL DEVELOPMENT
CORPORATION OF
SOUTH
AFRICA
First Respondent
SHERIFF
HALFWAY
HOUSE
Second Respondent
NAME
PLATE CENTER SIGNS (PTY) LTD
Third Respondent
JUDGMENT
MATOJANE J
[1]
The applicant has applied for an order rescinding
or varying the "draft order" dated 25 February 2019 granted
in favour
of the first respondent in terms of "Rule 42
42(1)(b)(c )". The applicant further seeks relief in the form of
"restraining"
the sheriff from implementing the "draft
order" issued under this case number. The applicant also seeks
various declaratory
orders that are irrelevant to the relief that he
seeks.
[2]
The applicant is the director of the third
respondent and is not a party to these proceedings.
[3]
The first respondent had sought and obtained an
order perfecting its security held against Name Plate Center Signs
(Pty) Ltd ("Name
Plate") under a Notarial General Covering
Bond in the urgent Court on 25 February 2019.
[4]
The first respondent instructed the sheriff to
execute the perfection order at 61 Kyalami-Glen Estate, Midrand
address which is
the chosen
domicilium
and business address of Name plate. The order could not be executed
as it was the applicant's residential address. The applicant
advised
the first respondent as to the correct business address of the Name
Plate and provided the first respondent with the keys
to the
premises.
[5]
On 16 August 2019, the sheriff executed against
Name Plate's movable assets at its business premises. The attached
goods were sold
on auction, and the proceeds were applied towards the
partial discharge of the third respondent's debt to the first
respondent.
[6]
The applicant's complaint is that he and his
family were being harassed by the first respondent's alleged attempt
to execute against
his personal property. He avers that despite
advising the first respondent of the correct address of Name Plate,
the first respondent
has not varied the court order it obtained to
reflect the correct business address of the third respondent. He
alleges that he
is placed under the risk of his property being
attached without notice.
[7]
The applicant for rescission is ill-conceived and
misguided and bears no prospect of success as the applicant is not a
party to
the perfection order that he seeksto have rescinded. Name
Plate has not taken steps to have the perfection order set
aside. The application falls to be dismissed on
this ground alone.
Condonation of the
late filing of this application
[8]
The
Constitutional Court, in the matter of
eThekwini
Municipality and
Ingonyama
Trust,
[1]
said the following:
"As
stated earlier, two factors assume importance in determining whether
condonation should be
granted in this case.
They are the explanation furnished for the delay and prospects of
success. In a proper case, these factors
may tip the scale against
the granting of condonation. In a case where the delay is not a short
one, the explanation given must
not only be satisfied but must also
cover the entire period of the delay."
[9]
The explanation proffered by the applicant for the
late filing of the application for rescission is that since the order
was granted
on 25 February 2019, he informally tried to persuade the
first respondent to amend the said court order. He alleges that he
went
to Court on 26 June 2019 to verify whether the first respondent
had varied the court order so that it should reflect the correct
address of the Name Plate. This was not done.
[10]
On 23 July 2019, he brought an application for the
rescission of the above judgment and was thereafter invited to a
meeting with
the first respondent where it was agreed that the first
respondent would never serve legal documents meant for Name Plate at
his
residence. He alleges that the first respondent has continued to
serve documents at his residence. He also alleges that there were
intervening circumstances as a result of the COVID 19 pandemic.
[11]
The
applicant has failed to give a detailed and accurate account of the
causes of the delay in bringing the application to enable
the Court
to understand the reasons and to assess his motives and conduct
[2]
.
He fails to give the date, duration and extend of any obstacle on
which he relies
[3]
. There is no
explanation whatsoever for the 22 months delay.
[12]
He admits that he brought a similar application on
23 July 2019 and did not explain why he never pursued that
application from 23
July 2019 until December 2020 when he brought the
current application; the matter is
lis
alibi pendens
and constitutes abuse.
[13]
The applicant has not made out a good cause for
condonation for the late filing of his application. In any event, he
could not have
the order set aside as he was not a party to the
perfection order. The application for condonation falls to be
dismissed on this
ground alone.
Rescission of a
judgment in terms of Rule 42
[14]
Rule
42
[4]
is confined by its wording
and context to the rescission or variation of an ambiguous order or
an order containing a patent error
or omission (Rule 42(1)(b)); order
resulting from a mistake common to the parties (Rule 42(1)(c)); or
'an order erroneously sought
or erroneously granted in the absence of
a party affected thereby' (Rule 42(1)(a). In the present case, the
application was, as
far as the Rule is concerned, based on Rule
42(1)(c ). The crisp question is whether the judgment contains a
patent error or omission
and that it was the result of the mistake
common to the parties.
[15]
The applicant's reliance on Rule 42(1)(b) as the
basis for rescission seems to be that the perfection order was served
at his residential
address, which was no longer a place of business
of the third respondent at the time of service of the order. This
reliance is
misplaced as the 61 Kyalami-Glen Estate address is listed
in the Notarial Covering Bond as the
domicilium
citandi and executandi
of Name Plate.
The first respondent was accordingly entitled to rely on this
address.
[16]
The applicant has failed to set out any grounds as
to why he alleges that the order was granted as a result of a mistake
common
to the parties and has not pointed to any errors, ambiguity or
the like justifying the order being set aside.
[17]
His reliance on Rule 42(1)(c ) is also misplaced.
This Rule is of the application when a party affected by an order
contends that
order ought to be rescinded because it was granted as a
result of a mistake common to the parties. The applicant, in his
capacity,
cannot argue on behalf of Name Plate that it was labouring
under a mistake when the order was granted. He does not purport to
act
on behalf of Name Plate in this rescission application. It is not
a mistake to have the order served at the chosen
domicilium
address.
[18]
Rule 42(1)(a) is a procedural step designed to
correct expeditiously an obviously wrong judgment or order. A
judgment would be rescinded
if the applicant can establish an error
in the proceedings. There is nothing erroneous about the service of
the order at the chosen
domicilium
address. This Rule does not assist the applicant.
Costs
[19]
This fatally defective application for rescission
of the order was pursued 22 months late in the face of a similar
pending application.
There is no explanation for the lengthy delay in
bringing the application. The party affected by the order, Name
Plate, did not
take any steps to have the order rescinded. The order
has already been executed, and some of the property of Name Plate
have already
been sold in execution.
[20]
This application is an abuse of the court process
and warrant a punitive costs order.
In the result I make the
following order.
1.
The application is dismissed
2.
The applicant is to pay costs on attorney and
client scale
K E MATOJANE
JUDGE OF THE HIGH
COURT,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances
Attorney
for Applicant:
KD Magabane
Counsel
for First Respondent:
Advocate S Freese
Attorney
for First Respondent:
Mngadi Attorneys Inc.
Hearing
date
03 August 2021
Date
of judgment:
14 September 2021
[1]
Case
No. [2013] ZACC 7
[2]
Uitenhage
Transitional Local Council v SARS 2004(1)SA 292 (SCA) par 6
[3]
Van
Wyk v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477E-G
[4]
Rule
42 of the Uniform Rules of Court provides The court may, In addition
to any other powers it may have, mero motu or upon the
application
of any party affected, rescind or vary:
(a) An order or Judgment
erroneously sought or erroneously granted in the absence of any
party affected thereby;
(b) An order or Judgment
in which there is ambiguity, or a patent error or omission;
(c) An order or Judgment
granted as a result of a mistake common to both parties.