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2017
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[2017] ZALMPPHC 32
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Mhlarhi v Tzaneen Staal Industries (Edms) Bpk (HCA21/2017) [2017] ZALMPPHC 32 (27 October 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: HCA 21/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
27
October 2017
In
the matter between:
TINTSWALO
LEAH
MHLARHI
APPELLANT
and
TZANEEN
STAAL INDUSTRIEe (EDMS)
BPK
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This appeal raises a question whether a summary judgment granted in
the Magistrate’s Court is capable of being rescinded
in terms
of Section 36(a) of the Magistrate’s Courts Act 32 of 1944,
read with Rule 49 of the Magistrate’s Courts Rules.
The
judgment concerned was granted in the Magistrate’s Court for
the district of Tzaneen held at Tzaneen, the Respondent
herein being
the Plaintiff and the Appellant herein being the Defendant. For the
sake of convenience I will continue to refer to
the parties as the
Plaintiff and the Defendant respectively.
[2]
The Plaintiff had issued summons against the Defendant claiming a
total amount of R 222 477.08 (in three separate claims)
being in
respect of arrear rentals and damages arising out of breach of a
lease contract. Upon service of summons the Defendant
instructed her
previous attorneys, MS Maponya Attorneys of Tzaneen who entered
appearance to defend the action on 19 September
2016. On the 21
September 2016 the Plaintiff’s attorneys served and filed an
application for summary judgment.
The
Defendant’s then attorneys, MS Maponya Attorneys failed to
serve and file Opposing Affidavit in order to resist the application
for summary judgment.
[3]
On the date of the hearing of the application for summary judgment,
on 27 October 2016, an attorney from MS Maponya Attorneys
Mr Moloto,
appeared on behalf of the Defendant without having filed opposing
papers. He asked for a postponement which was refused
and summary
judgment was granted with costs.
[4]
The Defendant terminated the mandate of MS Maponya Attorneys and
instructed the present attorneys of record, Bosman Attorneys
of
Polokwane to act on her behalf. On the 12 December 2016 Bosman
Attorneys made an application for rescission of the summary judgment
granted on 27 October 2016. The application for rescission of the
judgment was heard on 3 February 2017. The application was not
heard
on the merits but was dismissed on a point
in
limine
raised
by Plaintiff’s attorney.
[5]
In its point
in limine
the Plaintiff contended that at the
hearing of the application for summary judgment the Defendant was
represented by her previous
attorney, Mr Moloto and therefore the
judgment granted against her was not a default judgment for purposes
of Rule 49.
Plaintiff
submitted furthermore that the judgment of the 27 October 2016 is not
one which is capable of being set aside in terms
of Rule 49.
[6]
The following recording appears from the Court
a quo
record of
the 2 February 2017 when the application for rescission of the
summary judgment was dismissed:
“
Point in
limine is upheld with costs. Application for rescission of judgment
cannot be said to be granted by default as Mr Moloto
appeared for the
Respondent on 27 October 2016 in the application for Rule 14”
[7]
In the present appeal the Appellant’s contention is that since
no opposing papers to resist the summary judgment had been
filed, in
effect the summary judgment was unopposed and the judgment was thus
granted by default. That the summary judgment is
subject to
rescission of judgment.
[8]
This appeal, as I have already said, is against the finding of the
Magistrate that the summary judgment granted in the Magistrate’s
Court is not capable of being rescinded in terms of Section 36(1)(a)
of the Magistrate’s Courts Act, read with Rule 49 of
the
Magistrate’s Court Rules.
[9]
The relevant portion of Section 36(1)(a) of the Magistrate’s
Court Act 32 of 1944 read as follows:
“
36(1) The
Court may, upon application by any person affected thereby………
(a)
Rescind
or vary any judgment granted by it in the absence of the person
against whom the judgment was granted”
[10]
It is immediately to be noticed that the power of rescission provided
for in Section 36(1)(a) is not in any way limited in
its application
to any particular type of judgment, provided only that it was “in
the absence of” a person concerned
that the judgment was
granted. There is in other words no suggestion in Section 36(1)(a)
that the remedy is limited to cases of
default judgments granted in
the absence of such a person, and that it excludes summary judgment
granted in the absence of such
a person. On the contrary, the
interpretation of the express wording of Section 36(1)(a) makes it
clear that the Magistrate’s
Court’s power to rescind
judgments granted in the absence of the person concerned includes the
power to rescind summary judgments.
[11]
It is trite that the power of rescission provided by Section 36(1)(a)
of the Magistrate’s Courts Act, read with Rule
49 of the
Magistrate’s Courts Rules, is applicable to summary judgments
granted in the absence of a party such as the Defendant
in this case.
See:
Sundra
Hardware v Mactro Plumbing
1989 (1) SA 474
(TPD) at 478 E
.
In
the circumstances, the Court
a
quo
was wrong in ruling that the summary judgment in the present case was
not capable of being the subject of an application for rescission
of
judgment. The Court
a
quo
should
have dismissed the point
in
limine
and
proceeded to hear the application for rescission on its merits.
[12]
A further question that arises in this appeal is the following:
Whether
a defendant who failed to file opposing affidavit in a summary
judgment application is in default even if his legal representative
or himself is in attendance at Court.
It
is common cause that the Defendant herself did not attend Court on 27
October 2016 when summary judgment was granted. However
her legal
representative, Mr Moloto was in attendance though he had not filed
an opposing affidavit of the Defendant. Was the Defendant
in default?
[13]
In
Morris v Autoquip (Pty) Ltd
1985 (4) SA 398
(WLD)
it was held that: where the Defendant files an affidavit in
opposition to an application for summary judgment, the Court is not
entitled to ignore such affidavit and it cannot be said that the
Defendant is in default because he (or his Counsel) fails to appear
when the application is heard.
Where
summary judgment is granted under these circumstances there is,
accordingly no “default” and the Defendant cannot
apply
for rescission of the judgment on such ground.
[14]
Equally in
First
National Bank of SA Ltd v Myburgh and Another
2002 (4) SA 176
(CPD)
it was held that where a Defendant in summary judgment proceedings is
in default of appearance, but has nonetheless filed opposing
papers,
the Court is obliged to consider the matter on the merits before it,
in the absence of the Defendant.
[15]
The principle enunciated in the abovementioned decided cases in [13]
and [14] above is to the effect that where opposing papers
have been
filed in an application for summary judgment, there can be no
“default” even if the Defendant or the legal
representative is absent from Court.
It
is my view that by parity of reasoning, where opposing papers have
not been filed there is a “default” even if the
Defendant
or the legal representative is present at Court.
[16]
It is clear from the principles laid down in the abovementioned
authorities that what is important in opposing a summary judgment
is
the filing of opposing papers. The presence or attendance of a
Defendant or Counsel at Court without opposing papers is tantamount
to a default. Mr Moloto’s attendance at Court on 27 October
2016 was immaterial since he could not have given evidence from
the
bar.
For
the Court
a
quo
to hear him on the merits of the application there should have been
an opposing affidavit filed. Failure to file an opposing affidavit
constitutes default for purposes of an application for rescission of
judgment.
[17]
The Court
a
quo
did
not hear or consider the application for rescission of the summary
judgment on the merits. The application was dismissed on
a point
in
limine
.
Consequently this Court, siting as a Court of appeal cannot enter
into the merits of the application which the Court
a
quo
never
entertained. To do so will be going outside the scope of the appeal
before us.
[18]
This Court will however exercise its inherent powers to set aside the
decision of the Court
a
quo
and
allow the case to proceed on the merits in the Court
a
quo.
In
this regard the case I am referring to is the application for summary
judgment.
[19]
Upon setting aside the judgment and order of the Court
a quo
granted on 2 February 2017 regarding the point
in limine,
the
Plaintiff’s application for summary judgment will be
resuscitated and become pending before the Court
a quo.
In
the interest of justice the Defendant should therefore be given an
opportunity to file an opposing affidavit in opposition to
the
pending application for summary judgment. The Court
a
quo
is
directed to proceed to hear the opposed application for summary
judgment.
[20]
Accordingly, the following orders are made:
1.
The appeal is upheld with costs.
2.
The order made by the Magistrate is set aside and is substituted by
the following:
“
The
point
in
limine
is dismissed with costs”
3.
The matter is referred back to the Magistrate Court in order that he
may deal with the summary judgment application.
4.
The Appellant is directed to serve and file her opposing affidavit in
opposition to the application for summary judgment within
20 (twenty)
days of the granting of this order.
________________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION,
POLOKWANE
I
agree,
_________________________
M
S SIKHWARI
ACTING
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on : 13 October 2017
Judgment
Delivered : 27 October 2017
For
Appellant: N Bosman
:
Bosman Attorneys
Polokwane
For
Respondent: Adv. I A Van den Ende
Instructed
by: Stewart Maritz Basson
c/o
Franco Marx Attorneys
Polokwane