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[2021] ZAGPJHC 477
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Motloung v Meyersdal Nature Estate Homeowners Association (NPC) (40411/2016) [2021] ZAGPJHC 477 (28 September 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 40411/2016
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
28.09.2021
In
the matter between:
ISAAC
MOHLOKI
MOTLOUNG
Applicant
and
MEYERSDAL
NATURE ESTATE
HOMEOWNERS
ASSOCIATION
(NPC)
Respondent
JUDGMENT
CRUTCHFIELD
AJ:
[1]
This opposed application came before me on
27 July 2021. The applicant, Mohloki Isaac Motloung, claimed the
rescission of a judgment
taken by default by the respondent,
Meyersdal Nature Estate Home Owners Association (NPC), against the
applicant for payment of
R225 924.34, on 20 January 2017
under case number 2016/40411 (‘default judgment’). The
respondent was the
plaintiff in the action proceedings.
[2]
In addition, the applicant sought
condonation for the late filing of the replying affidavit and costs
de bonis propriis
against
the respondent’s attorney on the basis of alleged malicious
conduct amounting to abuse of the process of this Court.
[3]
The respondent claimed the dismissal of the
application for condonation with costs and the dismissal of the
rescission application
with costs on an attorney and client scale.
[4]
The application for rescission was
brought in terms of Rule 42 of the Uniform Rules of Court. The
application was served on the
respondent’s attorneys on
28 September 2017.
[5]
The respondent contended that the
application was brought at a significantly late stage after the
existence of the judgment came
to the applicant’s attention and
that the applicant failed to set out a
bona
fide
defence to the action.
[6]
The applicant and his wife, Annah Mamokale
Motloung, to whom the applicant is married in community of property,
are the owners of
a vacant stand, Erf [....], Ext 9, Nature Estate,
Meyersdal, having street address [....] T[....] Street, Nature
Estate, Meyersdal
(‘Erf’). The Erf is situated inside a
communal residential estate, Meyersdal Nature Estate, of which the
respondent
is the controlling and managing agent.
[7]
The respondent, prior to the events leading
up to the commencement of this application, issued summons for
payment of R57 157.49
against the respondent in the Palm Ridge
Magistrates’ Court under case number 3341/2014 on 24 April
2014 (the ‘Palm
Ridge action’). The respondent procured
service of the summons in the Palm Ridge action on the applicant’s
chosen
domicilium citandi et executandi
,
being the Erf, a vacant stand. Once the
dies
induciae
for delivery of a notice of
intention to defend had expired, the respondent sought judgment by
default against the applicant.
[8]
The summons in the Palm Ridge action came
to the applicant’s attention after the respondent had applied
for default judgment.
Notwithstanding the applicant’s delivery
of a notice of intention to defend outside of the permitted time
period, the respondent
obtained default judgment against the
applicant and his wife on 13 August 2014.
[9]
The applicant and his wife subsequently
launched an application for rescission of the default judgment that
was granted on 12 August
2015 together with costs
de
bonis propriis
against the respondent’s
attorney.
[10]
Subsequently, the quantum in the Palm Ridge
action was increased by agreement to R134 340.30 under a consent
to jurisdiction
of the District Court given by the applicant.
Thereafter, the proceedings were held in abeyance by agreement
between the parties
subject to certain conditions.
[11]
On 25 August 2017, the applicant
became aware of a writ of attachment issued under case number
40411/2016 in this Court, when
the Sheriff arrived at the applicant’s
home with the writ. The applicant attempted to procure copies of the
relevant documents
from the court file but to no avail. Thereafter,
on 11 September 2017, the applicant obtained copies of the papers
from the respondent’s
attorney.
[12]
The applicant gleaned that service of the
summons under case number 40411/2016, occurred on 28 November
2016 by service on
the Erf, the applicant’s chosen
domicilium
citandi et executandi
(the ‘
domicilium
address’).
Judgment by default
was granted against the applicant on 11 January 2017.
[13]
The applicant argued that he had no
knowledge of the judgment prior to the Sheriff arriving at his home
with the writ and the applicant
obtaining copies of the papers from
the respondent’s attorney. Service of the summons at the
applicant’s
domicilium address
did
not come to the applicant’s attention.
[14]
One of the arguments raised by the
applicant at the hearing was that service ought not to have taken
place at his chosen
domicilium
address
but at the address that he nominated for the delivery of all process
in the Palm Ridge action. I deal with that argument
hereunder.
[15]
Furthermore,
the applicant contended that service on his
domicilium
address was bad service given that the respondent knew, regard being
had to the proceedings in the Palm Ridge action, that it was
improbable that service at the applicant’s
domicilium
address would come to the applicant’s attention during the time
period available to him to deliver a notice of intention
to defend
the action. The applicant relied in this regard on the judgment of
Absa
Bank Limited v Mare & Others
.
[1]
[16]
Effective service, being the essential
purpose of Rule 4 of the Uniform Rules of Court, requires that the
process so served be brought
or come to the attention of the party
intended to receive such process.
[17]
The
fact that a party nominates a
domicilium
address
does not preclude a plaintiff from taking such steps as are
reasonably necessary to ensure that effective service occurs,
that
the summons comes to the attention of the intended defendant.
[2]
[18]
Furthermore,
the choice of a
domicilium
address
by a defendant does not preclude or prevent a plaintiff from invoking
an alternate method provided for in terms of Rule 4,
[3]
if use of such alternate method is necessary in order to achieve
effective service on the defendant.
[19]
The circumstances in this matter are
somewhat unusual given the proceedings in the Palm Ridge action in
terms of which service at
the applicant’s
domicilium
address was not effective and the
summons did not come to the applicant’s notice timeously.
[20]
Hence, the respondent’s attorney knew
or ought to have realised that there was a reasonable likelihood that
service of the
summons under case number 40411/2016 at the
applicant’s
domicilium
address,
would not come to the applicant’s attention timeously and would
not constitute effective service.
[21]
Notwithstanding, the respondent persisted
with service at the applicant’s
domicilium
address, which did not come to the
applicant’s notice prior to default judgment being granted.
[22]
In the particular circumstances of this
matter, the respondent ought to have taken steps additional to
service on the applicant’s
domicilium
address, or, invoked alternate methods
of service in terms of Rule 4 in order to ensure effective
service of the summons on
the applicant. The respondent was in
possession of the applicant’s residential address as well as
the address from which
the applicant practises as an attorney but
failed to make use of them for purposes of service of the summons.
[23]
Whilst I accept that service on a
domicilium
address
in circumstances where there is a reasonable probability that such
service will come to the attention of the defendant,
is good and
valid service, the particular circumstances of this matter take it
outside of that general principle.
[24]
Notwithstanding, the applicant’s
submission that the respondent ought to have served the summons on
the address chosen by
him for the delivery of process in the Palm
Ridge action holds no merit. That submission, if given effect to,
would have resulted
in uncertainty and confusion and could have
served potentially as a basis for a rescission application. The
chosen address for
service of process in the Palm Ridge action was
limited to service in that matter only.
[25]
The provision of a
domicilium
address by the applicant to the
respondent did not prevent or preclude the respondent from serving
the summons on an alternate address
in terms of Rule 4, if such
service was necessary in order to obtain effective service. In my
view, the respondent ought to have
taken such additional steps in the
light of the circumstances of this matter.
[26]
In
Mare
,
[4]
Kubushi AJ, in the court
a
quo
,
stated:
“ … ‘
even
though uniform rule 4(1)(a)(iv) allows for service at a chosen
domicilium citandi
by
delivering or leaving a copy of the process at such address the rule
does not, …, preclude strict compliance with the
rules
governing proper and effective service required by the rule …
By simply leaving the process to be served at the
domicilium
citandi
, … without taking the
necessary precautions that same will come to the notice of the
defendant, does not constitute effect
service to me’.”
[27]
Whilst the
Mare
judgment dealt with service in respect of the execution, sale and
transfer of ownership of a residential property, the requirement
of
effective service on a defendant in terms of Uniform Rule 4 applies
equally to this matter.
[28]
As regards the alleged lateness of the
application itself, the applicant obtained knowledge of the content
of the court file from
the respondent’s attorneys on
11 September 2017. The applicant issued this application on
28 September 2017, well
within a reasonable period of time as
required by Rule 42(1).
[29]
The respondent argued that the applicant
did not allege a defence to the action. Rescission of the judgment,
however, was sought
on the basis that the judgment was granted
erroneously pursuant to the absence of proper service of the summons
on the applicant.
A defence to an action in which a judgment was
erroneously granted is not a prerequisite to the rescission of the
judgment.
[30]
In respect of the condonation for the late
filing of the replying affidavit, the document placed before me was
not commissioned
and was withdrawn by the applicant at the hearing.
[31]
In the light of that stated above, I am of
the view that the applicant is entitled to rescission of the default
judgment granted
under case number 40411/2016.
[32]
There is no reason why the costs of this
application should not follow the merits of the outcome on a party
and party scale.
[33]
By virtue of the aforementioned, I grant
the following order:
1.
The judgment granted by default on
20 January 2017 under case number 2016/40411 is rescinded.
2.
The applicant is ordered to deliver a
notice of intention to defend the action under case number 2016/40411
within ten (10) days
of delivery of this judgment.
3.
The respondent is ordered to pay the costs
of this application.
A
A CRUTCHFIELD SC
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Acting 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 of
the judgment is deemed to be 28 September 2021.
ATTORNEY
FOR THE APPLICANT:
Mr Motloung (in person).
INSTRUCTED
BY:
Maluleke Seriti Makume Matlala Inc (Germiston)
COUNSEL
FOR THE RESPONDENT: Mr J W
Kloek.
INSTRUCTED
BY:
S Brown Attorneys Inc.
DATE
OF THE HEARING:
27 July 2021.
DATE
OF JUDGMENT:
28 September 2021.
[1]
Absa
Bank Limited v Mare & Others
2021
(2) SA 151
(GP) (‘
Mare
’).
[2]
Botha
v Measroch
1916
TPD 142
at 148;
Grobler
v Schmahman Bros
1916
TPD 218
at 222-3.
[3]
Sandton
Square Finance (Pty) Ltd v Biagi, Bertola and Vasco
1997
(1) SA 258
(W) at 260C.
[4]
Mare
note 1 above
para
12.