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[2016] ZAFSHC 30
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du Plooy v Oos Vrystaat Kaap Bedryf Beperk (5277/2014) [2016] ZAFSHC 30 (15 February 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 5277/2014
In the
matter between
PIETER
WILLEM DU PLOOY
APPLICANT
and
OOS VRYSTAAT KAAP
BEDRYF BEPERK
RESPONDENT
CORAM:
NAIDOO, J
JUDGMENT:
NAIDOO, J
HEARD ON:
19 NOVEMBER 2015
DELIVERED
ON:
15 FEBRUARY 2016
[1] This is an
application for condonation for the late filing of a Replying
Affidavit by the applicant (defendant in the main action)
in an
application for rescission of default judgment, which was granted
against him on 4 February 2015. The application for rescission
of th
e
judgment was also before me for adjudication. Mrs L Collins appeared
for the applicant and Mr SJ Reinders appeared for the respondent
(plaintiff in the main action). For ease of reference I shall refer
to the applicant as the defendant and the respondent as the
plaintiff.
BACKGROUND
[2]
The plaintiff issued summons against the defendant for payment of the
sum of Eight Hundred and Sixty Five Thousand Nine Hundred
and Twenty
Two Rand and Forty Five Cents (R865 922.45), together with interest,
certain insurance premiums and costs. The summons
was properly served
on 4 December 2014 at the address chosen by the defendant. The
defendant did not defend the action, and, consequently,
judgment by
default was granted against him on 4 February 2015. On 20
August 2015, he launched an application for rescission
of default
judgment, which the plaintiff opposed. The defendant filed a Replying
Affidavit, out of the time period allowed by the
Rules, hence the
application for condonation in respect thereof, which is also opposed
by the plaintiff.
LEGAL
FRAMEWORK
[3] Rule 27(1) of the
Uniform Rules of Court provides:
“
In
the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order
extending or abridging any time prescribed by these rules or by an
order of court or fixed by an order extending or abridging any
time
for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such terms as to it
seems
meet”
The
requirement of “good cause” to be shown is repeated in
sub-rule (3) which provides that
“
The
court may, on good cause shown, condone any non-compliance with these
rules”.
These
two sub-rules of Rule 27 provide the court with a wide discretion to
condone non-compliance with the Rules. It is clear, however,
that an
important safe guard is that good cause must be shown.
[4]
Rule 31, Rule 42(1) and the common law make provision for the
rescission of a judgment. Rule 31(2)(b) provides that
“
A
defendant may within twenty one days after he or she has knowledge of
such judgment apply to court on notice to the plaintiff
to set aside
such judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as to it seems
meet”.
Rule 42 makes provision for the setting aside of a
judgment which is erroneously granted, where it contains an
ambiguity, patent
error or omission, or where it is obtained as a
result of a mistake common to the parties.
THE
EVIDENCE
[5] I
will deal first with the application for condonation for the late
filing of the defendant’s Replying Affidavit. In essence,
he
alleges that his previous attorney of record, Mr Jordaan, withdrew as
attorney of record without his being aware of it, on the
very day
that he ought to have filed his Replying Affidavit (5 October 2015).
In spite of speaking to Mr Jordaan telephonically
after the latter
withdrew from the matter, Mr Jordaan did not mention this fact and
said that the defendant need not attend court
for the hearing of the
rescission application. It was only subsequently on 23 October 2015
that he became aware of Mr Jordaan’s
withdrawal. After the
involvement of his current attorney, the parties agreed to postpone
the matter from 29 October 2015 to 19
November 2015, for the purpose
of hearing this application and the rescission application. At this
stage, it is only necessary
for this court to decide whether it will
condone the late filing of the Replying Affidavit. The defendant’s
reasons for the
late filing are somewhat thin, as pointed out by the
plaintiff in its Opposing Affidavit. However, it is still within this
court’s
discretion to allow such late filing. In my view, in
order to be able to fairly assess the application for rescission, the
contents
of and annexures to the Replying Affidavit are relevant. It
is for this reason that I condone the late filing of the Replying
Affidavit
and allow it into the record. I will deal with the contents
thereof when considering the application for rescission.
[6] This court is tasked
with determining whether the defendant has satisfied all the
requirements necessary for the setting aside
of the judgment in this
matter. For the sake of completeness, I set our hereunder the relief
sought in the rescission application:
“
1.
That the order given against the Defendants (sic) under this case
number on 4 February 2015 be rescinded;
2.
Condonation for failure to adhere to any of the Court Rules;
3.
Condonation for the lateness in launching this application should the
Honorable Court find that the Applicant ought
to have been aware of
the judgment prior to14 August 2015;
4.
That any warrants in execution or attachments in terms of this order
be set aside;
5.
Costs of the application be granted against the Respondent on
attorney and client scale should the respondent
oppose the
application;
6.
That the applicant be granted further and/or alternative relief.”
The
defendant alleges that the application for rescission is based on the
judgment being void
ab initio
,
in that the plaintiff did not comply with
section 130
of the
National
Credit Act 34 of 2005
.
Rule 42
does not refer to judgments which are
void, but allows a court to “correct expeditiously an obviously
wrong judgment or order”
(See
Erasmus, Superior Court Practice, page B1-306G)
,
where such judgment is erroneously sought or erroneously granted, or
where the other jurisdictional facts, alluded to above, exist.
The
expression “void
ab origine
”
is used in the
section 36(1)(b)
and
Rule 49(8)
of the
Magistrates’
Courts Act 32 of 1944
. If a generous interpretation were to be given
to the defendant’s assertion that the judgment is “void
ab initio
”
in this matter, it can perhaps be dealt with, within the meaning of
“erroneous”.
Rule 31
does not, in my view, apply to the
present application, as the defendant ought to have brought the
rescission application within
twenty one days of becoming aware of
the judgement. For reasons I will elaborate on later, I am of the
view that the defendant
became aware of the judgment considerably
earlier than 14 August 2015.
[7]
Even if the defendant were to be allowed the generosity of dealing
with his application in terms of
Rule 42
, he would have to show
that good cause exists for rescission of the judgment. The same would
be true if the application were to
be dealt with in terms of the
common law. The application must also be brought within a reasonable
time and the facts of each case
determine what a reasonable time is.
It has been held that even if an applicant proves that
section 42(1)
is applicable in this matter, the court still has the discretion to
hold that a reasonable time has elapsed. (See
Erasmus page B1 –
306G
). Put differently, the defendant will not succeed if he has
not brought the application for rescission within a reasonable time,
even if he proves that
Rule 42(1)
applies to his application. One
of the cases referred to by Mrs Collins in her Heads of Argument is
the often cited case
of
Smith NO vs Brummer No.
1954 (3) SA 352
(OPD
), which succinctly sets out the requirements that must be
complied with in order for a court to grant removal of Bar. On p 358A
the court said the following:
(a)
The Applicant has given a reasonable
explanation for his delay
(b)
The application is bona fide and not made
with the object of delaying the opposite party’s claim.
(c)
There has not been a reckless or
intentional disregard of the Rules of Court
(d)
The Applicant’s action is clearly
ill-founded
(e)
Where prejudice has been caused to the
opposite party it must be capable of being compensated for by an
appropriate order as to
costs.
Exactly
the same considerations apply when a rescission of judgment is
sought. See also
Silber v Ozen
Wholesalers (Pty) Ltd 1954(2) SA 345 (A)
,
where the court said at page 352 that “good cause”
includes, but is not limited to the existence of a substantial
defence.
[8] In
the present matter, my view is that the defendant has failed to show
that
Rule 42(1)
applies to this application as there is nothing in
his papers that would suggest that there was an error in obtaining
the judgment
or that it was invalid. My view is that the application
should be dealt with in terms of the common law. As such, the
applicant
should have launched his application within a reasonable
time after becoming aware of the judgment, failing which he must
tender
a reasonable and acceptable explanation for the delay. As a
guide to what is a reasonable time in which to bring the application,
reference to
Rule 31(2)(b)
is instructive. That Rule provides for a
period of twenty one (21) days in which to bring the application for
rescission, and in
my view this is a reasonable time. The defendant
brought this application more than six months after the date on which
the judgment
was obtained. He fails to disclose in his Founding
Affidavit that there were ongoing oral and written communications
between himself
and the plaintiff’s representatives, even
before the summons was issued. Significantly, the deponent to the
plaintiff’s
opposing affidavit (Helgard Botes) as well as its
legal representative discussed this matter with the defendant after
the judgment
was obtained in an effort to secure payment of the debt
from the defendant. Considering that the Sheriff attached the
defendant’s
assets on 5 March 2015, such discussions would have
taken place between 4 February and 5 March 2015.
[9] Mr
Botes indicates that this conversation took place on 26 February
2015, which the defendant admits in his Replying Affidavit.
I find
his version of what was discussed quite contrived. He asserts that
Botes said that the Sheriff is on his way (to the defendant)
and this
could mean anything. No indication was given to him that judgment had
been obtained against him. In my view, even a lay
person knows what
the functions of the Sheriff of the Court are. The defendant is an
astute and (apart from the drought) successful
businessman. I find it
improbable that he would not know that serious legal proceedings are
afoot if the Sheriff is on his way
with a Warrant. If he was in
doubt, then service of the Warrant of Execution upon his employee, Mr
Stander, and attachment of his
assets would have left him in no doubt
that a judgment had been granted against him. The absence of a
supporting affidavit from
Mr Stander about whether or when he brought
the Warrant of Execution to the defendant’s attention,
fortifies my suspicion
that he was well aware of the judgment not
later than 5 March 2015 or, at worst, even a day or so after that
date.
[10]
His tales of woe ranging from the drought to the fault of his
attorney in not properly advising him of what needed to be done
in
this matter, coupled with his claim about a total failure of
technology, which were the cause of his delay in bringing this
application, ring hollow and are not credible. The defendant admits
the debt but attempts to rely on a technicality to evade fulfilling
his obligations in terms of the judgment. There are numerous points
which are indicative of his lack of bona fides, but I will
deal with
ony a few. The first is the issue of his address. In the application
for credit facilities, which is the basis for the
plaintiff’s
action in this matter, the defendant furnished his physical address
as “Blomentuin, Hennenman” and
his postal address as
“Posbus 41 Ventersburg, 9450” The summons was served at
the farm Blomentuin in the Hennenman
District upon an employee, Mr T
Lebona. In the Founding Affidavit in this rescission application, the
defendant avers that he resides
at the farm Blometuin, Hennenman
District. It is clear that this is also the address he furnished to
his attorney Mr Jordaan, as
that is the address reflected on the
Notice of Withdrawal as Attorney of Record.
[11]
By the time the Replying Affidavit was filed on 2 November 2015, the
defendant’s address had changed to the Farm IDA,
Ventersburg,
Free State. It bears mention that the Notice of Set Down for the
rescission application, which was to be heard on
29 October 2015, was
served personally on the defendant on 12 October 2015 at the Farm
Blometuin, Hennenman District. The change
in address, which was not
communicated to any of the parties involved in this matter is most
convenient for the defendant and leads
to the irresistible inference
that it is contrived to suit his version that he did not receive any
of the process or correspondence
relevant to this matter.
[12]
The defendant raised no issue with the service of the summons on Mr T
Lebona in his Founding Affidavit, although he had sight
(on his
version) of the documents in the court file on 14 August 2015. This
is only raised in the Replying Affidavit, where he
(conveniently)
alleges that he has a number of people with the surname Lebona in his
employ, but not one of them bearing the initial
“T”.
Again the absence of confirmatory or supporting affidavits from the
Lebonas creates much doubt about the defendant’s
bona
fides
in this matter. The Founding
Affidavit is the basis of an applicant’s case, by which he must
stand or fall. The Replying
Affidavit serves the purpose of
elaborating on matters raised in the Founding Affidavit. The
applicant cannot raise new matters
or supplement his case in Reply,
and expect to have the ear or the sympathy of the court, as the
defendant has done in this matter.
I therefore reject his version
that he did not receive the summons in this matter.
[13]
One of the annexures to the Replying Affidavit is an application by
Mr Jordaan, the defendant’s former attorney who is
also his
Debt Counsellor, for a debt review and debt restructuring in respect
of the defendant. Mr Jordaan did not include the
debt of the
plaintiff in this application. He indicated that the plaintiff had
instituted legal proceedings (against the defendant)
prior to the
debt review application. An application for rescission was launched,
based on the fact that
ex facie
the summons, the plaintiff did not comply with
section 129
of the
National Credit Act. The
significant part of this affidavit
(paragraph 9) is Mr Jordaan’s assertion that
“
In
the opposing papers to the application it became evident that a
Section 129
notice was sent via e-mail. I am of the opinion that OVK
did therefore comply with
Section 129
and the agreement is therefore
not included.”
Equally
significant is the confirming affidavit of the defendant in which he
confirms the correctness of the debt counsellor’s
(Mr
Jordaan’s) affidavit. This, in effect, extinguishes the basis
for the application for rescission. The defendant’s
confirmatory affidavit is dated 2 November 2015. The Replying
Affidavit is also dated 2 November 2015, in which the defendant
persists in his defence, which in my view is clearly spurious. The
only conclusion that one can draw from the defendant’s
conduct
is that he has no
bona fide
defence to the plaintiff’s claim and has brought the rescission
application solely for the purpose of delaying the payment
of the
debt due to the plaintiff, much to the prejudice of the plaintiff. In
my view, the application for rescission itself lacks
bona
fides
and justifies a finding that the
defendant has failed to make out a case for the relief he seeks.
[14]
In the circumstances, I make the following order:
14.1
The application for rescission of the judgment dated 4 February 2015
is dismissed with costs, such costs to include the
costs of the
condonation application in respect of the Replying Affidavit.
____________
S.
NAIDOO, J
On behalf of the
Applicant: Adv L Collins
Instructed
by:
Graham Attorneys
14
Torbet Street
Noordhoek
Bloemfontein
(V
Graham/DUP27/0001
On behalf of the
Respondent: Adv SJ Reinders
Instructed
by:
Symington & De Kok
169 B
Nelson Mandela Drive
Bloemfontein
(PAC
Jacobs/R Brink/MLD0692)