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[2016] ZAKZPHC 55
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Henman v Liberty Group Limited (AR425/15) [2016] ZAKZPHC 55 (9 June 2016)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO:AR425/15
DATE:
9 JUNE 2016
In
the matter between:
GLYNN
HENMAN
............................................................................................................
APPELLANT
And
LIBERTY
GROUP
LIMITED
.......................................................................................
RESPONDENT
Coram:
Kruger et Koen JJ
Heard:
23 May 2016
Delivered:
9 June 2016
ORDER
1.
The appeal succeeds/is upheld to the extent
that:
a.
The order of the Court
a
quo
refusing condonation is set aside.
b.
The order of the Court
a
quo
in dismissing the application for
recission in respect of claims (A); (B); (C) and (D) is set aside and
the judgment in respect
of these claims is hereby rescinded.
c.
The order of the Court
a
quo
in dismissing the application for
recission in respect claims (E); (F); (G) and (H) is confirmed.
d.
Each party is to bear its own costs,
including the costs of the appeal.
JUDGMENT
KRUGER
J (Koen J concurring):
[1]
The appellant seeks an order whereby the Court
a quo
’s
decision (a) to refuse condonation for the late filing of the
Application for Recission and (b) to refuse the Appellant’s
Application for Recission, be set aside.
[2]
A brief history of the matter follows hereinafter. The
Appellant stood surety for the payment of rental in respect of
shops
100 and 101 in the Liberty Midlands Mall, Pietermaritzburg.
Rentals in respect of both shops 100 and 101 were not paid
timeously
or at all and the Respondent issued two separate summons against the
Appellant in his capacity as surety. The matter
before us
concerns shop 100 only, the Case No. in the Court
a quo
being
1605/2010. The Appellant, although in possession of the
summons, failed to annex same to his founding or replying
affidavits. What was annexed was a copy of a summons issued in
respect of shop 101, the Case No. in the Court
a quo
being
1606/2010. Mr McIntosh, on behalf of the Appellant, has assured
us that apart from the amounts claimed, the particulars
of both
summons’ Case Nos. 1605/2010 and 1606/2010 are identical.
In the summons the Respondent sought an order for
confirmation of the
cancellation of the lease with effect from 19
th
January
2010; payment of arrear rental and ancillary charges together with
interest thereon; and damages for holding over.
The summons was
served on the Appellant on 1
st
February 2010. He
failed to enter an appearance to defend. As a consequence
thereof, on the 12
th
March 2010 the Respondent applied for
judgment by default. Judgment was granted on the 29
th
March 2010.
[3]
It was common cause that the Appellant remained in occupation of the
premises until the 27
th
May 2010. On this day an
entity called “Bundeberg Investments CC” (“Bundeberg)
entered into a lease agreement
with the Respondent and assumed
immediate occupation of the premises.
[4]
It appears from the record that during February 2010 the Respondent
received various payments totalling R115 800,00 from
the
Appellant. The Appellant has alleged, and this forms the basis
of his recission application, that after receiving the
summons,
negotiations commenced between himself, the Respondent and
Bundeberg. These negotiations culminated in an agreement,
namely that Bundeberg would pay all arrear rentals due by and on
behalf of the Appellant and in return Bundeberg would become entitled
to “take over” the lease of the premises. Having
reached this “agreement” the Appellant formed the
opinion
that the debt had been settled and did not concern himself further
with the matter.
[5]
The Appellant has alleged that on the 14
th
February 2014
he first became aware of the judgment when he received the judgment
letter informing him of same. He immediately
instructed his
attorneys to negotiate with the Respondent’s attorneys.
Unfortunately, the Appellant has failed to fully
disclose, in detail,
what transpired thereafter. He has merely alleged that his
attorneys’ negotiations did not yield
the desired result and
that he was later served with a notice to appear in court in respect
of proceedings in terms of Section
65 of the Magistrate’s Court
Act. He attended Court on the 26
th
June 2014 and the
matter was adjourned to the 24
th
July 2014 for purposes of
allowing the Respondent to furnish him with certain documentation.
The Appellant has further alleged
that subsequent negotiations were
futile.
[6]
A somewhat different picture emerges from the Respondent. It
has denied the existence of the “agreement” between
itself, the Appellant and Bundeberg, as alleged. It has averred
that after the Appellant received the judgment letter, his
attorneys
requested certain information relating to the Appellant’s
indebtedness.
[7]
This information was furnished and notwithstanding a demand for a
response, none was forthcoming from the Appellant. After
the
Court appearance of the 26
th
June 2014 the relevant information requested by the Appellant was
once again furnished (on the 2
nd
July 2014). No response was received from the Appellant.
On the 11
th
August 2014 the Application for Condonation and Recission was
launched. In a judgment handed down on the 30
th
January 2015, the applications were dismissed with costs.
CONDONATION
[8]
It is trite that a Court may, on good cause shown, condone any
non-compliance with the rules. What constitutes good cause
is
to be decided upon the circumstances of each case. Factors which the
Court will take into account are,
inter alia
, the degree of
non-compliance and the explanation for it; the nature of the case and
the prospects of success. The issue
is whether or not the
Appellant had provided a reasonable explanation for his delay in
bringing the application for recission and
whether or not he has
shown that he had a
bona fide
defence to their claim –
Burton v Barlow Rand Ltd t/a Barlow Tractor and Machinery Co
and
Burton v Thomas Barlow and Sons (Natal) Ltd
–
1978(4) SA794 (TPD)
.
[9]
In
United Plant Hire (Pty) Ltd v Hills and others
1976(1) SA 717 (AD)
the Court held that “a slight delay and
a good explanation may help to compensate for prospects of success
which are not
strong”. (at 720 G).
[10]
In
Utenhage Transitional Council v South African Revenue
Services
2004(1) SA 292 (SCA)
the Court, faced with an
application for condonation that lacked particularity, granted the
application on the basis that there
were good prospects of success.
[11]
In
casu
, I am of the view that there are no plausible
explanations from the Appellant that explains the delay in launching
the application
for recission. It appears from the record that
whenever the Appellant received a Court process he was galvanised
into action,
albeit
for a short while, and appeared
interested. There is no explanation for his inaction from the
6
th
May 2014 until he received the said notice in terms of
Section 65(1) of the Magistrate’s Court Act. There is
also no
explanation for his inaction for the period 2
nd
July 2014 (when he once again received a breakdown of the account)
until 11
th
August 2014 and the application was launched.
[12]
Guided by the judgment in
Uitenhage
Transitional Local Council
(
supra
),
I will consider the Appellant’s prospects of success,
notwithstanding the lack of particularity and candour in his
explanation
for the delay.
RECISSION
[13]
The Appellant’s application for recission as I understand the
submissions, are based on two grounds:
(a)
That the judgment was erroneously applied
for and granted; and
(b)
That he has a
prima
facie
and
bona
fide
defence to the Respondent’s
claim.
[14]
In respect of (a) above, the Appellant contends that during February
2010 he paid an amount of “R97 000,00 odd”
to the
Respondent. He however failed to annex or provide proof of this
payment. Nor did he allege precisely when these
payments were
effected. The Respondent confirmed receipts of payments in the
total sum of R115 800,00 during February
2010. This
payment, is noted, extinguished the claims as set out in the summons,
in prayers (A); (B); (C) and (D) –
the arrear rental and
ancillary charges. In my view the Respondent, via its
attorneys, ought not to have sought judgment
against the Appellant in
respect of those claims. The Appellant has therefore shown a
strong
prima facie
case that the judgment is substantially in
excess of his true liability. Accordingly the judgment was
erroneously sought
and granted.
[15]
In respect of the remaining claims – (E); (F); (G) and (H) –
as prayed for in the summons, these claims relate
to damages for
holding over and eviction. The Appellant’s defence is
that an “agreement” was reached between
himself, the
Respondent and Bundeberg whereby any arrear rental would be paid for
by Bundeberg. In addition thereto he has
alleged that a
material term of the agreement was that Bundeberg would be entitled
to “take over” the lease once it
had paid the arrears.
[16]
The Appellant has once again failed to provide the necessary
particularity relating to the alleged agreement. When was
the
agreement entered into? Who represented the various parties?
Where did the negotiations take place and when?
Where was the
agreement finalised? The Appellant’s affidavits
(particularly his replying affidavit when he was aware
of these
deficiencies) is devoid of these factual issues. It is further
noted that Bundeberg – on the Appellant’s
own version –
were not substituted as tenants, thereby “taking over”
the Appellant’s lease. A new
lease agreement was entered
into between the Respondent and Bundeberg and the Appellant was
informed of his liability up to the
27
th
May 2010.
The Appellant has also failed to provide particularity or averments
of when (if indeed it did) and how much, if
any, Bundeberg paid on
his behalf. All the documents provided by the Respondent
disprove the Appellant’s assertions.
[17]
Whilst it is noted that the Appellant need only establish a
prima
facie
defence, it is however necessary to set out facts, which if
established at the trial, would constitute a good defence –
Grant v Plumbers (Pty) Ltd 1949(2) SA 470 (0); Sanderson
Technitool (Pty) Ltd v Intermenua (Pty) Ltd
1980(4) SA 573
(W) at 575-6
. The Appellant has failed in this regard.
I agree with the submission of the Respondent’s counsel that
the Appellant’s
defence is “bald, confused and
unsubstantiated”. It follows that the appeal in so far as
it relates to claims
(E); (F); (G) and (H) must fail.
[18]
In conclusion I am of the view that the Appellant’s application
for condonation is saved by the merits in so far as it
relates to
claims (A); (B); (C) and (D).
[19]
In the result the following order is made:
1.
The appeal succeeds/is upheld to the extent that:
e.
The order of the Court
a
quo
refusing condonation is set aside.
f.
The order of the Court
a
quo
in dismissing the application for
recission in respect of claims (A); (B); (C) and (D) is set aside and
the judgment in respect
of these claims is hereby rescinded.
g.
The order of the Court
a
quo
in dismissing the application for
recission in respect claims (E); (F); (G) and (H) is confirmed.
h.
Each party is to bear its own costs,
including the costs of the appeal.
I
agree
KRUGER
J KOEN J
For
the Appellant: K C McIntosh
Appellant’s
Attorneys: Tate & Knight Inc
For
the Respondent: M Bingham
Respondent’s
Attorneys: Gideon Pretorius Inc