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[2020] ZALMPPHC 57
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KTS General Traders CC v Mapheto Business Services CC (2028/2017) [2020] ZALMPPHC 57 (28 July 2020)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 2028/2017
In
the matter between:
KTS
GENERAL TRADERS CC
APPLICANT
AND
MAPHETO
BUSINESS SERVICES CC
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The respondent has instituted action against the applicant. On 17
th
April 2017 summons were served at the applicant’s business
place on Mr Lucas Thobakgale an employee of the applicant. The
applicant failed to enter notice of appearance to defend. The
respondent proceeded to apply for a default judgment and served the
notice of set down of the default judgment on 1
st
December
2017 on France Thobakgale an employee of the applicant. The
application for default judgment was set down for the 18
th
February 2018. The applicant failed to attend court and the
respondent obtained a default judgment against applicant.
[2]
The respondent proceeded to issue a writ of execution. On 4
th
June 2018 the sheriff of court visited the applicant’s premises
and attached some of the movable assets and placed them under
judicial attachment. The applicant alleges that it became aware on
4
th
June 2018 that a default judgment has been taken
against it.
[3]
The applicant avers that on receipt of the writ of execution, it
handed it to his
attorney Mr Coetzer with the purpose of bringing the
application for rescission of judgement as his administrative staff
did not
bring the summons and set down of the default judgment to its
attention. It also wanted Mr Coetzer to bring a counterclaim against
the respondent. Mr Coetzer could not immediately prepare the papers
for rescission as he was still waiting for information with
regard to
the counterclaim from its (applicant) staff members. Its staff
members did not provide Mr Coetzer with the required
information and
also failed to inform it (applicant) that they did not comply with
its request. The applicant also failed
to follow up with Mr
Coetzer regarding the progress of the rescission application. It only
realised during the second week of September
2019 that the
application for rescission was never brought. That is when it took
the necessary information to Mr Coetzer to initiate
the rescission
application.
[4]
The applicant has now brought a rescission application and also
condonation application
for late filing of its rescission
application. The rescission application is brought in terms of Rule
31(2) (b) of the Uniform
Rules of Court (the Rules). The respondent
is opposing the applicant’s application. The applicant avers
that the application
was brought out of the prescribed time period as
a result of an oversight from its office.
[5]
With regard to the
bona fide
defence, the applicant avers that
the respondent has partially completed the work as set out in his
appointment letter and thereafter
abandoned the balance of the work.
It is the applicant’s contention that the respondent was not
entitled to any payment as
the work was not completed. The applicant
further avers that the respondent has rented its TLB at the rate of
R3600-00 per day
and has refused to return it. According to the
applicant, the current value of the TLB is R1 million, and the
outstanding
rental payment for the TLB for 33 days amounted to
R118 800-00. It is therefore the applicant’s contention
that it is
having a counterclaim against the respondent that is
exceeding the amount that the respondent is claiming.
[6]
The respondent in its answering affidavit has raised two points
in
limine
which it did not pursue when the application was
argued. In relation to the applicant’s condonation application
,
the respondent argued that the applicant became aware of the default
judgment on 4th June 2018, but has failed to reveal the reason
why it
was under the impression that Coetzer & de Beer were bringing an
application for rescission. It is the respondent’s
contention that the applicant has failed to attach the confirmatory
affidavit by the administrative staff who had failed to give
Coetzer
& de Beer the necessary information.
[7]
With regard to the merits of the application, the respondent argued
that the applicant
has failed to give details of the work that was
allegedly unsatisfactory. It is the respondent’s contention
that the work
that was done by the respondent was approved by the
Municipality and further that the Municipality had paid the applicant
in full
for the completed task. With regard to the alleged
rental of the TLB, the respondent submitted that the applicant has
failed
to attach the lease agreement, and that if indeed the
respondent owed it, the applicant would not have waited for over
three years
without making a move to repossess the TLB or demand
payment for outstanding rental.
[8]
The applicant has brought its rescission application in terms of Rule
31(2)(b) which
read as follows:
“
A defendant
may within 20 days after acquiring 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 it deems fit.”
[9]
The applicant became aware of the default judgment on 4
th
June 2018 when the sheriff of the court made judicial attachment. The
applicant launched its rescission application on the 4
th
October 2019 out of the stipulated 20 days period. The applicant has
therefore also brought a condonation application for the late
filing
of its rescission application.
[10]
It is trite that the factors that the court must consider in
exercising its discretion to grant
condonation includes the degree of
lateness; explanation for the delay; prospects of success; degree of
non-compliance with the
rules; the importance of the case; the
respondent’s interest in finality of the judgment; convenience
of the court and the
avoidance of unnecessary delay in the
administration of justice
.
(See Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Company Ltd and Others
[1]
)
[11]
The applicant brought its rescission application 16 months after it
became aware of the default
judgment. In my view, the applicant’s
application is extremely late. A strong explanation can cure the
excessive lateness.
[12]
In its explanation for the delay, the applicant blames its
administrative staff who failed to give Mr Coetzer
information about
the counterclaim it wanted to bring against the respondent. The
applicant further alleges that it was under the
impression that the
rescission application has been brought. There is a lack of
information about where this alleged impression
was based. Firstly,
the applicant has failed to disclose the name of the alleged
administrative staff who was supposed to give
information to Mr
Coetzer. Secondly, for a rescission application to be activated, a
founding affidavit must be signed. If the
applicant was under the
impression that the rescission application has been brought, it has
failed to disclose the name of the
person who had signed or was
supposed to sign the founding affidavit of the rescission application
and when it was allegedly signed.
Thirdly, the applicant in its
founding affidavit alleges that Mr Coetzer was waiting for
information with regard to the counterclaim.
Mr Coetzer is a legal
person who knows the time frames within which the application should
be made. The confirmatory affidavit
of Mr Coetzer does not deal with
the issue as to what he did when he realised that the time period
within which to make a rescission
was about to expire. Fourthly, the
applicant has failed to attach a confirmatory affidavit of the
administrative staff to conform
its version. Fifthly, the applicant
merely alleges that it realised during the second week of September
2019 that the rescission
application was never brought. However, the
applicant does not state the circumstances that made it to realise
that the application
was never brought.
[13]
In
Uitenhage
Transitional Local Council v SA Revenue Services
[2]
Hefer JA said:
“…
condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects
must be
furnished so as to enable the Court to understand clearly the reasons
and to assess the responsibility. It must be obvious
that, if the
non-compliance is time-related then the date, duration and extent of
any obstacle on which reliance is placed must
be spelled out.”
[14]
The applicant’s explanation for the delay is very scanty
as it lacks full details and accurate
account of what exactly
happened between the period 4
th
June 2018 and 4
th
October 2019. Counsel for the applicant before this court correctly
conceded that full details were not given in the applicant’s
founding affidavit. In my view, the applicant’s explanation for
delay is unsatisfactory.
[15]
With regard to the prospects of successes, the applicant had
merely stated that the respondent did
not complete the work to its
satisfaction and therefore cannot claim payment. The respondent in
its answering affidavit has denied
this allegation and stated that
the task was completed and the Municipality had approved the work it
had done, and had also paid
the applicant in full for the task
completed. The applicant did not file a replying affidavit to refute
these allegations and they
therefore remained unchallenged. If indeed
the Municipality had certified the work done by the respondent to be
satisfactory, and
had also paid the applicant in full for the task
that the respondent had completed, what is the reason for withholding
the respondent’s
payment? Those reasons must be clearly spelt
out in order to enlighten the court. However, the applicant has
failed to do so. Since
the respondent’s version was not
challenged, that makes the applicant’s prospect of success to
be weak, if not non-existence.
[16]
In my view, the applicant has failed to meet the requirements for the
granting of condonation.
The applicant’s condonation
application therefore stands to fail. There will therefore be no need
to deal with the merits
of the rescission application.
[17]
In the results I make the following order:
17.1 The applicant’s
condonation application is dismissed with costs on party and party
scale.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCE:
COUNSEL
FOR APPLICANT : ADV JP MORTON
INSTRUCTED
BY :
COETZER & DE BEER ATTORNEYS
COUNSEL
FOR RESPONDENT : MR J MOOLMAN
INSTRUCTED
BY
: STEWART MARITZ BASSON INC
DATE
OF HEARING
: 25
th
JUNE 2020
DATE
OF JUDGEMENT
: 28
th
July 2020
[1]
[2013] 2 All 251 (SCA) at para 11
[2]
2004 (1) SA 292
(SCA) at para I-J