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2019
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[2019] ZALMPPHC 10
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Interactive Trading 115 CC and Another v South African Securitisation Programme and Others (2119/2017) [2019] ZALMPPHC 10; 2019 (5) SA 174 (LP) (29 March 2019)
REPUBLIC OF
SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED.
CASE NO: 2119/2017
In
the matter between:
INTERACTIVE
TRADING 115 CC
1
ST
APPLICANT
BAREND
STEPHANUS SCHEMPERS
2
ND
APPLICANT
And
SOUTH
AFRICAN SECURITISATION
PROGRAMME
1
ST
RESPONDENT
SASFIN
BANK LIMITED
2
ND
RESPONDENT
SUNLYN
(PTY) LTD
3
RD
RESPONDENT
JUDGMENT
MANGENA
AJ
[1]
This is an application for rescission of judgment granted against the
applicants on 21 December 2017.
The order was varied on 05 June 2018.
[2]
Both the main judgment and variation order were granted in the
absence of the applicants.
[3]
The applicants rely on the provisions of rule 42 (1) (a) of the
Uniform Rules for their application.
Rule 42 (1) (a) provides that:
“
(1) 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”.
[4]
There is no dispute that the applicants are affected by the
judgment(s) granted and that same were granted
in their absence.
[5]
Mr Gaisa, counsel for the applicants, argued that the judgments were
granted erroneously in that the
proceedings were not brought to the
attention of the applicants. In support of this argument, he found
authority in
Lodhi
2 Properties Investments CC v Bondev Development (PTY) Ltd
[1]
where the court held that:
“
Where notice
of proceedings to a party is required and judgment is granted against
such party in his absence without notice of the
proceedings having
been given to him such judgment is granted erroneously. That is so
not only if the absence of proper notice
appears from the record of
the proceedings as it exists when judgment is granted but also if,
contrary to what appears from such
record, proper notice of the
proceedings has in fact not been given. That would be the case if the
sheriff’s return of service
wrongly indicates that the relevant
document has been served as required by the Rules whereas there has
for some or other reason
not been service of the document. In such a
case, the party in whose favour the judgment is given is not entitled
to judgment because
of an error in the proceedings. If, in these
circumstances, judgement is granted in the absence of the party
concerned the judgment
is granted erroneously”.
[6]
Mr. Cothill, counsel for the Respondents submitted that the return of
service has been effected in terms
of the rules and in the absence of
a demonstrable error on the part of the court which granted the
judgments, the application should
fail. He contended on behalf of the
respondents that service was given or done at the chosen domicilium
and it is not a legal requirement
that service should be effected
upon a person. According to him, it does not matter whether the
applicants were aware of the proceedings
or not; in which event they
could have chosen either to defend or consent to judgment.
[7]
The submission by Mr. Cothill may appear convincing at first blush
but may disappear into nothingness
upon scrutiny. As a matter of
principle the applicants were entitled to be served with summons and
defend the action or consent
to judgment if so advised. The
Respondents have conceded that the applicants were not in willful
default in that the summons were
not served upon them. Once it is
accepted that the applicants were not served, it follows that the
judgment granted in their absence
is liable to be set aside on the
basis that it was erroneously granted. It is a fundamental principle
of our law that a court will
not make a final order that may
prejudice the rights of a person without notice to him. See
Fraind
v Nothmann
[2]
.
[8]
It follows that the default judgment granted against the applicants
should be rescinded and leave be
granted upon the applicants to
defend the proceedings if so advised.
[9]
There is however one matter that calls for a comment. The matter
relates to the purpose of the rules
and the duty the sheriff owes to
the court in so far as service of court documents is concerned. A
sheriff is an officer of court
who is required to perform his duties
honestly and diligently. The code of conduct for sheriffs states
clearly that sheriffs are
an integral part of the justice system. As
a judicial officer, each sheriff is responsible for the effective
service and execution
of court processes. This is an important
function in the administration of justice machinery where disputes
among members of the
society are required to be adjudicated fairly.
In
Steinberg
v Cosmopolitan National Bank of Chigago
[3]
the court said that it is a cornerstone of our legal system that a
person is entitled to notice of legal proceedings against such
a
person. The rules have reserved this job to a sheriff and rely on the
return of service prepared by him that the defendant has
been
notified of the proceedings. If no appearance to defend or notice to
oppose is filed, the court can upon satisfying itself
that the
service was effected properly, grant a default judgment as it
happened in this case.
[10]
This court is inundated with applications for rescission of judgment
where in the majority of cases, summons or
application commencing
proceedings have been served purportedly on the gate or door by
affixation with an accompanying note that
attempts have been made and
no person found. Instead of making an effort to find the party, the
sheriff simply drops the court
documents and records that he has
complied with Rule 4, only for the party to come to court and state
that what is recorded in
the return is not correct.
[11]
In casu, the first applicant operates a business of a fueling station
on a 24-hour basis. At any given time, there
are petrol attendants
and cashiers on site performing their respective duties. A sheriff of
this court, entrusted with an important
responsibility of ensuring
that the legal proceedings are brought to the notice of the
defendants stated in his return that service
was done by “affixing
a copy thereof to the principal gate of the residence as the premises
remained locked and nobody was
present on the premises”.
[12]
Regarding the second applicant the sheriff’s return of service
states that it was done at the chosen
domicilium
citandi et executandi
address by handing a copy thereof to Freddy Shai ostensibly
responsible …. and in control of the second defendant after
exhibiting the original and explaining the nature and exigency of the
said process. 2
nd
defendant has moved from the given address-current address unknown”.
[13]
The second applicant disputes the correctness of the information
recorded on the returns of service and state as
a matter of fact that
he still resides at his chosen address and does not know Freddy Shai.
Consequently, he did not become aware
of the process.
[14]
What emerges from the above is that the sheriff who prepared the
returns of service did not perform his duties
honestly and diligently
in fulfillment of his obligations to this court. The essence of the
applicant’s submissions is that
return of service should not be
relied upon as it contains an incorrect information. These are
serious allegations being
made against an officer of court. The court
relies on the office of the sheriff as one mechanism in the
administration of justice
to ensure that the process leading up to
the granting of a judgment is fair and that the legal proceedings
have been brought to
the attention of the other party. Sheriffs like
attorneys are required to be honest in their dealings with the court.
The court
should upon mere production of the return of service accept
as correct the information contained therein.
[15]
In the circumstances of this case, I am unable to avoid making an
adverse remark against the sheriff who was entrusted
with the service
of documents. He failed to do his job and this failure has caused
some considerable inconvenience to the court
and to the litigants.
Three judges had to sit in adjudication of this matter and the
litigants incurred substantial amounts of
money. All of which could
have been avoided.
[16]
One further aspect which deserves comment relates to the manner in
which the sheriff who was entrusted with the
writ of execution
handled this matter. The applicant states the following in his
affidavit:
“
On the 3
rd
of August 2018, a notice was left at the principal place of business
of the 1
st
applicant at 343 De Wet Drive, Polokwane by Deputy Sheriff of
Polokwane, Gerhard Greef, and upon gaining possession of the notice
on the same date, I forthwith caused a telephone call to be directed
to the sheriff’s office in order to enquire about the
contents
of the said notice. The personnel at the sheriff’s office
advised that there is a judgment that was noted against
me and the
1
st
applicant and that they have instructions to execute a writ against
our property and as such they require our attendance at no
66
Platinum street, Polokwane, in order for us [to] arrange for
settlement of the judgment debt”.
[17]
Any person familiar with the court process will know that a sheriff’s
job is to serve the documents and execute
the warrants issued. It is
not his business to arrange for settlement of judgment debts on
behalf of creditors or plaintiffs. In
my experience I have not come
across a situation where a sheriff had called a person to his or her
office for the purpose of arranging
settlement. What happened in this
case clearly shows that the office of the sheriff treats judgment
debtors differently based on
their social, economic or racial
classification. This is certainly unacceptable as the law requires
people to be treated the same
by an officer of court. A sheriff’s
office is not a negotiating forum where the rich and classy are
called to hammer deals
and subvert court processes whilst the poor
are subjected to an unkind treatment where their goods get removed in
the dead of the
night and at times sold below market value for no
reason other than that they are poor and often times Black.
[18] I have
directed the Registrar of the court to make available a copy of this
judgment to the Board of sheriff’s
for noting and taking of
appropriate steps to ensure that things like these do not happen.
What happened in this case is a general
dereliction of duty on the
part of the sheriff who was entrusted with the service of summons.
[19]
Consequently, it is ordered that:
1.
Default
judgment granted on 21 December 2017 is hereby rescinded and set
aside.
2.
The
Respondents are ordered to pay the costs of the application on a
party and party scale, jointly and severally, the one paying
the
other to be absolved.
MANGENA
AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
For
Applicants
: Mr. Gaisa
Instructed
by
: Espag Magwai Attorneys
For
Respondents
:
Mr.
Cothill
Instructed
by
: Smit Jones & Pratt
Date of
Hearing
: 25 March 2019
Date of
Judgment
:
29 March 2019
[1]
2007 (6) SA 87 (SCA)
[2]
1991 (3) SA 837
at P839 H-I
[3]
1973 (3) SA 885
(RA)