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[2018] ZAGPPHC 339
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Diko and Another v Nedbank Limited and Others (76930/ 2015) [2018] ZAGPPHC 339 (28 February 2018)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
(1)
NOT REPORTABLE
(2)
NOT OFINTEREST TO OTHER JUDGES
(3)
REVISED.
CASE
NUMBER: 76930/ 2015
28/2/18
In
the matter between:
NOLUTHO
DIKO
1
ST
APPLICANT
NOLUTHO
DIKO
N.O.
2
ND
APPLICANT
And
NEDBANK
LIMITED
1
ST
RESPONDENT
MASTER
OF THE HIG H COURT
2
ND
RESPONDENT
THE
SHERIFF OF THE HIGH
COURT
3
RD
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
The
applicant approached this court seeking an order in the following
terms:
"1.
That condonation is granted to the applicant, to the extent
necessary, for the bringing
of the application herein when it has
been brought;
2.
That
the default Judgment Order issued by the ... Court on the 17 February
2016 be and is rescinded and set aside;
3.
That
the applicant be afforded a period of 10 days within which to enter
an appearance to defend the action whereaftre the ordinary
rules
pertaining to such proceedings shall apply;
4.
That
the respondent be ordered to pay the costs hereof in the event of the
respondent opposing the application herein, failing which
costs
hereof shall be costs in the divorce action."
[2]
The
reference to the divorce action , must have been a mistake because
the action brought by the respondent, in respect of which
default
judgment was obtained against the present applicants was for payment
of the sum of R1 806 765. 40 with interest and the
special
executability of the mortgaged immovable property of the applicants.
I will accept therefore that what was intended was
that the costs
should be costs in the main action.
[3]
It
is trite that the grant of condonation is a matter of the discretion
of the Court. The party seeking condonation bears the
onus,
to advance a satisfactory and
reasonable explanation for the delay. In considering whether it
should exercise its discretion in
favour of the applicant , the Court
will have regard to the following:
(a)
the
cause of the delay;
(b)
a
reasonable explanation which cover s the entire period of the delay;
(c)
the
nature and defect causing the delay;
(d)
the
effect of the delay in the administration of justice;
(e)
the
prejudice to be suffered by any of the other parties. The list is not
exhaustive;
vide
eThekwini Municipality v lngonyama Trust
[1]
; Van Wyk v Unitas
Hospital
[2]
;
and
Gumede
v Road Accident Fund
[3]
;
Imme/man v Loubser en Ander.
[4]
[4]
In
casu
the· first respondent,
as plaintiff, issued summons against the applicants, as defendants,
which summons was served at the
chosen domicile by affixing to the
principal gate at 2 Pirow Road, Piere Van Ryneveld Ext 2 on 29
September 2015. The summons was
preceded by a registered letter in
terms of s129 remitted to the same address mentioned herein above.
[5]
The
first applicant in her founding affidavit specifically stated that
default judgment was granted on 27 February 2016 and in this
regard,
attached annexure "A" which is the copy of the alleged
order. Examination of the said annexure "A"
reveals that
the default judgment was granted by Strydom AJ on the 25 November
2015, although it bears the registrar's date stamp
of the 17-02-16.
[6]
The
affidavit of the applicants was deposed to on 13 June 2016, almost 6
(six) months and two weeks after judgment was granted.
[7]
The
first applicant was appointed the executrix of the estate of the
second defendant who is now deceased. She contended in her
affidavit
that the first respondent issued summons against them on the similar
facts under case number 45992 / 2012 which action
was never withdrawn
as such she submits that the action under case number 768309 / 2015
is
lis pendent
and
she reserves her right to plead the defence of
res
judicata
against the last mentioned
action.
[8]
She
further alleged that the respondent took default judgment while she
was paying her bond as re-arranged.
[9]
She
further contended that the Letter of Authority issued by the Master
appointing her as the executrix authorised her to deal with
only two
standard bank accounts, as such she had no author y to deal with the
immovable property.
[10]
She
further contends that the immovable property in issue is her primary
residence with her minor children and she would have nowhere
to go
were she to be evicted from this house.
[11]
The
application for rescission was served on the respondent's attorneys
on 13 June 2016. The first respondent filed its notice of
intention
to oppose the rescission application on the 23 June 2016. The
application was subsequently set down on the unopposed
motion roll on
16 November but subsequently removed from the roll on the 21 October
2016 after the first respondent had filed its
answering affidavit on
the 17 October 2016. The first respondent on the 9 December 2016 then
filed its notice of application for
extension of time in terms of
rule 27.
[12]
With
the notice of intention to oppose having been filed on the 23 June
2016, the answering affidavit should have been filed within
15 days
in terms of rule 6{S)(b), which would have been on 14 July 2016. The
answering affidavit was filed on the 21 October 2016,
3 {three)
months later. The explanation proffered by the first respondent for
the delay is that it first had to establish what
happened in the
action instituted under case number 45992 / 2012.lt was only on 6
October 2016 that a final confirmation was received
as to what
happened from Hack Stupel and Ross who handled that particular
matter. According to the latter attorneys, they were
instructed on 15
April 2014 to close their file as the arrears had been settled.
[13]
In
the matter of
Wolgroeirs
Afslaer (Edms) Bpk v Municipaliteit van Kaapstad
[5]
the
Appellate Division sets out the proper approach to the question of
undue delay: first a court must decide whether the proceedings
were
brought within a reasonable time; and, secondly if not, it must
decide whether the unreasonable delay ought to be condoned,
in which
event it must exercise a discretion taking into account all relevant
factors including, but not limited to, prejudice
to the respondent.
[14]
The first respondent’s answering affidavit was three months
late. Its attorneys had to source
information from the previous
attorneys who had closed their file as far back as in 2014. It is
understandable that attorneys would
commission their closed files to
storage. It would take some time to retrieve such files. In my view a
delay of three months to
file the answering affidavit in those
circumstances is not unreasonable and accordingly should be condoned
.
[15]
On the other hand, the applicant was more than six months late in
bringing the application for rescission.
In paragraph 11 of her
founding affidavit she stated that after receiving summons she went
to the first respondent's offices and
arranged for payment of the
arrears and she commenced payments accordingly but the first
respondent took judgment behind her back.
She does not take the court
into confidence as she does not disclose when and how she became
aware of the default judgment. She
deliberately tried to mislead the
Court by stating that the default
judgment
was granted on 27 February 2016
[6]
whereas it was granted on 25 November 2015. She has truncated the
period of her delay in bring the rescission application with
3
(three) months thus reducing her delay to just about 4 (four) months,
which period otherwise would not necessarily be unreasonable.
[16]
The
applicant failed to place facts upon which this Court could have
relied upon to determine whether her delay was reasonable or
excusable. Obviously six month's delay is unreasonable, especially in
the absence of an explanation for such delay, coupled with
her
misstating of facts. She did not file a replying affidavit in which
at least she could have explained the inconsistency regarding
the
dates of the default judgment already referred to herein above.
[17]
The
first respondent has explained that the previous action was withdrawn
due to the fact that the arrears were settled. Therefore
the
contention of the applicant that the matter is
lis
pendent
falls flat because there was
a new cause of action.
[18]
I deem it not necessary to interrogate
the rest of her defences raised because the applicant has not
acquitted herself in respect
of the
onus
resting on her in respect of
condonation , vide paragraph [13]
supra.
[19]
In
the result the application for condonation and the application for
rescission are refused with costs of the opposition.
N.M
. MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT
:
28/02/2018
APPLICANT'
S COUNSEL
:
ADV. N.
ERASMUS
INSTRUCTED
BY
: SHAPIRO
& LEDWABA INC
1
ST
RESPONDENT'S COUNSEL :
ADV. R. RAUBENHEIMER
INSTRUCTED
BY
: VEZI &
DE BEER INCORPORATED
[1]
2014 (3) SA 240
(CC) at 246- 247 paras [24]-[28] respectively.
[2]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477E.
[3]
2007 (6) SA 304
CPD) at 307 at para(7).
[4]
1974 (3) SA 816
(AD) at 820E-H.
[5]
19
78 (1) SA 13
(A) 39-420 .
[6]
Para 4 at paginated page 6 of her founding affidavit.