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[2019] ZAGPPHC 191
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Ramaite and Another v Munaka General Trading (Pty) Ltd (In Liquidation) (8991/2017) [2019] ZAGPPHC 191 (29 May 2019)
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: 8991/2017
29/5/2019
In
the matter between:
THENDO
GERALDINE
RAMAITE
First Applicant
MUTHANYI
ROBINSON
RAMAITE
Second Applicant
and
MUNAKA
GENERAL TRADING (PTY) LTD
(IN
LIQUIDATION)
Respondent
INRE:
MUNAKA
GENERAL TRADING (PTY) LTD
(IN
LIQUIDATION)
Plaintiff
and
THENDO
GERALDINE RAMAITE
First Defendant
MUTHANYI
ROBINSON
RAMAITE
Second Defendant
JUDGMENT
HF
JACOBS, AJ:
[1]
On 26 October 2017 Mavundla J granted
summary judgment against the applicants in the following terms:
"THE COURT GRANTS SUMMARY JUDGMENT in
favour of the plaintiff against the defendants jointly and severally,
the one paying
the other to be absolved for:
CLAIM 1:
1.
Plaintiff of the capital amount
of R1 873 967.00;
2.
Interest on the aforesaid amount,
a tempore morae;
3.
Costs of suit;
CLAIM 2:
1.
Plaintiff of the capital amount
of R235 599.02;
2.
Interest on the aforesaid amount,
a tempore morae;
3.
Costs of suit."
[2]
Before Mavundla J were the respondent's
particulars of claim (with a number of annexures attached thereto),
an application for summary
judgment and an affidavit deposed to by
the applicants resisting the application for summary judgment. At the
hearing of the application
for summary judgment the respondent was
represented by senior counsel. Senior counsel's heads of argument
presented to Mavundla
J forms part of the record in this application.
Counsel for the respondent dealt with the affidavit of the first
applicant presented
in opposition to the application for summary
judgment in his heads of argument before Mavundla J and made
submissions in support
of the application for summary judgment by,
inter alia,
dealing
with the defences raised in the opposing affidavit.
[3]
The applicants were not present at the
hearing of the application for summary judgment and were not
represented by counsel or an
attorney when the application for
summary judgment was heard. Against that background and broader
context the applicants now apply
for rescission of the summary
judgment of 26 October 2017.
[4]
During argument I requested counsel for
the applicants to indicate on which basis in law the application for
the rescission is brought.
I was informed that the evidence presented
by them justifies the relief on more than one legal premise. I will,
therefore, consider
the rescission application as an application
brought in terms of Rule 31(2)(b), Rule 42 and the common-law.
[5]
A summary judgment, if erroneously
granted, may be rescinded in terms of Rule 42.
[1]
In
Louis Joss Motors v Riholm
[2]
it was held that in an application
for rescission of a summary judgment under Rule 42 the grounds are
limited to those set out in
sub-rule 42(1)(a) and (b). Rule 42(1)(a)
and (b) reads as follows:
"42.
Variation and rescissions of orders
(1)
The
Court may, in addition to any other powers it may have, mero motu or
upon 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;
(b)
an
order or judgment in which there
is
ambiguity, or patent error or
omission, but only to the extent of such ambiguity, error or
admission;
(c)
an
order or judgment granted as
a
result of
a
mistake common to the parties.
"
[6]
An order or judgment is erroneously
granted if there exists an irregularity in the process that gave rise
to the order or judgment
or if it was not legally competent for the
Court to have made the order.
In casu
Mavundla J had, in law, the
jurisdiction to grant or dismiss the application for summary judgment
and the respondent was in law
entitled to apply for summary judgment.
Summary judgment could, therefore, not have been
"erroneously
sought"
or
"erroneously
granted"
within the meaning of
those terms in Rule 42(1)(a). The applicants' approach to the
application for rescission is that summary judgment
was
"wrongly
granted"
having regard to the
pleaded cause of action, its nature and the alleged illiquidity of
that claim on authority of the judgment
in
Nyingwa
v Moo/man N.O. supra.
[3]
[7]
The record of the proceedings before
Mavundla J shows that the applicants were not present on the day and
not represented by a practitioner,
but the summary judgment
application was however opposed and considered by the presiding
judge. Summary judgment was granted under
circumstances where strict
compliance with Rule 32 was required. The presiding judge considered
the affidavit presented to him
in opposition of the application for
summary judgment, heard counsel for the respondent and after having
considered what was placed
before him exercised his discretion as
provided for in Rule 32(5). One must be mindful thereof that a
defendant who delivered an
opposing affidavit in summary judgment
proceedings is not obliged to appear at the hearing. The presiding
judge is, however, obliged
to consider the contents of the opposing
affidavit filed and may even refuse summary judgment if the
application is unopposed if
he or she is not satisfied that the
extraordinary remedy provided for by Rule 32 should be allowed. It is
therefore necessary to
consider whether the applicant's challenge of
the summary judgment shows that it had been applied for and granted
erroneously.
[8]
The grounds for the rescission advanced
by the applicants are conveniently summarised in paragraph 3 of the
applicants' counsel's
heads of argument and include the following:
[8.1] that
the applicants were not in wilful default and that they cannot be
blamed for not
being present or having representation when the
application for summary judgment was heard and granted on 26 October
2017;
[8.2] the
application for summary judgment was erroneously sought as the claims
embodied in
the particulars of claim do not fall under the provisions
of Rule 32 and the particulars of claim are defective, excipiable on
the ground that it is vague and embarrassing and does not disclose a
cause of action; and
[8.3] that
the application for summary judgment was not competent in law.
[9]
I am not convinced that the applicants
were in wilful default. They intended to oppose the application for
summary judgment and
their absence or the absence of a legal
representative on the day was the result of remissness of the staff
in the office of their
attorney. They are in my view not barred from
seeking the relief sought.
[10] If a summary
judgment application was unopposed, the judgment consequently granted
in the absence
of a defendant cannot be rescinded under Rule
31(2)(b).
[4]
The main reason for that is that the provisions of Rule 31 are not
applicable to summary judgment because the rule applies only
to those
cases in which a defendant is in default of delivery of a notice of
intention to defend or a plea which is not the position
in an
application for summary judgment. In the present matter the
application for summary judgment was opposed. The application
for
rescission cannot succeed in terms of Rule 31.
[5]
[11]
A summary judgment can be rescinded
under the common-law.
[6]
The law in this regard has been restated by the Supreme Court of
Appeal in
Moraitis lnvestments
.
[7]
The relevant paragraphs read as
follows:
“
[12] The
approach differs depending on whether the judgment is a default
judgment or one given in the course of contested proceedings.
In the
former case it may be rescinded in terms of either rule 31(2)(b) or
rule 42 of the Uniform Rules, or under the common law
on good cause
shown. In contested proceedings the test is more stringent. A
judgment can be rescinded at the instance of an innocent
party if it
were induced by fraud on the part of the successful litigant, or
fraud to which the successful litigant was party.
As the cases show,
it is only where the fraud
-
usually
in the form of perjured evidence or concealed documents
-
can be brought home to the successful
party that restitutio in integrum is granted and the judgment is set
aside. The mere fact
that a wrong judgment has been given on the
basis of perjured evidence is not
a
sufficient basis for setting aside
the judgment. That is a clear indication that, once a judgment has
been given, it is not lightly
set aside, and De Villiers JA said
as
much in Schierhout.
[13] Apart from fraud the only other basis
recognised in our
case
law
as
empowering
a
court
to set aside its own order
is
justus
error. In Childerley, where this was discussed in detail, De Villiers
JP said that 'non-fraudulent misrepresentation is not
a
ground for setting aside a judgment'
and that its only relevance might be to explain how an alleged error
came about. Although a
non-fraudulent misrepresentation , if
material, might provide a ground for avoiding
a
contract, it does not provide a
ground for rescission of a judgment. The scope for error as
a
ground for vitiating
a
contract is narrow and the position
is the same in regard to setting aside
a
court order. Cases of justus error
were said to be 'relatively rare and exceptional'. Childerley was
considered and discussed by
this court in De Wet without any
suggestion that the principles it laid down were incorrect.
"
[8]
[12]
The applicants' challenge of the summary
judgment is, although couched as a rescission application of a
judgment
"erroneously sought and
granted",
in fact a challenge
of the judgment on the basis that it was
"wrong".
It was wrong, so the allegations go,
because the claim was not liquid, and, therefore, not being capable
of summary judgment, premised
on a cause of action which has been
pleaded in a vague and embarrassing manner and not recognised in law.
The summary judgment
is a final order in contested proceedings. It is
not within my remit to reconsider the application for summary
judgment. I am of
the view that the proper procedure to challenge the
summary judgment would be an appeal.
Under the circumstances I make the following
order:
The application is dismissed with costs.
HF
JACOBS
ACTING JUDGE OF THE HIGH COURT
PRETORIA
[1]
See
Nyingwa v Moolman N.O
.
1993 (2) SA 542
(T)
at 510B-511A.
[2]
1971 (3) SA 452
(T) at 454G-H.
[3]
At 5100-G;
Occupiers. Berea v De
Wet
2017 (5) SA 346 CC at [69];
Seale v Van
Rooyen N.O.
&
Others: Provincial Government. North West
Province v Van Rooyen N.O.
&
Others
2008 (4) SA 43
(SCA) at [18].
[4]
See
Louis Joss Motors v Riholm
supra
at 454A-I;
Tlholoe v
Maury (Edms) Bpk h/a
Franelle Gordyn
Boetiek
1988 (3) SA 922
(0) at 925G-H.
[5]
See
Louis Joss Motors (Pty) Ltd v
Riholm
1971 (3) SA 452
(T} at 454;
Bristow
v Hill
1975 (2) SA 505
(N) at SOSH;
Nyingwa v Moolman N.
O
. 1993 (2) SA
508 (Tk).
[6]
See:
Louis Joss Motors (Pty) Ltd v Riholm
1971
(3) SA 542
(T) at 455A-B;
Nyingwa
v
Moolman N.
0 .
1993 (2) SA 508
(Tk) at 511B-5128;
Saxum Group (Pty) Ltd v Dalefern Properties
(Pty) Ltd
2011 (1) SA 230
(GSJ) at 2321;
Sundra
Hardware v Mactro Plumbing
1989 (1) SA 474
(T) at 4761
[7]
Moraitis Investments v Montigue Dairy
2017 (5) SA 508
(SCA) at [12]-[13].
[8]
Footnotes have been omitted.