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[2017] ZAGPPHC 159
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Sekgala v Nedbank Limited (12231/2014) [2017] ZAGPPHC 159 (17 February 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
17/2/2017
CASE
NO: 12231/2014
In
the matter between:
RAMMUTLANA
BOELIE
SEKGALA APPLICANT
And
NEDBANK
LIMITED RESPONDENT
JUDGMENT
MAKHOBA,
AJ
1.
This matter came before
me as an application for rescission of an order granted by Judge
MAKUME whereby the applicant was seeking
leave to appeal which
application was dismissed in the absence of the applicant. From the
beginning of this matter up to date applicant
has been representing
himself. The respondent is opposing this application.
2.
The history of the matter
is as follows:
The matter came before
Judge MAKUME as an opposed application, judgment was reserved and
delivered on 15 September 2015 in the absence
of the applicant. The
said judgment was in favour of the respondent.
3.
On 23 September 2015 the
applicant lodged an application for leave to appeal which was duly
opposed by the respondent. Judge MAKUME's
register Ms Gail Constance
sent an e-mail to both the applicant and the respondent's attorney,
the e-mail indicated to both parties
that the application for leave
to appeal would be heard on 10 November 2015 at the South Gauteng
High Court in Johannesburg. The
reason furnished for the application
to be placed in Johannesburg is that Judge MAKUME was sitting in
Johannesburg during that
period. Both parties confirmed to the
judge's registrar the receipt of the e-mail.
4.
On 10 November 2015
applicant failed to appear in court.
The
judge gave the applicant
an indulgence and postponed the application back to the North Gauteng
High Court Pretoria to the date 14
December 2015. Once again the
judge's registrar informed both parties by e-mail.
5.
On 14 December 2015 in
North Gauteng High Court the applicant failed to appear and the court
proceeded to hear the application in
the
applicant's
absence and dismissed the application for leave to appeal.
6.
Thereafter the respondent
proceeded with a warrant of execution and the sheriff attached the
applicant's property on or about 15
February 2016.
7.
On 3 March 2016 the
applicant served an application for rescission of judgment on the
respondent's attorneys. The applicant's grounds
for rescission are in
a nutshell as follows: -
1.
Applicant alleges that he
was never served with the notice of set down for hearing of the
application.
2.
Applicant argued that the
respondent did not comply with rule 49(1)(d) of the Uniform Rules of
Court read with Chapter 11 of the
practice manual of the North
Gauteng High Court. He submits that such non-compliance with the
rules renders the refusal for leave
to appeal erroneous within the
meaning of rule 42(1)(a).
8.
Applicant further submits
that the hearing of the application for leave to appeal was removed
from North Gauteng to South Gauteng
High Court unprocedurally and
unlawfully without compliance to the law.
9.
In his application
applicant relies on rule 42(1)(a), the common law on rescission
of
judgment,
practice
manual,
Interim
Rationalization
of Jurisdiction of High
Courts Act, 41 of 2001 and the
Superior Courts Act 10 of 2013
.
10.
It is common cause that
the applicant received all correspondence which were sent to him via
the e-mail address nominated by him.
The address is
[...]
.
Furthermore in addressing the court applicant conceded that he
received all correspondent regarding this matter via the e-mail
address nominated by him.
11.
Rule 42(1
)(a)
which is applicable in this matter before me, may
be
utilised in order to vary
or rescind any order or judgment provided that such an order or
judgment is an order or judgment erroneously
sought or erroneously
granted in the absence of any party affected thereby.
12.
The court is empowered in
terms of the common law to rescind any order or judgment obtained on
default of appearance of any party
on sufficient cause shown. The
court's discretion under the common law to rescind or vary any
judgments, extends beyond the grounds
provided for in
rules 31
and
42
.
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13.
An applicant who seeks to
have a judgment or order rescinded or varied
in
terms of the provisions of the common law is also required to show
sufficient cause thereof and the
onus
rests
upon the applicant to do so.
14.
In
Tobol
and Others v LS Group Management Services (Pty) Ltd
1988
(1) SA 639
(WLD) the court
found
on
the
probabilities
that the
applicants had at all
times intended proceeding with their application for leave to appeal
and that the reason why they had not
been represented at the
application for leave was that they had no knowledge of the set down
of the application. The judge refusing
leave to appeal had proceeded
on the basis that notice had been given and that the applicants were
in default. The court hearing
the application for rescission of
judgment set the order refusing leave to appeal aside because it was
"erroneously"
given within the meaning of rule 42(1)(a) of
the Uniform Rules of Court. The court further held that as the matter
fell for rescission
under rule 42(1)(a) it was not necessary to
consider the position under common law.
15.
In my view it is not
necessary for this court to deal with the legality of whether it was
unlawful for Judge MAKUME to set the matter
down for leave to appeal
in South Gauteng High Court instead of keeping the matter at North
Gauteng High Court. Of outmost importance
is that the matter was
finally finalised at North Gauteng High Court where it started.
16.
Explaining his failure to
appear in court applicant m his heads of argument, paragraph 29 he
says the following:
"For the aforesaid,
I was not in wilful default - I simply refused to participate in the
said illegalities and irregularities
- that has always been my mental
attitude."
During the hearing of
this matter appellant reiterated the same explanation in court.
17.
It is clear to
this
court
that
the
appellant
was
aware
of
the
date
of
14 December 2015 when the matter for leave to appeal was heard.
Appellant simply stayed away from court because he believed that
the
court was acting unlawfully and irregularly.
18.
Unlike the applicants in
Topol
and Others v LS Group Management Services (Pty) Ltd supra
the
applicant in this matter before me in my view wilfully and
deliberately failed to appear in court on 14 December 2015. His
explanation for failing to appear in court is totally unacceptable as
he had no right to stay away from court simply because he
strongly
believed that the matter was unlawfully and irregularly set down for
hearing. He should have appeared in court and approached
the Supreme
Court of Appeal if he felt there was any illegality or irregularity
on the part of the judge or the registrar of the
judge. See
Neuman
(PVT) Ltd v Marks
1960
(2) SA 170
(SR).
19.
The court finds that the
application for rescission by the applicant is not made
bona
fide
and
applicant stayed away from court on the wrong reasons because he
wrongly interpreted the law. Thus, therefore it is not necessary
to
consider the position under common law. See
Topal
and Others v LS Group Management Services (Pty) Ltd supra.
I make the following
order:
1.
The application for
rescission of the order granted by MAKUME
J
on 14 December 2015 is dismissed.
2.
Applicant to pay the
costs on attorney and client scale.
_________________
D
MAKHOBA
ACTING
JUDGE OF THE GAUTENG
DIVISION,
PRETORIA
Heard
on
:
8/02/2017
For
the Applicant
:
IN PERSON
Instructed
by
:
For
the Respondent
:
Instructed
by
:
EDERSTEIN & VAN DER MERWE INC
Date
of Judgment
:
17/02/2017