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[2018] ZAGPJHC 675
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Pretorius v Visagie Drilling Contractors (14/30734) [2018] ZAGPJHC 675 (19 November 2018)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 14/30734
In the matter
between:
JANET
PRETORIUS
Applicant
and
VISAGIE DRILLING CONTRACTORS
Respondent
JUDGMENT
CRUTCHFIELD AJ:
[1] The applicant
claimed the rescission of a default judgment granted by the Registrar
of this Court (‘the Registrar’),
on 2 July 2015,
together with condonation for the late filing of the rescission
application (‘the application’).
[2] I was informed
from the bar that the applicant brought the rescission application in
terms of Rule 31(2) (b) of the Uniform
Rules of Court (‘the
Rules’).
[3] The default
judgment (‘the judgment’) was granted against the
applicant
qúa
second defendant, and three additional
defendants jointly and severally the one paying the other to be
absolved, for:
3.1 Payment of the sum of R667 534.19;
3.2 Interest at the rate of 15.5% per annum from 9 May 2014 to
date of final payment; and
3.3 Costs of suit.
[4] Neither party
referred to the applicant’s failure to join the three
defendants liable with the applicant under the judgment,
as parties
to this application.
[5] The judgment
arose from a deed of suretyship (‘the suretyship’) signed
by the applicant.
[6] The respondent,
the judgment creditor, opposed both the claims for condonation and
rescission.
[7] The applicant
failed to file a replying affidavit and heads of argument.
Accordingly, the respondent prepared the court
file and set the
application down for argument.
[8] The respondent
agreed to the applicant furnishing the replying affidavit and heads
of argument at the hearing in order for the
matter to proceed to
finality.
[9] I deal firstly
with the applicant’s claim for condonation of the late filing
of the rescission application.
[10] Rule 31(2) (b)
provides that a party bring a rescission application within twenty
(20) days of learning of the judgment. This
application incepted on 2
March 2018.
[11] The overarching
requirement for condonation of non-compliance with the Rules is that
the condonation sought serves the interests
of justice. A court’s
discretion to grant condonation flows from s 173 of the
Constitution,
[1]
in terms of which a High Court is entitled to regulate its own
process. That discretion includes the power to prevent any abuse
of
the court’s procedures.
[12] Condonation may
be granted upon an applicant demonstrating ‘good cause’,
the elements of which are well known.
Firstly, a reasonable
explanation that allows a court to truly understand how the default
occurred must be furnished. Additionally,
the application must be
made
bona fide
and not merely with the intention of delaying
the judgment creditor in its claim. Finally, the existence of a
bona fide
defence in respect of which the applicant,
prima
facie
, has some prospect of success. A probability of
success is not required, a triable issue will suffice.
[2]
[13] A reckless or
intentional disregard of the Rules justifies the refusal of
condonation.
[3]
[14] The applicant
carried the onus to demonstrate that condonation should be granted.
[15] The applicant’s
version ran along the following lines:
15.1 The applicant admitted that she became aware of the judgment
during July to August 2015, when the sheriff served a writ of
execution upon her and informed her of the judgment.
15.2 At that stage, the applicant had sold and transferred her shares
in Khulisa Piping (Pty) Ltd, (the first defendant in the
action
pursuant to which the judgment arose), to a third party, the Du
Plessis Family Trust IT No TT1477/09, (‘the Trust’),
on
15 March 2015.
15.3 A purported agreement of sale between the applicant and the
Trust represented by one André George du Plessis, allegedly
a
trustee of the Trust (‘the trustee’), was annexed to the
application as proof of the sale and the terms thereof,
(‘the
agreement’).
15.4 Upon learning of the judgment, the applicant contacted the
trustee who undertook to the applicant that the Trust would resolve
the issues underlying the writ of execution and make payment in
settlement of the judgment.
15.5 The applicant did not proffer any proof of this alleged
interaction with the trustee. Nor did the applicant furnish
a
confirmatory affidavit by the trustee in respect of the allegations
that related to him or the Trust.
15.6 The applicant did not set out any basis as to why the agreement
bound the respondent, or, relieved the applicant of her obligations
under the suretyship to the respondent as the applicant contended the
agreement did.
15.7 Notwithstanding, the applicant alleged that her single
interaction with the trustee served to resolve her liability under
the judgment.
15.8 Thereafter, on 5 February 2018, the deputy sheriff served a
Notice to Appear in Court (Section 65A(1)), upon the applicant,
causing her to attend upon her attorneys of record in this
application.
15.9 The applicant alleged that she was
bona fide
in her
belief that the trustee was attending to the judgment, and that she
did not deliberately delay in bringing the application
some two and a
half years after becoming aware of the judgment.
[16] Thus, the
applicant contended that she was entitled to condonation of the late
filing of the rescission application.
[17] The applicant
persistently denied signing the suretyship in her affidavits. The
applicant’s counsel, correctly in my
view, conceded the
applicant’s signature of the suretyship at the hearing.
[18] In so far as
the applicant denied that she knew she was signing a suretyship, the
applicant is identified by name and identity
number in the first
paragraph of the suretyship document below the heading ‘
SURETYSHIP
’
printed in capital letters and underlined.
[19] The applicant
raised various defences in the alternative in respect of the validity
of the suretyship. It is not necessary
for me to deal therewith in
the light of the view I take of this application.
[20] The
respondent’s stance was that the applicant was in wilful
default in respect of both the applications for condonation
and
rescission.
[21] The respondent
demonstrated that the applicant was not wholly forthright in her
averments to this court and that the applicant
did not disclose
certain events material to her alleged bona fides.
[22] The applicant
omitted to mention inter alia, that she signed a
nulla bona
certificate pursuant to an attempted attachment of her movables by
the deputy sheriff on 11 April 2016. The respondent furnished
a
copy of the
nulla bona
certificate evidencing the applicant’s
signature thereto.
[23] Nor did the
applicant disclose that on 29 March 2017, the applicant’s
attorney of record acting on behalf of the defendants
in the action,
requested the respondent to consent to the late filing of an
application for rescission of the judgment. The respondent
refused to
do so. Notwithstanding, yet another year passed before the applicant
launched this application.
[24] The applicant
is obliged, in demonstrating ‘good cause’, to furnish a
‘valid and justifiable’ reason
for her non-compliance
[4]
with the twenty (20) day
[5]
period. The longer the duration of the default the better the
explanation should be. Reckless non-compliance with the Rules
justifies the refusal of condonation.
[6]
[25] The applicant’s
own version of the events subsequent to her acquiring knowledge of
the judgment revealed that she did
nothing, from the time of her
alleged interaction with the trustee during July August 2015, until
February 2018 after the Notice
to Appear in the Section 65(a) court
was served upon her. The applicant’s attorney’s
intervention on 29 March
2017 does not serve to improve the
applicant’s explanation.
[26] Not once did
the applicant take a single step purposed at ensuring that the
trustee was attending to the judgment, as she allegedly
believed he
was doing. That failure alone raises significant doubt in respect of
the applicant’s alleged bona fide belief
that she had resolved
her liability under the judgment.
[27] The applicant
was silent on the steps, if any, taken by her in respect of the
judgment pursuant to the attempted attachment
of her movables when
the writ was reserved on her on 11 April 2016.
[28] The attempted
attachment ought to have alerted the applicant to the fact that the
trustee was not complying with his undertaking,
and, caused the
applicant to take action accordingly. Notwithstanding, the
applicant did nothing for approximately two (2)
years thereafter,
until February 2018.
[29] The
respondent’s acceptance of an offer by another of the
defendants to enter into a payment plan with the respondent
did not
relieve the applicant of her obligations quá surety, to the
respondent as the applicant alleged the acceptance did.
[30] The monetary
amounts under the judgment are significant.
[31] Given those
amounts, it is surprising that the applicant failed to take any steps
whatsoever to ensure that the trustee was
attending to the judgment
as allegedly undertaken by him.
[32] The applicant’s
failure to do anything in respect of the judgment for almost two
years after the attempted attachment
of her movables on 11 April
2016 is a matter of particular concern to me
[33] The applicant’s
inaction in the face of the trustee’s manifest failure to
comply with his undertaking, renders
the applicant’s alleged
bona fide belief that she had resolved her liability under the
judgment (notwithstanding that in
law she had not done so), wholly
improbable.
[34] The applicant
did not proffer any explanation for her inaction, which, in my view,
can justifiably be regarded as a reckless
disregard of the judgment
and its consequences.
[35] Moreover,
despite the respondent’s refusal to agree to condonation during
March 2017, the applicant persisted in failing
to take any steps to
rectify her position for another year thereafter, conduct that the
applicant did not explain.
[36] The applicant’s
supine attitude undermines, significantly so, the applicant’s
contention that she did not deliberately
delay in bringing the
application, and, that she bona fide believed that the trustee was
attending to the judgment.
[37] In the
circumstances, there is no reasonable explanation justifying the
applicant’s launch of the application some two
and a half years
after she became aware of the judgment.
[38] In
Darries
,
[7]
the SCA found that where non-observance of the Rules has been
‘flagrant and gross’, a court should be slow to grant
condonation.
[39] The
Constitutional Court in
Unitas
[8]
considered a delay of eleven (11) months together with the
absence of a reasonable explanation for the delay, as ‘inordinate’.
[40]
Whilst the relief sought in
Unitas
was moot, the prospects of
success in respect of the main application were an insignificant
consideration in the light of the inordinate
delay and the absence of
a reasonable explanation for that delay.
[9]
[41] The extent of
the applicant’s non-compliance is severe. The applicant’s
explanation for that non-compliance
is wholly inadequate. It points
to a reckless disregard of the judgment, and a wilful failure on the
applicant’s part to
cure her default timeously.
[42] Additionally, I
am not persuaded of the applicant’s bona fides in this
application.
[43] Granting
condonation in the face of the applicant’s delay together with
the absence of an adequate explanation for that
delay, would serve to
undermine the respondent’s entitlement to finality of the
litigation, (albeit that the respondent did
not place reliance
thereon at the hearing), and, the administration of justice. In
short, an order of condonation in this matter
would be inimical to
the interests of justice.
[10]
[44] In the light
thereof, I am of the view that this is not a matter in which I should
grant condonation, and I intend to give
an order consistent
therewith.
[45] Given that the
failure of the condonation application is dispositive of the
application in its entirety, it is not necessary
for me to deal with
the rescission application.
[46] The respondent
claimed costs on the attorney and client scale pursuant to the
alleged absence of a triable defence and the
application being an
attempt to delay payment to the respondent.
[47] I have found
that the applicant recklessly disregarded the judgment and that the
applicant was not wholly bona fide in respect
of this application. As
a result thereof, I am of the view that an order for costs on the
attorney and client scale is appropriate
and I intend to grant such
an order.
THE DEPUTY
SHERIFF
[48] The conduct of
the deputy sheriff in this matter remains to be considered.
[49] The deputy
sheriff’s return of service reflects service on the applicant
in terms of Rule 4 (1) (a) (ii), on Mrs Anel
Thomas – the
person in charge of the premises –at 09h43 on 8 September
2014 at […] A Street, Visagie Park,
Nigel. Mrs Anel Thomas,
(the third defendant in the main action) signed for acceptance of the
document and undertook to hand it
to the applicant.
[50] The applicant
provided the address […] A Street, Visagie Park, Nigel, as her
residential address on the suretyship signed
by her, immediately
below her signature. There is no doubt that the applicant resides at
the address.
[51] Notwithstanding
the deputy sheriff’s return, the applicant denied receipt of
the summons and contended (in her founding
papers) that the summons
was served at 81 North Street, Nigel, Khulisa Piping (Pty) Ltd’s
place of business.
[52] However, the
applicant, in reply, furnished a version at variance with that stated
in her founding papers, and, with the deputy
sheriff’s return
of service. The applicant alleged that the summons was served at […]
B Street, Visagie Park, Nigel,
being the residential address of Mrs
Anel Thomas (‘Thomas’).
[53] The applicant
relied in respect of her version in reply, upon an affidavit of Mr
L Nxawe, the deputy sheriff who served
the summons (‘Nxawe’),
and an affidavit of Thomas.
[54] Nxawe stated in
his confirmatory affidavit that he served all four summonses on the
four defendants on Thomas at […]
B Street, Visagie Park,
Nigel. Thomas confirmed as much.
[55] Nxawe’s confirmatory affidavit was problematic. He
did not withdraw or amend the original return of service or
explain
why that return was defective, and declined to explain his sudden
about-face in respect of the service of the summons.
[56] The applicant
drew my attention to the fact that the returns of service rendered by
Nxawe indicated that service in respect
of the first, second and
third defendants was effected on Thomas all at exactly the same time
but at three different addresses.
[57] A sheriff or
deputy sheriff’s return of service constitutes
prima facie
proof of the contents thereof.
[11]
Accurate returns of service are critical to the effective and
efficient functioning of our courts where reliance is placed on them
daily.
[58] Nxawe’s unexplained conduct in furnishing an affidavit
significantly at variance with his original return of service,
without providing an explanation for that variance, serves to
undermine the administration of justice and should not be overlooked.
[59] Accordingly, I intend to request the respondent’s
attorneys of record herein to convey this judgment to the attention
of the South African Board for Sheriffs
[12]
(‘the Board’), together with a request that the Board,
acting in terms of Chapter IV of the Sheriff’s Act, investigate
the conduct of Nxawe referred to in this judgment below the heading
‘The Deputy Sheriff’, and, take whatever steps
the Board
considers appropriate pursuant to their findings.
[60] The
respondent’s attorneys are to convey the judgment and request
to the Board within one month of the date on which
this judgment is
handed down, and, to copy the applicant’s attorneys of record
on the correspondence to the South African
Board for Sheriffs.
[61] By reason of
the foregoing, I grant the following order:
1. The application is dismissed with costs on the scale as between
attorney and client.
2. The respondent’s attorneys of record are requested to convey
this judgment and this Court’s request (referred to
in prayer
2.1 below), within one month of the date on which this judgment is
handed down, to the attention of the South African
Board for
Sheriffs.
[13]
2.1
The South African Board for Sheriffs is requested, in terms of
Chapter IV of the Sheriffs Act:
2.1.1 To investigate the conduct of Deputy Sheriff L Nxawe, deputy
sheriff for the District of Nigel, referred to in this
judgment
below the heading ‘The Deputy Sheriff’; and
2.1.2 To take whatever steps the South African Board for Sheriffs
considers appropriate to the outcome of the investigation.
3. The respondent’s attorneys are requested to copy the
applicant’s attorneys of record on the correspondence to the
South African Board for Sheriffs.
_________________________________________________
A
A CRUTCHFIELD SC
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG.
COUNSEL
FOR THE APPLICANT: Ms K Potgieter.
INSTRUCTED
BY: De Beers Attorneys.
COUNSEL
FOR RESPONDENT: Mr R G Cohen.
INSTRUCTED
BY: Esterhuyze Attorneys.
DATE OF
HEARING: 16 October 2018.
DATE OF
JUDGMENT: 19 November 2018.
[1]
The Constitution of the Republic of South Africa
1996.
[2]
Hassim Hardware v Fab Tanks
(1129/2016)
[2017] ZASCA 145
(13
October 2017) at para 12 (‘
Hassim Hardware’
).
[3]
Van Wyk v Unitas Hospital (Open Democratic
Advice Centre as Amicus Curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at 477E-G (‘
Unitas
’);
Darries v Sheriff, Magistrate’s
Court, Wynberg
1998 (3) SA 34
(SCA)
(‘
Darries’).
[4]
General Accident Insurance Co SA Ltd v Zampelli
1988 (4) SA
407 (C).
[5]
Rule 31(2)(b).
[6]
Darries
note 3
above at 41B-D.
[7]
Darries
note 3
above at 41B-D.
[8]
Unitas
note 3
above at para 33.
[9]
Id.
[10]
Gumede v Road Accident Fund
2007 (6) SA 304
at 307C.
[11]
S 43(2)
Superior Courts Act 10 of 2013
.
[12]
The Board is constituted in terms of the Sheriffs
Act 90 of 1986.
[13]
The Board is constituted in terms of the Sheriffs
Act 90 of 1986.