About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 15
|
|
Moletsane v Hepburn (5479/2014) [2017] ZAFSHC 15 (2 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 5479/2014
In
the application between:
KETSO
BERNARD MOLETSANE
Applicant
and
WESSELS
PETRUS HEPBURN
Respondent
JUDGMENT
BY:
C REINDERS, J
DELIVERED
ON:
2 FEBRUARY 2017
[1]
The applicant, Mr Ketso Bernard Moletsane (Mr Moletsane) moves
firstly for condonation for the late filing of the application
for
rescission of a judgment entered against him, and secondly for
rescission of the said judgment with leave thereafter to file
further
pleadings. The application is opposed by the respondent, Mr Wessels
Petrus Hepburn (Mr Hepburn).
[2]
It is common cause that a contract of sale was concluded on 15 August
2014 between Mr Hepburn as seller and Mr Moletsane and
Mr Manuel Jose
Serguro Aldeia as buyers. In terms of the contract Messrs Aldeia and
Moletsane purchased an enterprise which manufactures
and sells
clothing. The purchase price was R 650 000.00, payable by means
of a deposit of R 100 000.00 (paid by Mr Moletsana
on date of
signing the agreement), and thereafter the remaining purchase price
had to be paid in three instalments.
[3]
On the 1
st
of October 2015 judgment by default was granted against Mr Moletsane
(as second defendant) and he was ordered amongst others to
pay the
plaintiff, Mr Hepburn, R550 000,00 together with interest.
Further orders were granted by Moloi J and applicant
moves for
rescission of the whole of the judgment.
[4]
As to the reasons for his failure to defend the matter, the applicant
avers that he was totally unaware of the action until
after judgment
had been granted. The summons was served at the domicilium of his
co-defendant Mr Aldeia and the court order came
to the spouse of Mr
Moletsane’s attention for the first time on 15
th
November 2015. Mr Moletsane hereupon
contacted his attorney Mr Phalatsi. The application for rescission
was eventually issued on
2
nd
August 2016.
[5]
Correspondence was exchanged between Mr Moletsane’s attorneys
and that of Mr Hepburn, but the attempts by Mr Moletsane’s
attorney to persuade Mr Hepburn to rescind the judgment was without
success. Some of the correspondence, so Mr Moletsane alleges,
was not
attended to immediately as his attorney acted as a judge of the High
Court during that period.
[6]
It would suffice to say that Mr Moletsane’s explanation for his
failure to defend the matter and, having taken notice
of the
judgment, his reaction thereafter is not seriously disputed. Ms
Olivier on behalf of Mr Hepburn did however take issue with
the
explanation by Mr Moletsane for the delay between 18 February and 18
May 2016 being that his attorney was acting as a judge
in this
division, describing it as “highly unsatisfactory” as
there should have been reaction by the said attorney.
However, it is
not disputed that Mr Moletsane did react swiftly by approaching his
attorney within 4 days after the default judgment
came to his
attention (via his spouse) in order to attend to the matter.
Hereafter correspondence was exchanged between the
attorneys. On the
explanation tendered by Mr Moletsane I am not of the view that the he
was in wilful default.
[7]
Mr Moletsane avers that he has a
bona
fide
defence on the merits. It is not
necessary to deal with the defences listed. Suffice it to say that he
avers that some of the equipment
were not in a working condition and
that Mr Hepburn breached various terms of the agreement. It is not
appropriate (nor can I)
adjudicate upon the merits of these defences.
That has to be done at the main trial.
[8]
The minimum that an applicant must show is that his defence is not
patently unfounded and that it is based upon facts which,
if proved
at the main trail, would constitute a defence (as per Brink, J)
Vide:
Grant v Plumbers (Pty) Ltd
1949
(2) SA 470
(O) at 476-7.
[9]
It has been held that the tendency of the court is to grant relief
where an applicant:
(i)
Has given a reasonable explanation for his delay;
(ii)
The application is not made with the object of delaying the claim;
(iii) There
has not been reckless or intentional disregard for the court rules;
(iv) The
application is clearly not ill founded and prejudice could be
compensated by an appropriate order
as to costs.
Vide:
Smith, N.O. v Brummer, N.O.
1954
(3) SA 352
(O) at 358 A.
Furthermore,
such explanation for delay must be explained sufficiently in order
for the court to comprehend how the default really
came about and to
assess the applicant’s conduct and motives.
Vide
:
Van Wyk v Unitas Hospital and Another
(Open Democratic Advice Centre As
Amicus
Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC
)
at par [22];
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2)
SA 345
(A) at 353 A.
[10]
In light of the above facts I am satisfied that Mr Moletsane has met
the requirements for both the condonation for the late
filing of this
application as well as the setting aside of the judgment
granted by default. Mr Williams on behalf of Mr Moletsane
submitted
that the dispute between the parties should be ventilated fully. I am
in agreement with him. It would be inappropriate
not to allow the
applicant to have his version ventilated in a court of law. Refusing
rescission is final for Mr Moletsane. However,
should I grant the
application, Mr Hepburn would have the full opportunity of proving
his case at the trial.
[11]
Regarding costs, I am not of the view that opposition was
unreasonable. The applicant asks for an indulgence and in the
exercise
of my discretion regarding an appropriate cost order I am
satisfied that he should bear the costs of the application.
[12]
Accordingly the following orders will issue:
1.
Condonation is granted for the late filing
of the rescission application.
2.
The default judgment granted on 1 October
2015 under case number 5479/2014 is set aside in its entirety.
3.
The applicant to file a notice to defend
under case number 5479/2014 within 7 (seven) days of this order,
where after the further
exchange of pleadings are to be done in terms
of the Rules of Court.
4.
The applicant to pay the costs of the
application.
________________
C.
REINDERS, J
On
behalf of the applicant:
Adv. A. Williams
Instructed by:
N.W. Phalatsi & Partners
BLOEMFONTEIN
On
behalf of the respondent: Adv. I.
Olivier
Instructed by:
Leon Marais
Attorneys
c/o Kramer Weihmann
& Joubert Inc
BLOEMFONTEIN