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[2020] ZAGPPHC 67
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Douglas Bennet Incorporated and Another v PC Diedericks & Associates (65191/2019) [2020] ZAGPPHC 67 (10 February 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
{GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: 65191/2019
27/2/2020
In
the matter between:
DOUGLAS
BENNETT INCORPORATED
FIRST APPLICANT
(First
Defendant)
DOUGLAS
LANLEY BENNETT
SECOND APPLICANT
(Second
Defendant)
and
PC
DIEDERICKS &
ASSOCIATES
RESPONDENT
(Plaintiff)
JUDGMENT
COLLIS
J
INTRODUCTION
[1]
This
is an opposed application in terms of Rule 42(1) (a) wherein the
applicants seek to rescind or vary an order which was erroneously
granted in the absence of the applicants.
BACKGROUND
[2]
On
20 September 2017, the plaintiff issued summons against the
defendants for medical services rendered upon instruction of the
second defendant acting on behalf of the first defendant.
[3]
Pursuant
to the service of the summons the defendants entered an appearance
and on 18 October 2017 and the plaintiff launched summary
judgment
proceedings with the allocated hearing being 6 February 2018.
[4]
The
defendants resisted the summary judgment proceedings and delivered
their affidavits and heads of arguments on 2 February 2018.
[1]
[5]
On
5 February 2018, the day prior to the hearing of the matter, the
Plaintiffs attorney of record agreed with the Defendants that
the
matter would be removed from the roll with costs to be costs in the
cause.
[2]
[6]
What
follows was an exchanged of a Notice of Removal
via
email
between the parties, where the costs was agreed to be costs on the
cause.
[3]
[7]
The
defendants were not present at the hearing on the 6 February 2018 and
on 1 March 2018 was informed by correspondence received
from the
plaintiffs attorney that the summary judgement application was
removed, leave to defend granted and that the court ordered
costs to
be costs in the cause.
[4]
[8]
It is the contents of the above
letter so received that is the premise for the rescission application
in that the application was
not removed from the court roll on 6
February 2018 with leave to defend granted, but that
instead
the order that the court granted was to grant leave to defend with
costs in the cause. Thus contrary to the agreement reached
between
the parties on 5 February 2018.
[9]
Uniform
Rule 42 provides as follows:
"S
42(1)(a) The court may, in addition to any other powers it may have,
mero motu
or on 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;"
[10]
In order to obtain rescission under this sub rule, the applicant must
show that the prior order
was 'erroneously sought or erroneously
granted in the absence of any party affected thereby'.
[5]
Once the court holds that an order or judgment was erroneously sought
or granted, it should without further enquiry rescind or
vary the
order
[6]
and it is not necessary
for a party to show good cause for the sub rule to apply.
[11]
Furthermore,
in general terms a judgment is erroneously granted if there existed
at the time of its issue facts of which the court
was unaware, which
would have precluded the grating of the judgment and which would have
induced the court, if aware of it, not
to grant the judgment.
[7]
[12]
In
the decision Naidoo v Matlala it was held NO
2012 (1) SA 143
(GNP) at
153 C-E it was held that: 'if material facts are not disclosed in an
ex parte application or if fraud is committed (i.e.
the facts are
deliberately misrepresented to the court) the order will be
erroneously granted.
[13]
In
the founding affidavit the deponent sets out, the court order issued
in respect of the proceedings of 6 February 2018, reflected
the
following:
'
1. Leave to defend is hereby
granted.
2.
Costs to be costs in the cause.' Whereas as per the agreement reached
between
the parties, the matter should merely have been removed from
the roll with costs to be costs in the cause as agreed to between
them. This is precisely the reason why relief in terms of this
present application is sought.
[14]
In addition to the above the deponent sets out that the reason for
the absence by the defendants
at court, was due to their belief, that
an agreement was reached between the parties as to what order would
be made and that such
agreement would be honestly complied with and
sought by the plaintiff.
[15]
Furthermore,
that the order of 6 February 2018, therefore does not reflect the
intention of the parties and that the plaintiffs
legal counsel, which
includes Cilliers & Reynders had no basis or authority to pursue
the order that it did on 6 February 2018.
[8]
[16]
In
the Answering affidavit, the plaintiff responded as follows:
16.1
That
it was always the intention that the summary judgment enrolled for 6
February will be removed from the roll in order to allow
the
defendants to proceed with their defence.
[9]
16.2
Neither
my letter of 5 February 2018, nor the notice of removal, stated that
the order of 'costs in the cause' pertained only to
the removal of
the application from the roll of 6 February 2018 and that the
defendants ought to have sought clarification as to
which costs,
costs in the cause related to.
16.3
Furthermore,
it at all times was open to the defendants to have attended court on
6 February 2018 in order to ensure that the order
made by the court
on this day indeed reflected the defendants understanding of their
agreement with the plaintiff.
[10]
16.4
In
an application for an opposed summary judgment where the plaintiff is
minded to allow the defendant leave to defend, it is typically
understood that the matter will need to be removed from the roll and
the defendant would be granted leave to defend.
[17]
As
mentioned in order for an applicant to succeed with a rescission
under Rule 42 an applicant must show that the application was
'erroneously sought or erroneously granted'.
[18]
In
order for this court to make a determination as to whether the
applicant has satisfied the
onus
in
order to succeed to have the judgment rescinded in terms of Rule
42(1) (a), this court would have to determine what is the effect
of
the order so given by the court on 6 February 2018.
[19]
What
is apparent from the agreement reached between the parties on 5
February 2018, was that the plaintiff was not going to proceed
with
the summary judgment application on 6 February 2018. The agreement
reached was that the application was going to be removed
(or
postponed)
and
implicit thereto, that this application would be re-enrolled on a
future date for adjudication.
[20]
Furthermore,
that the costs occasioned by such removal
(or
postponement)
of
the application set down for 6 February 2018, was that the court
would order such costs to be costs in the cause.
[21]
In
reality what instead occurred was not a removal, or a postponement of
the application but instead the defendants were granted
leave to
defend, with costs ordered to be costs in the cause.
[22]
The
question that now begs for an answer is whether the said order
granting the defendants leave to defend the action resulted in
a
different outcome as if the application was merely removed
(or
postponed),
and
later re-enrolled on a future date and eventually successfully
opposed by the defendants?
[23]
In
the event of the latter having occurred, the defendants at best would
have been given the same order of granting them leave to
defend if
they were successful in their opposition and a court would have
awarded the usual order of costs to be costs in the cause.
The result
thereof is that the defendants would be permitted to file their plea
and thereby ultimately defend the action.
[24]
In
the presence instance the defendants has no misgivings about the
costs order given by the court on 6 February 2018. They quite
rightly
conceded to and accepted same. Therefore in respect of the costs
order given on the hearing date, it cannot be said this
order on
costs was erroneously sought or granted.
[25]
This
then leaves the order given by the court in relation to the merits of
the application. As mentioned it has been conceded that
the order on
the merits given by the court, was not the order agreed upon by the
parties on 5 February 2018. As mentioned, if the
application was
merely removed and if the plaintiff was of the intention to proceed
with the summary judgment in future, another
date would have to have
been applied for and the previously removed summary judgment
application set down and ultimately adjudicated
upon. If the
defendants in this instance would then have been successful with
their opposition, no different order would have been
given by the
court, but for the order to grant the defendants leave to defend.
[26]
It
therefore must follow, that the resultant order on the merits sought
and given by the court on 6 February 2018, albeit not intended
by the
parties at the time, had the same desired outcome as if the summary
judgment application was only later adjudicated upon.
It certainly is
not an order erroneously sought or granted by the court. In addition
thereto, the order so given is also not an
order which can be
considered to be prejudicial to any of the defendants' rights.
COSTS
[27]
As
far as costs and having regard to what has been espoused in the
respective affidavits, I am of the opinion that the appropriate
costs
order in the circumstances will be to order each party to pay its own
costs.
ORDER
[28]
As
a consequence the application falls to be dismissed with each party
ordered to pay its own costs.
C.J
COLLIS
JUDGE
OF THE HIGH COURT
Appearances:
For
the Applicants : Adv. S. Saunders
Instructed
by
: Douglas Bennett Inc.
For
the Respondent : Adv. E. Van As
Instructed
by
: Cilliers & Reynders Inc.
Date
ofHearing : 27 August
2019
Date
of Judgement : 27 February 2020
[1]
Founding Affidavit
para
14 p 12
[2]
Founding Affidavit para 15 p 12
[3]
Founding Affidavit
para
17 & 18 p 13, Annexures 'DB 5',
'DB 6' and 'DB 7'
[4]
Founding Affidavit para 22 p 15
[5]
Duma v Absa Bank Ltd 2018 (4) SA 463 (GP)
[6]
Tshabalala v Peer
1979 (4) SA 27
(T)
[7]
Rossitter v Nedbank Ltd (unreported, SCA case no 96/2014 dated 1
December 2015) at paragraph (16)
[8]
Founding affidavit para 34 p 24
[9]
Answering affidavit para 14 p 207
[10]
Answering affidavit para 16 & 17