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[2019] ZAGPPHC 343
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South African National Road Agency (Soc) Ltd v Lonebrock Construction (Pty) Ltd Reg No. (89831/2018) [2019] ZAGPPHC 343 (7 August 2019)
IN THE HIGH COURT OFSOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case No: 89831/2018
7/8/2019
In
the matter between:
THE SOUTH AFRICAN NATIONAL ROAD
AGENCY
(SOC)
LTD
APPLICANT
and
LONEROCK
CONSTRUCTION (PTY) LTD REG NO.
RESPONDENT
2007/004925/07
JUDGMENT
1.
INTRODUCTION
1.1.
The Respondent {as Plaintiff) initiated
action proceedings in this Court on 13 December 2018 against the
Applicant (as Defendant,)
in terms of which the Respondent claims
payment in the amount of R5 257 790,48, plus VAT.
1.2.
The combined summons was served on the
Applicant at its principal place of business on 13 December 2018.
1.3.
Regard being had to the
dies
non,
the time period for entering
appearance to defend expired on 11 February 2019.
1.4.
The Applicant failed and omitted to file
and deliver its notice of intention to defend the Respondent's claim
timeously, i.e. on
or before 11 February 2019.
1.5.
The Respondent subsequently prepared an
application for default judgment, in accordance with the provisions
of Rule 31(5)(a) of
this Court's rules. The aforementioned
application for default judgment was signed by the Respondent's
attorney on 14 February
2019.
1.6.
It is common cause that the Registrar of
this Court granted default judgment in the Respondent's favour on 18
February 2019, in
the amount of R5 257 790,48, together with interest
on the aforementioned amount at the prescribed legal rate calculated
from 10
September 2015 until date of payment and costs of the suit in
the amount of R650,00 plus Sheriff's fees.
2.
THE APPLICANT'S CASE
2.1.
It
is the Applicant's case that the judgment that was granted by the
Registrar of this Court on 18 February 2019 was erroneously
sought
and erroneously granted, as envisaged in Rule 42(1)(a) of this
Court's rules.
2.2.
It
is the Applicant's contention and case that the Respondent granted it
an indulgence on 15 February 2019. The Applicant's in-house
legal
advisor, Mr Vulindlela Matai, addressed an e-mail to the Respondent's
attorney on 15 February 2019 in which the following
was placed on
record:
“
Our telephonic
conversation of earlier today as well as your
Indulgence
to serve our notice to defend refers.
There was a slip up in our
procurement unit and as a result
the
attached
notice to defend was not prepared on time.
We are in the process of
appointing attorneys through our procurement unit and that process
will finalise by Tuesday the 19
th
of February 2019.
Your favourable
consideration
of our request is highly appreciated.”
2.3.
Mr
Matai
prepared a notice of intention
to defend dated 15 February 2019, which was dispatched to the
Respondent's attorney later (at 14h21)
on the same day.
2.4.
Mr
Matai, however, failed and omitted to file the notice of intention to
defend at the office of the Registrar of this Court. The
notice of
intention to defend was also not delivered at the offices of the
Respondent's attorney, in accordance with the provisions
of Rule 19
of this Court's rules.
2.5.
Rule
19(5) comes into play. This rule provides for the following:
“
Notwithstanding the
provisions of subrules (1) and (2) a notice of intention to defend
may be delivered even after expiration of
the period specified in the
summons or the period specified in subrule (2),
before default
judgment has been granted : provided that the Plaintiff shall be
entitled to costs if the notice of intention to
defend was delivered
after the Plaintiff had lodged the application for judgment by
default"
2.6.
The
Applicant appointed an attorney to represent it in this matter. The
Applicant's attorney filed and delivered an
"appearance
to defend"
on 20 February 2019.
This notice of “
appearance
to
defend”
was
filed at the office of the Registrar of this Court on 21 February
2019.
2.7.
The
Registrar of this Court granted default judgment on 18 February 2019.
2.8.
The
Respondent's attorney addressed an e-mail to Mr Mataion 21 February
2019 in which the following was placed on record:
"Save to place on record
that our offices did
not
agree to provide your offices with
any indulgence to file a notice of intention to defend, we take note
of the remainder of your
e-mail."
2.9.
The
Respondent's attorney furthermore addressed a letter on 22 February
2019 to Mr
Matai
and
the Applicant's duly appointed attorney in which the following was
placed on record:
“
2.
We wish to place on record that our offices did not agree to grant
any
indulgence to the Defendant to deliver its notice of intention to
defend, nor did our offices agree to the exchange or service of
notices by means of electronic mail.
3.
In
fact, writer advised your Mr Matai that the Plaintiff had already
applied for default judgment on 13 February 2019 and it was
not in a
position to uplift the application at such
a
late stage on Friday afternoon.
4.
Mr
Matai
was
advised
that his attorneys would need to deliver any notice of intention to
defend physically and swiftly, in order for the application
for
default judgment to be uplifted. The Defendant failed to
serve
and file its notice
as
required in terms
of
Rule 19 of the Uniform Rules.
5.
As
a
result
of
the
Defendant's willful default, an order
was
granted
on
Monday, 18 February 2019."
3.
In summary:
3.1.
The application for default judgment was
presented and filed at the office of the Registrar of this Court on
14 February 2019;
3.2.
The Applicant's legal advisor,
Mr
Matai,
prepared a notice of
intention to defend which was dispatched to the Respondent's attorney
electronically
(via
e-mail)
on 15 February 2019;
3.3.
The aforementioned notice of intention
to defend was not “
filed and
delivered”
as provided for in
Rule 19 of this Court's rules, in that it was not filed at the office
of the Registrar's Court and delivered
at the offices of the
Respondent's attorney of record;
3.4.
The Respondent's attorney
"ignored"
the notice of intention to defend
and nobody informed the Registrar of this Court of the Applicant's
intention to defend the action;
and
3.5.
The Registrar of this Court consequently
entered default judgment in favour of the Respondent on 18 February
2019.
4.
It is evident that Mr Matai laboured
under the misconception that the notice of intention to defend which
was dispatched to the
Respondent's attorney on 15 February 2019 would
suspend the application for default judgment in terms of Rule
31(5){a) of this
Court's rules. Neither Mr Matai, nor the
Respondent's attorney informed the Registrar of this Court of the
Applicant's intention
to defend the action.
5.
On
the evidence before me I am satisfied that:
5.1.
the Applicant intended to defend the
action that was initiated by the Respondent in this Court on 13
December 2018;
5.2.
the Respondent did not provide an
indulgence to the Applicant; and
5.3.
there was no obligation or
responsibility on the Respondent's attorney to alert the Registrar of
this Court in respect of the notice
of intention to defend dated 15
February 2019.
6.
The
Applicant's notice of intention to defend was
"delivered"
after the expiration of the period
specified in Rule 19(2), but
before
default judgment was granted by the
Registrar of this Court.
7.
The
Applicant furthermore submits that two default judgment applications
were filed, which contains various inconsistencies, namely:
7.1.
The dates in respect of the Court stamp
differs on the two applications for default judgment;
7.2.
The Court stamp location is different on
both applications;
7.3.
The date on the Court stamp was hand·
edited without an initial by the Registrar of this Court;
7.4.
A portion of prayer "c" on one
application was deleted without an initial by the Registrar of this
Court; and
7.5.
The application was allegedly filed on
13 February 2019, yet it was executed on 14 February 2019.
8.
The
purpose of this judgment is not to pronounce on the merits, or the
lack thereof, pertaining to the aforementioned discrepancies.
The
discrepancies complained of by the Applicant are unfortunate, but not
decisive. The fact of the matter is that the Applicant
intended to
defend the action which was initiated by the Respondent, but the
Applicant's legal advisor (Mr Matai) did not comply
with the
requirements provided for in Rule 19 of this Court's rules.
9.
RATIO OF THIS JUDGMENT
9.1.
The authorities relied upon by the
Applicant in its heads of argument are trite. This Court has a wide
discretion to rescind or
to set-aside orders which were granted by
default in the absence of one of the parties, including orders which
falls within the
ambit of Rule 42(1)(a).
9.2.
The Respondent submits that the
Applicant does not have a
bona fide
defence, in that the Applicant has
been aware of the dispute since 9 September 2015, when the Respondent
issued a contractor's dispute
notice. Mediation between the parties
was concluded on or about 26 March 2018 and it is therefore, so the
Respondent submits, evident
that the Applicant has no
bona
fide
defence and is playing for
time. The Applicant is, so the argument goes, applying delaying
tactics and attempting to
avoid
the
unavoidable.
9.3.
There might be merit in the Respondent's
argument, but this Court should only
"close
the door for the Applicant"
in
the event that it is crystal clear that the Applicant does not have a
bona fide
defence
and is implementing delaying tactics. On the evidence before me I am
not in a position to make such a finding.
9.4.
I am therefore satisfied that this
applications falls within the ambit of Rule 19(5) of this Court's
rules. The judgment which was
granted by default on 18 February 2019
should therefore be rescinded and set-aside.
10.
COSTS:-
10.1.
The Applicant could have done more to
avoid default judgment. Mr
Matai
laboured under the misconception
that the notice of intention to defend would suspend the process that
was initiated by the Respondent
on 14 February 2019, when the
Respondent submitted its application for default judgment to the
Registrar of this Court in accordance
with the provisions of Rule
31(5)(a) of this Court's rules.
10.2.
In hindsight Mr Matai should have done
more to avoid default judgment being granted against the Applicant.
Hindsight is a perfect
science, but Mr Matai should have filed the
notice of intention to defend at the office of the Registrar of this
Court prior to
the granting of default judgment. The Registrar of
this Court was unaware of the Applicant's intention to defend the
action and
the Registrar therefore granted default judgment in favour
of the Respondent.
10.3.
The Respondent's conduct cannot be
criticized. The Respondent complied with the rules of this Court and
the Respondent should therefore
not be mulcted with the costs
occasioned by this application.
In
the premise I make an order in the following terms:
1.
The
order that was granted by default by the Registrar of this Court on
18 February 2019 is hereby rescinded and set-aside; and
2.
The
Applicant is ordered to pay the costs of this application on the
party and party scale.
F
W BOTES
ACTING
JUDGE OF THE HIGH COURT