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[2021] ZAGPJHC 445
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Nale Trading CC and Another v Freyssinet Posten (Pty) Ltd In re: Freyssinet Posten (Pty) Ltd v Nale Trading (Pty) Ltd and Another (26992/2019) [2021] ZAGPJHC 445 (22 September 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 26992/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
YES
20/09/2021
In
the matter between:
NALE
TRADING CC
First Applicant
THINGAHANGWI
EDWIN MUTHIGE
Second Applicant
and
FREYSSINET
POSTEN (PTY)
LTD
Respondent
In
re:
FREYSSINET
POSTEN (PTY)
LTD
Applicant
and
NALE
TRADING (PTY)
LTD
First Respondent
THINGAHANGWI
EDWIN MUTHIGE
Second
Respondent
JUDGMENT:
MINNAAR
AJ:
1.
The applicants are seeking an order rescinding the
order granted by this court (Siwendu J) on 5 September 2019. Further
ancillary
relief is also prayed for.
2.
Applicants have failed to specify whether the
application is brought in terms of the provisions of Rule 31(2)(b),
Rule 42(1) and/or
the common law. In the applicants’ heads of
argument, the wording of Rule 42(1)(a) is quoted: this does not
assist this court
in any way as no further reference or submissions
are made by the applicant as to how, and why, the provisions of Rule
42(1)(a)
would apply. On a reading of the founding affidavit, no
mention is made, and no evidence advanced, that the granted order was
erroneously
sought and/or granted and as such it is evident that Rule
42(1)(a) does not apply. The submission in paragraph 2 of the
applicant’s
heads of argument is thus misleading and improper.
I pause to mention that more care should be taken when submitting
heads of argument
to court: it contains the written submissions
relied on by a party to assist the court in understanding what the
case is for it
to adjudicate on. To include irrelevant, and wrong,
legal principles in the heads of argument is of no assistance and is
frowned
upon by this court. Counsel (in this instance it would appear
that the attorney was responsible for the heads of argument) has a
duty to court to be diligent and utmost honest in this regard.
3.
In support of their case the applicants refer to a
defence to the respondent’s claim and attempts to make out a
case that
they were not in wilful default in defending the action.
Premised on these allegations this court accepts that it is the
applicants’
case that this application is premised on the
provisions of Rule 31(2)(b) of the Uniform Rules of Court.
4.
The respondent (as applicant in the main
application) issued an application against the applicants (as
respondents in the main application)
to enforce payment of all
outstanding debt owed to the respondent by the first applicant in
terms of an acknowledgement of debt
(“the AOD”) entered
into between the respondent and the first applicant and a subsequent
deed of suretyship entered
into by the second applicant.
5.
The AOD was entered into on 27 March 2019. In
terms thereof the first applicant, amongst other, irrevocably
acknowledged that it
is indebted to the respondent. First applicant
undertook to pay the respondent monthly instalments towards the
settlement of the
debt until such time as the debt would be settled.
First instalment was due on 25 May 2019 in the amount of R200 000.00
and
thereafter monthly payment in the amount of R200 000.00
would be made to settle the debt. It was agreed that first applicant
will settle the debt on or before 28 July 2020.
6.
On 27 March 2019 the second applicant entered into
the deed of suretyship for the due and punctual payments in the
amounts due by
the first applicant to the respondent arising from the
AOD.
7.
First applicant failed to make the first payment
in the amount of R200 000.00 which was due on 25 May 2019.
Following a letter
of demand, first applicant made payment in the
amount of R100 000.00. No further payments were made.
8.
The main application was served on the applicants,
by affixing same at Number [….] M[....] Street, Lindhaven,
Roodepoort
on 5 August 2019. According to the return of service this
address is the registered address of the first applicant. This
address
was also the chosen address in terms of the AOD and the deed
of suretyship. In the founding affidavit this address is confirmed
as
the address at which the applicants are conducting business from.
9.
I pause to state that the notice of motion in the
main application clearly indicated that the application will be set
down for hearing
on 5 September 2019.
10.
The second applicant, as deponent to the founding
affidavit, states that he has not been personally served with the
main application
as service was by way of affixing.
11.
In terms of the provisions of Rule 31(2)(b) a
defendant may within 20 days after he has knowledge of such judgment
apply to 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 to it seems meet.
12.
In
Grant
v Plumbers (Pty) Ltd
[1]
the
requirements for an application for rescission under this subrule
have been stated to be as follows:
12.1 The applicant
must give a reasonable explanation of his default. If it appears that
his default was wilful or that it
was due to gross negligence the
court should not come to his assistance;
12.2 The
application must be
bona fide
and not made with the intention
of merely delaying the plaintiff’s claim;
12.3 The applicant
must show that he has a
bona fide
defence to the plaintiff’s
claim. It is sufficient if he makes out a
prima facie
defence
in the sense of setting out averments which, if established at trial,
would entitle him to the relief asked for. He nee
not deal fully with
the merits of the case and produce evidence that the probabilities
are actually in has favour.
13.
This
subrule does not require that the conduct of the applicant for
rescission of a default judgment be not wilful, but it has been
held
that it is clearly an ingredient of the good cause to be shown that
the element of wilfulness is absent.
[2]
Hence the element of wilfulness is one of the factors to be
considered in deciding whether or not an applicant has shown good
cause.
14.
While
wilful default on the part of the applicant is not a substantive or
compulsory ground for refusal of an application for rescission,
the
reasons for the applicant’s default remain an essential
ingredient of the good cause to be shown.
[3]
15.
Before
a person can be said to be in wilful default, the following elements
must be shown:
[4]
15.1 Knowledge that
the action is being brought against him or her;
15.2 A deliberate
refraining from entering appearance, though free to do so; and
15.3 A certain
mental attitude towards the consequences of the default.
16.
Save to decry the lack of personal service the
applicants blatantly failed to inform this court that on 4 September
2019 an email
was sent from Denga Incorporated, on behalf of the
applicants, to the respondent’s attorney. In terms of this
email reference
was made to the main application being set down for
hearing on 5 September 2019. It was further noted in this email that
the applicants
have brought the main application to Denga
Incorporated for assistance and a request was made that the main
application be postponed
for a period of a month to enable the
applicants to commence with the undertaking to repay the debt.
17.
From this email it is evident that the applicants
clearly received the main application and for them to aver otherwise
is dishonest
and misleading. It follows that the applicants were
aware of the main application and that they have deliberately
refrained from
entering an appearance to defend same. Instead they
sought the indulgence of a postponement to get their house in order.
It is
thus clear to this court that the applicants were in wilful
default in defending the main application.
18.
Regarding their
bona
fide
defence to the main application
the applicants are attempting to blame Denga Incorporated by stating
that they caused the applicants
to enter the AOD and the deed of
suretyship under duress in light of pending liquidation proceedings.
Much reliance is also placed
on the misjoinder of an entity by the
name of Splish Splash Construction to the AOD. According to the
applicants the first applicant
and Splish Splash Construction was a
join venture when the initial contract with the respondent was
entered into and as such Splish
Splash Construction had to be a party
to the AOD.
19.
The AOD is clear in its terms that same was
entered into between the first applicant and the respondent. No
mention is made of any
involvement of Splish Splash Construction.
Since the cause of action in the main application was premised on the
breach of the
AOD, the involvement of Splish Splash Construction to
negotiations and agreements prior to the conclusion of the AOD is if
no influence
herein.
20.
What is important, is that the first applicant
made payment in the amount of R100 000.00 subsequent to its
breach in terms
of the AOD and following a letter of demand. In
making this payment the first applicant clearly aligned itself to the
terms and
obligations of the AOD. Prior to the issuing of this
rescission application no mention was made of any irregularities in
terms
of the AOD and as such the applicants’ attempt to now
cast aspersion on the conditions of same raises serious concerns as
to their
bona fides
herein.
21.
In the email from Denga Incorporated it was
confirmed that the first applicant has not been able to honour its
commitments and an
undertaking was given to repay the debt. It is
accepted that Denga Incorporated acted upon the instructions of the
applicants and
as such it is improbable, of not totally impossible,
that this undertaking and the request for a postponement was not the
clear
instructions of the applicants.
22.
Considering the above, the mudding of the water by
the applicants takes this matter no further. There is just no
bona
fide
defence to the respondent’s
claim in the main application.
23.
Applicants attempt to place the blame on Denga
Incorporated for entering into the AOD does not assist the applicants
in any way
as first applicant subsequent made partial performance and
sought an indulgence to honour its commitments.
24.
Rule
31 imposes on the applicants the burden of actually proving, as
opposed to merely alleging, ‘good cause’ for a
rescission
[5]
.In
Silber
v Ozen Wholesalers (Pty) Ltd
[6]
the Appellate Division, as it then was, held that the requirement of
‘good cause’ cannot be held to be satisfied unless
there
is evidence not only of the existence of a substantial defence but,
in addition, the
bona
fide
presently
held desire on the part of the applicants to actually to raise the
defence concerned in the event of the judgment being
rescinded.
In
casu
the
applicants have failed to meet this requirement and it follows that
the application cannot succeed.
25.
Respondent sought a dismissal of the application
with costs on the scale as between attorney and client. The
Applicants lack of
bona fides
and their election to withhold crucial information
from this court would justify such a punitive costs order.
ORDER:
In
the premises the following order is made an order of court:
1.
The application for rescission is dismissed;
2.
The applicants, jointly and severally the one paying the other to be
absolved, to pay the costs of this application on the scale
as
between attorney and client.
J
MINNAAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was handed electronically by uploading same on CaseLines and
by circulation to the parties’ legal representatives
by e-mail.
The date and time for hand-down is deemed to be 10h00 on 22 September
2021.
Appearances:
Applicant’s
Counsel:
Mr Leshabana
Applicant’s
Attorney:
CHSM Incorporated Attorneys
Respondent’s
Counsel: Adv M Louw
Respondent’s
Attorney: Barnard’s Incorporate
Attorneys
Date
of hearing:
17 August
2021
Date
of judgment:
22 September 2021
[1]
1949
(2) SA 298
(E) at 476-7
[2]
Maujean
t/a Audio Video Agencies v Standard Bank of SA Ltd
1994
(3) SA 801
(C) at 803J
[3]
Harris
v ABSA Bank Ltd t/a Volkskas
2006
(4) SA 527
(T) at 529E-F
[4]
Erasmus
Superior Court Practice on B1-202
[5]
De
Vos v Cooper & Ferreira
1999
(4) SA 1290
(SCA) at 1304H.
[6]
1954
(2) SA 345
(A) at 352 G - H