About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 660
|
|
Kaide Investments (Proprietary) Limited and Others v Firstrand Bank Limited and Others (24028/2014) [2018] ZAGPJHC 660 (13 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 24028/2014
In
the matter between:
KAIDE
INVESTMENTS (PROPRIETARY)
LIMITED FIRST
APPLICANT
MILOSEVICH,
STEVAN SECOND
APPLICANT
MILOSEVICH,
CAROLINE THIRD
APPLICANT
AND
FIRSTRAND
BANK LIMITED FIRST
RESPONDENT
REGISTRAR
OF DEEDS SECOND
RESPONDENT
SHERIFF
OF THE HIGH COURT:
SANDTON
SOUTH THIRD
RESPONDENT
JUDGMENT
TWALA
J
[1]
In this opposed application the applicants seek the following orders:
I.
Condonation
for the late filing of the rescission application;
II.
That
the writ of execution issued under case number 24028/2014 be stayed
pending the outcome of prayer 3;
III.
That
the judgment granted under case number 24028/2014 on the 23
rd
May 2017 be rescinded and set aside;
IV.
That
leave be granted to the applicants to defend the matter;
V.
Order
as to costs, if opposed.
[2]
No costs order is sought against the second and third respondents
unless they oppose this application. Both the second and third
respondents are cited as they are responsible to execute the court
order in as far as the transfer of the property and the execution
of
the warrant is concerned respectively.
[3]
Counsel for the first respondent indicated at the commencement of
this case that the first respondent is not opposed to the
application
for condonation for the late filing of the application for
rescission. Having perused the papers and noting that the
delay in
filing the rescission application was not inordinate, I therefore
granted the application for condonation .
[4]
It is common cause that the first respondent issued summons against
the applicants. The applicant defended the matter and successfully
opposed an application for summary judgment. It is further not in
dispute that the first respondent obtained judgment by default
against the applicants on the 23
rd
of
May 2017.
[5]
At the commencement of the hearing, counsel for the applicants raised
a point in limine which is not contained in the papers
that the first
respondent’s answering affidavit is not properly commissioned.
The deponent is described as an adult male
but the commissioner’s
certificate state that it is a “she”. The commissioner
did not give his name as the signatory
of the certificate as required
by the Act and therefore the answering affidavit is not properly
before the Court and should be
discarded.
[6]
It is contended on behalf of the applicants that the parties agreed
to service of all documents by way of e-mail but the first
respondent
decided to serve the notice of set for the 23
rd
May 2017 on the applicants’ correspondent attorney. The
correspondent attorney denies having received the notice of set down
– hence there was no service, so goes the argument, of the
notice of set down on the applicants and therefore they are not
in
wilful default in not attending court on the 23
rd
May 2017.
[7]
Counsel for the applicants contended further that the applicants are
on record that they were defending this case and have successfully
opposed a summary judgment application. In opposing the summary
judgment application their defence was clearly disclosed. The
applicants insist on their defences as contained in the pleadings and
their opposition to the summary judgment application. On the
10
th
of May 2017 the first respondent served its amended declaration and
the applicants were entitled to object to the amendment or
file a
consequential amendment within the time frames prescribed by the
rules of court. However default judgment was granted before
the
expiration of the time frames prescribed by the rules of court. The
default judgment was therefore granted prematurely and
that
prejudiced the applicants from exercising their rights in terms of
the rules of court.
[8]
Counsel for the first respondent contended that the point in limine
raised by the applicants is an ambush on the first respondent
as it
does not appear anywhere in the applicants’ founding papers.
Counsel for the applicants did not even have the courtesy
to inform
him about the point in limine nor does it appear on the applicants’
heads of argument. As such the court should
dismiss the point in
limine.
[9]
It is further submitted by counsel for the first respondent that
service of the notice of set down on the correspondent attorney
for
the applicants is proper service as prescribed by the rules. That the
parties agreed on service by e-mail, so the argument
goes, was merely
for convenience and does not invalidate service on the correspondent
attorney. In terms of the rules of court,
it is submitted for the
first respondent, a party is entitled to amend its pleadings any time
before judgment and the applicants
were entitled to state their
consequential defence due to the amended pleading in their founding
affidavit. The applicants instead
chose to stick to the defences
contained in the pleadings which are not bona fide defences as
required in rescission applications.
Therefore, so it is contended,
the amendment did not prejudice the applicants in anyway and the
application for the rescission
of judgment should be dismissed.
[10]
It is trite that, for an applicant to succeed in an application for
the rescission of judgment, it must establish to the satisfaction
of
the Court that it was not in wilful default and that it has a bona
fide defence to the claim of the respondent which is good
in law.
[11]
It is trite that in motion proceedings the parties must stand and
fall by their papers. I agree with counsel for the respondent
that
the point in limine raised by the applicants does not appear anywhere
in the papers including in their heads of argument.
It is undesirable
for a party to take the other party by surprise and this point in
limine appears to be an after-thought by the
applicants. It is my
respectful view therefore that, in the interest of justice, the point
in limine falls to be dismissed.
[12]
Service of the pleadings on the other party is an important element
of the litigation process. It is intended to inform the
other party
of what steps are being taken and not to take it by surprise or
ambush. The rules of court prescribe the forms service
should take.
But where the parties agree to a particular form of service of the
pleadings, it is expected of the parties to continue
serving the
processes on each other in that fashion. Should one party decide not
to adhere to the agreed form of service, then
it should clearly
inform the other party that it is no longer continuing with the
agreed form of service.
[13]
I find myself in agreement with the applicants that they were not in
wilful default in not attending the hearing of this matter
on the
23
rd
May 2017. Although the first respondent served the notice of set down
on the correspondent attorney for the applicants, it was
bound by the
agreement to serve the notice of set down electronically on the
attorneys for the applicants but it failed to do so.
It is my
considered view therefore that on this ground alone the application
for rescission of judgment should succeed.
[14]
It is on record that it has been the intention of the applicants to
defend this case from the beginning. The applicants successfully
resisted summary judgment and filed their plea and counter-claim in
the process. The defence for the applicants was found to be
good in
law by the court when summary judgment was successfully resisted and
the applicants testified that they still stand by
the defence
enunciated in the pleadings. This defence has not been tested in the
ensuing trial for the applicants did not attend
the trial.
[15]
It is my respectful view therefore that the applicants have met the
requirements for the judgment by default entered against
them to be
rescinded.
[16]
In the circumstances, I make the following order:
I.
The
late filing of the application for rescission of judgment is
condoned;
II.
The
judgment granted on the 23
rd
May 2017 under case number 24028/2014 is rescinded and the normal
dies for the filing of pleadings are resumed;
III.
The
warrant of execution issued under case number 24028/2014 is suspended
pending finalisation of this case;
IV.
Costs
to be costs in the course.
_________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 3 December 2018
Date
of Judgment: 13 December 2018
For
the Applicant: Adv.P.J. Coetzee
Instructed
by: Claudia Privato Inc
TEL:
086 883 7407
For
the Respondents: Adv. L van Rhyn van Tonder
Instructed
by: Lowndes Dlamini Inc
TEL:
011 292 5777