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[2016] ZALMPPHC 5
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Tshikundamalema v Mudau (HCA08/2015) [2016] ZALMPPHC 5 (10 June 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
Case
No: HCA08/2015
DATE:
10 JUNE 2016
In the matter
between:
TSHIKUNDAMALEMA
VHUTSHILO
JANE
..............................................................
APPELLANT
And
MUDAU
KHAMUSI
SYDNEY
.....................................................................................
RESPONDENT
CORAM
: JUDGE PRESIDENT E.M MAKGOBA, F.E MOKGOHLOA JAND M MADIMA AJ
JUDGMENT
M
MADIMA AJ
[1]
The Appellant appeals against the Judgment of Tlhapi J,
who dismissed the Appellant’s application for rescission of a
Judgment or order granted by Makhafola J in case number 405/2011,
sitting in the High Court of South Africa, Limpopo Local Division,
Thohoyandou on the 23
rd
day of September 2014. The Court
a
quo refused
the Appellant’s application for leave to
appeal.
On
petition to the Supreme Court of Appeal, Appellant was granted leave
to appeal to the Full Court of this Division.
[2]
The Appellant and respondent (hereinafter referred to as “the
parties”) were involved in a love relationship out
of which two
minor children, aged 7 and 4 years respectively, were born. The
relationship was terminated in 2011.
[3]
Prior to termination of the love relationship, the parties concluded
a ‘Partnership Agreement’ (agreement) with
the aim of
acquiring and selling houses. That was done on the 02
nd
day of August
2006.
[4]
The above agreement and an immovable property known as Erf 1358,
situated at Bendor Extension 1 P, became the subject matters
of a
dispute in a civil matter instituted by the Respondent against the
Appellant in the Local Division, Thohoyandou. In
the aforesaid
matter the Respondent prayed for,
inter alia
, dissolution of
the partnership and sale of Erf 1…. in liquidation of the
partnership.
The
Appellant in her plea specifically traversed and denied the averments
by Respondent and further averred,
inter
alia
, that, in law, there never ever
existed such a partnership and that, Erf 1358 is her own property,
not forming part of the purported
partnership.
[5] The above Erf
1….. is the property where the Appellant and the above minor
children are staying.
The
disputes, illustrated above had to be ventilated fully in court but
for the default judgment granted on 23
rd
day of September 2014.
[6]
According to papers filed of record, the appeal turns on Rule 42 (1)
(b) and (c) of the Uniform Rules in that the Appellant
stated that
‘…
a
request to the Honourable Court is made on the basis of a
patent
error
in
the Court having granted the said order or …the Honourable
Court granted the order as a result of a
mistake
common
to the parties
…’
(
My
underlining
)
[1]
.
By
all accounts, I do not find the Appellant’s arguments
constrained to above grounds of rescission to be sustainable. A
proper reading of record reveals a host of glaring, disquieting and
inherent irregularities and which, in my view, are deserving
of this
Court’s intervention. The Appellant slightly touched on those
irregularities. I shall deal with these irregularities
at length
later on.
[7]
As arguments advanced further before us, we asked Counsel for the
Respondent whether this Court can, in terms of Rule 42 (1)
(a) and in
light of the existing irregularities,
mero
motu
, rescind the default judgment. The
answer was in the affirmative.
[8]
Rule 42 (1) (a) provides:
‘
(1)
The Court may, in addition to any other powers it may have, mero
motu, or upon the application of any party affected, rescind
or vary:
(a)
An order or judgment erroneously
sought or erroneously granted in the absence of any party affected
thereby
…’
The
phrase ‘erroneously granted’ was authoritatively
discussed in
Nyingwa
v Moolman N.O
[2]
where the court said:
“
It
therefore seems that a judgment has been erroneously granted if there
existed at the time of issue a fact of which would have
precluded the
granting of the judgment and which would have induced the judge, if
he had been aware of it, not to grant the judgment.”
(
See
also
Naidoo
v Matlala N.O and others)
[3]
[9]
Thus it is apposite to specifically deal with the irregularities in
order to establish whether they (irregularities) would have,
if known
by the Judge at the time of judgment, impeded the granting of such
(default) judgment:
9.1.
The Respondent’s Attorneys (Mathivha Attorneys) went and
obtained default judgment, forming the subject matter of this
appeal
on the 23
rd
day September 2014 without serving a notice of set down on the
erstwhile Attorneys (Makwela & Mabotja Attorneys) of the
Applicant.
[4]
9.2.
On the 23
rd
day of September 2014, Booyens Du Preez &
Boshoff Inc (Respondent’s erstwhile Attorneys), were still
attorneys of record
of the Respondent. The Respondent’s
erstwhile Attorneys only withdrew as Attorneys of record for the
Respondent on the 26
th
day of September 2014.
It
stands to reason that on the day of seeking and obtaining default
judgment by the Respondent’s Attorneys, as indicated
in para
9.1 supra, the erstwhile Attorneys of the Respondent were still on
record as his Attorneys.
It
follows that only them (Respondent’s erstwhile Attorneys) or
any other legal representative acting on their brief had the
right to
appear and obtain default judgment for the Respondent.
I
am alive to the averments by the Respondent, justifying his Attorneys
actions but I find the explanation not to be persuasive.
[5]
In
civil proceedings, an Attorney only ceases to be a legal
representative of a party upon filing of a written notice of
withdrawal
to all interested parties.
9.3.
On the date of obtaining the default judgment, the Respondent’s
Attorneys served notice of appointment on the Respondent’s
erstwhile Attorneys. They, nevertheless, did not serve such a notice
on the Appellant’s erstwhile Attorneys.
9.4.
On the 11
th
day of September 2014 the Respondent’s Attorneys received
instruction from the Respondent. On the 12
th
day of September 2014 the Respondent’s Attorneys prepared a
settlement agreement for the parties but in the absence of the
Appellant and/or her erstwhile Attorneys.
At
that stage, the parties had not jettisoned their legal
representatives. However the Respondent was the only person who
enjoyed
the use of legal services. In my view the settlement
negotiations were not done at arms length. The Respondent had an
upper hand.
9.5.
Between the period 12
th
day of September ( date of preparing settlement agreement) and 23
September 2014 ( date of obtaining judgment) there lapsed eight
(8)
days within which a reasonable person would have expected
Respondent’s Attorneys to draw the attention of
Appellant’s
erstwhile Attorneys to the settlement agreement
before proceeding to have it made an order of Court.
[10]
It is crystal clear that the above acts constituting irregularities
occurred prior to the granting of default judgment. I am
of the view
that the above irregularities were not known by Makhafola J before he
granted the default judgment.
I
am also of the view that, but for lack of knowledge of the above
irregularities, the Judge would not have granted default judgment.
Thus,
I am persuaded that the judgment was erroneously granted.
[11]
Once the court reaches a finding that the judgment or order was
erroneously granted, it should proceed to rescind or vary the
judgement without conducting further inquiry.
(
Tshabalala
v Peer
[6]
applied
in
Topol
and others v L S Group Management Services (Pty) Ltd
.
[7]
[12]
The default judgment stands to be set aside and in view of the order
I have proposed hereunder, the consequences of the default
judgment,
such as sale of Erf 1358 situated at Bendor extension 18 Polokwane in
execution of judgment, have to be set aside too.
[13]
In the result I propose the following order:
1.
The appeal is upheld.
2.
That the judgment of Tlhapi J in case no: 405/2011
is set aside and substituted with the following :
“
The
application for rescission of judgment or order by Makhafola J on 23
September 2014 is granted. The costs shall be costs in
the cause.’’
3.
Each party shall pay his or her own costs of this
appeal.
M.
MADIMA
ACTING
JUDGE OF LIMPOPO DIVISION OF THE HIGH COURT
I
agree and it is so ordered
E.M
MAKGOBA
JUDGE
PRESIDENT OF LIMPOPO DIVISION OF THE HIGH COURT
I
agree
F.E
MOKGOHLOA
JUDGE
OF LIMPOPO DIVISION OF THE HIGH COURT
APPEARANCES:
For Appellant
: M.S SEBOLA
Instructed by
: NCHUPETSANG ATTORNEYS
For Respondent
: T.W.G. BESTER SC
Instructed by
: MATHIVHA ATTORNEYS
Hearing Date
: 27 MAY 2016
Judgment Date:
10 JUNE 2016
[1]
Page
7 at para 5.1
[2]
1993(2)
SA 508 (TK) at 510g
[3]
2012
(4) SA 143
(GNP) at 153
[4]
See
Rule 41(4) provides that: ‘Unless such proceedings have
been withdrawn, any party to a settlement which has been
reduced to
writing and signed by the parties or their legal representatives but
which has not been carried out, may apply
for judgment in terms
thereof on at least five days’ notice to all interested
parties.’
[5]
At para 32 of answering affidavit Respondent said: “It is true
that a formal notice of withdrawal by Booyens du preez and
Boshoff
Inc was served and filed on the 26
th
September 2011. However, as early as the early September 2011, the
firm Booyens du preez and Boshoff Inc
had
indicated that they were no longer representing me.’’
[6]
1979 (4) SA 27
(T) at 30D
[7]
1988
(1) SA 639
(WLD) at 650 D-J