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[2019] ZAGPPHC 200
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Firstrand Bank Ltd t/a Wesbank v Maduna (71321/2016) [2019] ZAGPPHC 200 (21 May 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 71321/2016
21/5/2019
In
the matter between:
FIRSTRAND
BANK LIMITED T/A WESBANK
Applicant
and
BUSISIWE
NTOMBITIKHONA GOODNESS MADUNA
Respondent
JUDGMENT
Introduction
and background facts
[1]
The applicant, who I shall henceforth refer to as 'Wesbank',
instituted
action proceedings against the respondent during August
2016 wherein it sought, amongst other relief, an order to cancel an
Instalment
sale agreement and return of a 2012 Volkswagen Caddy Maxi
motor vehicle.
[2]
The respondent, who I shall henceforth refer to as 'Ms Maduna' failed
to enter appearance to defend the action, whereafter Wesbank applied
for and obtained default judgment In terms of Rule 31(5) on
01
November 2016. According to the court order, Wesbank was also granted
leave to apply for
"damages
,
if any, in an amount to be calculated
in accordance with section 127(5)- (9) of the NCA"
[3]
Ms Maduna filed an application during February 2018 to rescind the
judgment
and order of 01 November 2018. Wesbank opposed this
application. A notice to oppose was served on Ms Maduna by electronic
mail
on 26 February 2018 and filed in court on 27 February 2018. Ms
Maduna acknowledge receipt on the same day she received the email.
[4]
The answering affidavit was served by electronic mail on 20 March
2018
and filed in court on the same day. Ms Maduna served her
replying affidavit and an index on 22 May 2018.
[5]
Her rescission application served before Acting Judge Strydom
(Strydom
AJ) In the unopposed roll of 30 May 2018. The following
order was issued;
"
Having read the
documents filed of record, heard counsel and considered the matter:
IT IS ORDERED THAT
The default judgment granted
against the applicant on the 1
st
of November 2016 under
case number 7132116 is hereby set aside."
[6]
It is important to note that Ms Maduna did not immediately disclose
the
fact that she had obtained her order on 30 May 2018. She
continued to accept service of documents and also filed hers as if
the
matter was still going to be heard.
[7]
On 01 June 2018 Wesbank filed a further and second answering
affidavit,
as well as an index. It subsequently served heads of
argument on Ms Maduna by electronic mail on 19 June 2018 . This was
filed
on 20 June 2018.
[8]
Ms Maduna only disclosed the existence of the order that she obtained
before Strydom AJ on 22 June 2018 when she replied to Wesbank's email
of 19 June 2018. The email response, with the court order,
is
directed at one Nadine Du Toit, identified in the record as a
candidate attorney at offices of the applicant's attorneys of
record.
The email states, amongst other things, as follows;
"In terms of Rule 4A(1)(c)
of the Uniform Rules of Court, which provides for the service of
documents and notices to be effected
by electronic mail, I hereby
serve and attach
a
copy of the court
ruling on the matter. I would also like to eneter into a payment
arrangement for the vehicle In question."
[9]
Ms Du Tolt replied to the sudden revelation of the court order of 30
May
2018 by email dated 26 June 2018. She reminded Ms Maduna that the
matter was opposed and that she (Ms Maduna) was
"not
allowed to proceed on an unopposed basis on 30 May 2018".
She also requested Ms Maduna to
abandon the judgment for the matter to be argued in the opposed
motion roll and that should she
fail to do so within three days,
Wesbank would proceed
'with an application in terms
of
Rule
42 to set aside the judgment
"and also seek a punitive cost
order against her.
[10]
In this application, Wesbank seeks an order in terms of the
provisions of Rule 42 (1)(a) to rescind
the order granted by Strydom
AJ on 30 May 2018 on the basis that It was erroneously sought.
[11]
Ms Maduna Is opposing the relief sought and has filed three (3)
answering affidavits. Wesbank
has also filed a second replying
affidavit.
[12]
None of the parties has sought leave to file further affidavits, in
the papers before me or during
oral argument. In any event, Ms
Maduna's second and third affidavits in the main deal with what she
perceives to be unprofessional
conduct or the part of Wesbank's legal
representatives. She went as far as to write what I would call a
'mini thesis',with dictionary
references of meaning of words and
extracts from what she referred to as 'Rules for the attorneys
profession. 'She also accused
Wesbank's legal representatives of
defeating the ends of justice , crimen iniuria , contempt of court
and perjury. This mini thesis
and reseach appears to have been
triggered by a dispute with regard to whether she has served the
notice of setdown for 30 May
2018.
I will address this issue when I
deal with the procedures for setdown of motion applications.
Rule
42
[13]
Rule 42(1)(a) reads as follows:
'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;
‘
[14]
The purpose, historical background and application of rule 42(1)(a)
was considered by the Supreme Court of Appeal in the matter of
Pieter
Westerman Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills
Cape
2003 (6) SA 1
SCA
.
[15]
although the court, per Jones AJA did not accept that on the facts,
the error fell within the intended meaning of rule 42(1)(a), the
general principle is that the mistake must be such that the judgment
would not have been granted If it was discovered at the time
application for default judgment was made.
[16]
On the issue of whether the mistake should be clear from the record
of proceedings, the court said the following at paragraph [10]
[1]
[10] During the course of
argument counsel drew our attention to conflicting approaches of the
courts to the proper application
of rule 42(1)(a). Bakoven Ltd v GJ
Howes (Pty) Ltd,
15
and Tom v Minister
of Safety and Security
16
hold that the 'error'
must be patent from the record of proceedings and that the court is
confined to the four comers of the record
to determine whether or not
rule 42(1)(a)
is
applicable.
Stander v ABSA Bank Bpk
17
on the other hand
permits external evidence of the 'error'. The conflict seems to me to
obscure the real issue, which Is to determine
the nature of the error
in question. This judgment concludes that what happened in this case
did not amount to an error in terms
of the rule, regardless of
whether or not it manifested itself in the record of proceedings. It
Is consequently unnecessary for
present purposes to say anything more
about the conflict.
[17]
In the matter before me, as I have already indicated, there Is no
record of proceedings, save for what Ms Maduna has submitted, which
in my view appear to be highly improbable. I will deal with
her
submissions later on.
[18]
On the consequences or effect of failure to give a required notice,
Streicher JA had this to say in the matter of
Lodhi
2 Properties v Bondev 2007(6) SA 87 (SCA) at paragraph [24]
[2]
[24] I agree that Erasmus J in
Bakoven adopted too narrow an interpretation of the words
'erroneously granted.' 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,
judgment is granted in the absence of the party concerned the
judgment is granted erroneously.
14
See
in
this regard Fraind v Nothmann
1991
(3) SA 837
(W)
where Judgment by default was granted on the strength of
a
return of service
which indicated that the summons had been served at the defendant's
residential address. In an application for
rescission the defendant
alleged that the summons had not been served on him as the address at
which service had been effected
had no longer been his residential
address at the relevant time. The default judgment was rescinded on
the basis that it had been
granted erroneously.
15
Opposition and enrollment of
motion applications: rule 6(5)(d),(e) and (f) read with the Practice
Directives
[19]
Rule 6(5)(d) reads as follows;
"
Any person opposing the
grant of an order sought in the notice of motion shall-
(i)
within the time stated
In the said notice, give applicant notice, in writing, that he
intends to oppose the application, and in
such notice appoint an
address within eight kilometers of the office of the registrar, at
which he will accept notice and service
of all documents;
(ii)
within fifteen days of notifying the
applicant of his intention to oppose the application, deliver his
answering affidavit, if any,
together with any relevant documents;
and
(iii)
if he intends to raise any question
of law only he shall deliver notice of his Intention to do
so,
within the time stated in the
preceding sub- paragraph, setting forth such question.
[20]
Rule 6(5) (e) reads as follows;
"
Within 10 days of the
service upon him of the affidavit and documents referred to in
sub-paragraph (ii) of paragraph (d) of subrule
(5) the applicant may
deliver
a
replying affidavit. The court may in its discretion
permit the filing of further affidavits.
"
[21]
It is common cause that Wesbank served and filed the notice to oppose
Ms Maduna's rescission application as well as the answering affidavit
as contemplated in Rule 6(5)(d) and(e) within the stipulated
time
periods.
[22]
Rule 6(5)( (f) reads as follows;
"
Where no answering
affidavit or notice in terms of sub-paragraph (Iii) of paragraph (d),
is delivered within the period referred
to in sub paragraph (ii)
of paragraph (d) the applicant may within five days of the expiry
thereof apply to the registrar
to allocate
a
date for the
hearing of the application.
Where an answering affidavit Is
delivered the applicant may apply for such allocation within five
days of the delivery of his replying
affidavit or, if
no
replying affidavit Is delivered, within five days of
the
expiry of the period referred to In paragraph (e) and where
such notice Is delivered the applicant may apply for such allocation
within five days after delivery of such notice. If the applicant
falls so to apply within the appropriate period aforesaid, the
respondent may do so Immediately upon the expiry thereof. Notice In
writing of
the
date allocated by the registrar
shall forthwith be given by applicant or respondent, as the
case
may be, to
the
opposite party.
"
[23]
The answering and replying papers having been filed, the application
for rescission of the Wesbank's judgment and order of 01 November
2016 could only have been heard if anyone of the parties complied
with the highlighted portions of this rule.
[24]
It is also important to note that the application for a hearing
date
of an opposed motion application is made in writing and directed to
the Registrar.
[25]
The Judge President has issued directives that litigants are
compelled
to comply with before applying for a hearing date.
[26]
Paragraph 13.9.2deals with enrolment of opposed motions. A party
to
an opposed motion may only apply for allocation of a date for hearing
in terms of rule 6(5))(f) if the papers have been indexed
and
paginated and heads of argument served and filed.
[27]
It is therefore highly unlikely that the Registrar would have
allocated a date of hearing of
this matter in the unopposed roll,
knowing, or with information that it is opposed. Anyway, there is no
evidence to suggest that
this is what happened.
[28]
The date of 30 May 2018 is clearly, as it appears from that document,
an allocation in the unopposed
roll and from the date indicated
therein it was given before the notice to oppose was filed. This is a
common practice in the Division
to indicate a date on which the
matter will be heard in the event of non-opposition. It is therefore
not surprising that Ms Maduna
was given the date of 30 May 2018 when
she issued her application for rescission of Wesbank's judgment and
order of 01 November
2018. The form that she refers to as a notice of
a court date clearly state that the matter is enrolled in the
unopposed roll of
30 May 2018. It Is however incumbent upon an
applicant to remove the matter from the unopposed roll once it
becomes clear that
the matter is being opposed.
Submissions and discussion
[28]
In the first place, Wesbank relies on the common cause facts that I
have highlighted above for
the contention that Ms Maduna was aware
that her application to rescind the order of 01 November 2016 was
being opposed and as
such it should not have served before Strydom AJ
on 30 May 2018. It is also not clear why Ms Maduna or her attorney or
counsel
proceeded to move for an order for rescission on an unopposed
basis.
[29]
There is a lot of speculation in the founding affidavit of Wesbank
with regard to what could
have happened to its notice to oppose,
answering affidavit, index and heads of argument. One such
speculation is that there could
be
'foul play on the part of the
respondent'
or that its papers “
were removed from the
court file.”
[30] Ms
Maduna appeared in person before me and was adamant that she was
capable of representing
herself. According to her, she followed the
correct procedures in terms of the rules when she obtained the order
to rescind Wesbank's
default judgment of 01 November 2016. She was
adamant that she did nothing wrong and that she
'cannot
speak for the reason the high court put the matter on the unopposed
roll
"because she "
did
sign for the case on the opposed court register”.
[31] Ms
Maduna also alleged that the judge who heard the matter called for
Wesbank's counsel
and when there was no response, he (the judge)
proceeded to grant her the relief that she was seeking. She denied
having removed
the applicant's answering affidavit from the court
file. According to her, the judge did see Wesbank's notice of
intention to oppose.
[32]
The notice of setdown that she alleges was served on Wesbank is
actually the form for application
of enrolment in the unopposed roll
for 30 May 2018. This date, as I have already explained above, is the
date on which the matter
would have been heard, in the event of non
opposition. It is a standard form titled "Application for
unopposed motion date".
From a reading of the emails exchanged,
Ms Mabuza forwarded this form to various recipients with email
addresses of Wesbank and
the applicant's attorneys of record on 23
February 2018. The email is directed to Muriel Wathekga, indicated as
"Secretary, Litigation & Commercial"
at the
offices of the Wesbank's attorneys of record. It reads as follows;
"Dear Muriel,
Please find attached notice of
court date. I have filed a motion of rescission with the Pretoria
High Court. The court documents
served and signed for at your offices
in Randburg on the 21
st
of February 2018. I trust that you
will advise your client to the legal implications of this period
until the matter is heard in
court".
[33]
The date of 30 May 2018 was clearly no longer a proper setdown once
the Wesbank had indicated
its notice to oppose the application and
also filed an answering affidavit.
[34]
None of the parties has made available the record of proceedings of
30 May 2018 before Strydom
AJ. Ms Maduna does not deny that on the
date the matter came before Strydom AJ she had already been served
served with the notice
to oppose as well as an opposing affidavit.
[35]
During oral argument Ms Maduna however sought to deny that Wesbank's
answering affidavit and heads of argument were filed in court. This
argument does not make sense because there is evidence that
she
received these documents. That these documents were flied is
evidenced by the Registrar's stamp.
Costs
[36]
Ms Maduna represented herself when she appeared before me. Though
she
is not legally qualified, she is definitely literate because, as I
have stated above, two of her answering affidavits contain
impressive
research on various issues that are not relevant for purposes of the
relief sought, with references to the dictionary
meaning of words,
the law regulating conduct of attorneys , what constitute perjury and
contempt of court.
[37]
She was adamant that she knows the court rules and has acted properly
in setting the matter down and in the manner in which she obtained
the court order before Strydom AJ on 30 May 2018.
[38]
I cannot penalize her for misreading the law and the rules, however,
her refusal to make concessions and accept the obvious facts is what
bothers me. I took time to go through the documents with her,
pointing out the basics as I have outlined above. I even stood the
matter down to allow her to reflect on the issues. She admitted
that
she had no defence on the merits of the default judgment that was
obtained against her which she rescinded under questionable
circumstances. She wants to defend the action anyway because
returning the vehicle would cause her to suffer in her business
ventures
as she uses it as a mode of transport. This can clearly be
seen from her emails attached to documents flied where she is
pleading
with Wesbank to enter Into a payment arrangement with her.
[39]
Most importantly, I also explained to her that that the order that
the applicant was seeking
was not going to have an effect on her
application to rescind the judgment and order that was obtained in
2016 which caused her
so much grief because according to her it was
obtained without her knowledge.
[40] I even
requested counsel for Wesbank to sit down with her and explain how
the court matters
(her rescission and the main action) would unfold
once this application is granted. That the order in this matter was
simply intended
to restore the status quo and that they were going to
ventilate the rescission application that she has filed and if she
succeed,
then they will proceed with the main action against her in
terms of which Wesbank seeks cancellation of the sale agreement and
return of the vehicle. She appeared to understand, but the next day
she insisted that she wanted to argue the matter.
[41]
Everyone has a right of access to courts and to have their matters
property ventilated
in court . This right is enshrined in Section 34
of the Constitution of the Republic of South Africa which reads as
follows;
""Anyone has the
right to have any dispute solved by the application of law decided in
a
fair
public hearing before a court or, where appropriate, another
independent impartial tribunal or forum."
[42] Our
courts often encouter lay litigants , and Judges do take time to
explain the procedures
and do afford them an opportunity to obtain
legal representation or an opportunity to consider their options.
Rescission of judgments
obtained under circumstances where a party
was not afforded a right of hearing is one mechanism of enforcing
this right. Ms Maduna
has already filed a rescission application, and
if there is merit in it, she is going to succeed. Equally, any
litigant, including
the applicant in this matter is entitled to the
same protection.
[43] Th
problem is the question of costs that are incurred by the opponents,
whilst matters
stand down or get postponed to allow the lay litigant
an opportunity to level the litigation field by trying to obtain
legal advice,
services
or
even to comprehend the nature of the proceedings.
[44] Before
burdening any litigant with costs, one obviously has to take into
account the peculiar
circumstances of each case.
[45] Ms
Maduna knew exactly what she was expected to do to prosecute her
application for rescission
of the default order that was obtained by
Wesbank against her in 2016. The forms that she was supposed to fill
to obtain a hearing
date in the opposed motion roll clearly give an
indication of the documents that are required. There Is no indication
that the
Registrar allocated any hearing date. In any event, the only
box that she has ticked is her application for rescission. She did
not check (tick off) the boxes indicated for notice to oppose,
answering affidavit and replying affidavit.
[46]
I have already indicated that in terms of current practice directives
the Registrar is
required to ensure that there has been compliance
with the
relevant
directives, such as filing of an index and heads of argument before a
matter is allocated a date in the opposed roll.
[47] Even
if her allegation that Wesbank's papers were not in the court tile
could be true, Ms Mabuza had
an obligation to inform the presiding
judge that the matter was opposed and to indicate the status of
filing of the documents in
that regard.
[48] It
appears from the court order that was issued by Strydom AJ that Ms
Mabuza was represent d by counsel.
She did not disclose this fact in
her answering papers in the matter before me, and particularly the
nature of the submissions
that were made on her behalf, as well as
her Instructions and the documents that she provided to her counsel.
[49] It is
common cause, and by her own admission, that she was served with
Wesbank's notice to oppose,
answering affidavit and that she also
served her replying affidavit some few days before the matter came
before Strydom AJ.
[50] Under
these circumstances, there is no reason why Wesbank should bear the
costs of this
application, and two days' court appearance which was
totally unnecessary because it is clear from the facts that the order
that
was issued by Strydom AJ should not have been sought as the
matter was opposed and actually ready for allocation in the opposed
motion court roll. Her conduct of proceeding to attend the unopposed
court and failing to alert the judge at least that other than
the
notice to oppose which she says was in the court file, Wesbank has
served her with an answering affidavit and and that she
has served
her replying affidavit.
[51] Her
conduct deserves a punitive cost order.
[52] Under
the circumstances, I make the following order,
[52.1] The order granted by
Strydom AJ on 30 May 2018 is rescinded and set aside,
[52.2] The respondent is
ordered to pay the costs of this application, which include costs of
two day's attendance in the
opposed motion court, on a scale as
between attorney and client.
TAN
Makhuvele
Judge
of the High Court
Appearances
Applicant:
Adv. I Oschman
Instructed
by:
Bezuidenhout Van Zyl & Associates INC.
C/O
Petzer, Du Toit & Ramulifho Attorneys
Hatfield
Pretoria
Respondent:
In person
Date
heard: 11 & 12 March 2019.
Judgment
delivered on: 21 May 2019.
[1]
Footnotes in the judgment omitted
[2]
Footnotes in the judgment omitted