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[2016] ZAGPPHC 92
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Rossouw v Absa Bank Limited; Absa Bank Limited v Rossouw (49258/2013; 59908/2013) [2016] ZAGPPHC 92 (23 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED
DATE:
23.2.2016
SIGNATURE:
CASE
NO: 49258/2013
59908/2013
DATE:
23/2/2016
IN
THE MATTER BETWEEN
WILLEM
ALBERTUS ROSSOUW
APPLICANT
AND
ABSA
BANK LIMITED
RESPONDENT
IN
THE MATTER OF
ABSA
BANK LIMITED
APPLICANT
AND
WILLEM
ALBERTUS ROSSOUW
RESPONDENT
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
I shall refer to the parties as plaintiff and defendant.
Plaintiff, under case
number 19260/2010, through its erstwhile attorneys, Tim Du Toit
Attorneys, instituted an action against defendant.
The summons
had four separate claims in which plaintiff claimed payment for
monies lent and advanced to him by defendant.
Claims 1 and 2
are the relevant ones. Plaintiff obtained judgment by default
in respect of the two claims. Defendant
then brought an
application to have the judgments taken by default set aside.
The application covered claims 1 to 4.
Defendant succeeded in
having claim 1 set aside. The court dismissed the application
in respect of claims 2, 3 and 4 and
rescinded the judgment in respect
of claim 1. This appears from annexure "E" which is
the draft order of J W Louw
J appearing on pages 85 and 86 of the
paginated papers under case number 49258/2013.
BRIEF FACTS
[2]
Plaintiff again, through his current attorneys, Delport Van den Berg,
instituted two
actions under case numbers 49258/2013 and 59908/2013
against defendant. Case number 49258/2013 relates to claim 1
while case
number 59908/2013 relates to claim 2.
Defendant, in the meantime, had brought an urgent application under
case number
49258/2013 seeking an order staying the sale in execution
which was scheduled for Friday 30 May 2014 at 10:00. On
29 May 2014, the court granted the order staying the sale in
execution pending the institution and adjudication of defendant's
application for rescission of judgment which was to be instituted
within fifteen days of the court's order which is dated 29 May
2014. Defendant, pursuant thereto, has now brought the
rescission applications under case numbers 49258/2013 and
59908/2013.
In respect of the application under case
number 49258/2013, defendant raised a claim of
lis pendens,
as according to him, litigation had been pending in respect of claim
1 at the time the current default judgment was granted.
Defendant, in respect of claim 2, raised a claim of
res judicata
in light of the determination which had been made when the rescission
application was dismissed by the court leaving the default
judgment
intact. Plaintiff, at the hearing of the two applications for
the rescission of the two default judgments, assisted
by Adv J Roux
("Mr Roux"), moved an application for the variation of
the previous default judgment order made
under case number 19260/2010
by substituting the wrong immovable property which was declared
executable with the correct immovable
property described by defendant
in the court papers. Plaintiff also applied for condonation for
the late filing of its answering
affidavit. Plaintiff opposes
the two applications for the rescission of the two default judgments.
[3]
Plaintiff, correctly, in my view, consents to the rescission of the
order granted
under case number 59908/2013. The application for
the condonation of the late filing of plaintiff's answering affidavit
in
the rescission applications is also not opposed. The
variation of the order made under case number 19260/2010 is again not
opposed. The issue the court has to consider in these instances
is that of costs which I shall deal with later.
THE ISSUES
[4]
These are:
1.
whether
lis alibi pendens
can successfully be raised by
defendant in his application for the rescission of the default
judgment obtained under case number
49258/2013;
2.
whether defendant should be held liable for costs in the two
applications including
the costs relative to the variation
application and the application for condonation for the late filing
of plaintiff's (respondent's)
answering affidavit; and
3.
whether the parties, post June 2012 to date of the two applications,
were in
fact engaged in negotiations with plaintiff's erstwhile
attorneys Tim Du Toit Inc.
[5]
I shall first deal with the issue of
lis alibi pendens
.
I
pointed out earlier in this judgment that plaintiff under case number
19260/2010 by default obtained judgment against the defendant
in a
case which contained four claims namely claims 1, 2, 3 and 4.
Defendant then brought an application to have the default
judgment
rescinded. Defendant could only succeed in having the order
relating to claim 1 rescinded (see the order, annexure
"B",
on pages 136 and 137 of the paginated papers under case number
59908/2013). It was rescinded on the basis
that defendant had
not been in default. Plaintiff, at the time, also so conceded.
That, in my view, disposed of the
matter because there ought not to
have been any claim against defendant who had done nothing wrong as
he had not defaulted in his
payments. Put differently, there
was no case left as the order had been rescinded. There was no
cause of action and
there was no case hence plaintiff conceded that
the case was a non starter. Defendant cannot be heard to
say that the
case under case number 19260/2010 is still pending in
respect of claim 1. There was no case.
[6]
Case number 49258/2013 has its own cause of action arising from the
default of payment
by the defendant who had not defaulted under case
number 19260/2010 in respect of claim 1. Plaintiff demonstrated
the extent
of the default adding that defendant's payment had been
erratic. This can be gleaned from annexure "C"
running
from page 138 to 148 of the paginated papers. This, by
now, must have adequately demonstrated that claim 1 under case number
19260/2010 and the claim under case number 49258/2013 are different.
They are in fact unrelated. The one has no cause
of action
while the other has. This very clearly demonstrates that
lis
alibi pendens
cannot successfully be raised by defendant under
case number 49258/2013. The rescission of judgment under this
case number
must therefore fail.
[7]
I deal next with the question whether judgment was taken prematurely
in the two applications.
This, because defendant contends that
the parties were engaged in serious negotiations when the judgments
were taken by default.
Plaintiff has, in my view, successfully
refuted this. Indeed after the first rescission application in
which the order in
respect of claim 1 was rescinded, numerous
attempts to engage in negotiations were made. These attempts,
according to the
papers, became a futile exercise. Plaintiff
and its attorneys sent e mails to defendant, his spouse and his
attorneys
with a view to trying to have the matter resolved. An
attempt is also echoed by defendant's attorneys in their written
correspondence
to plaintiff's attorneys dated 27 August 2013.
Plaintiff always wanted to proceed with the matter. This is
seen
from plaintiff's attorneys' e mail to defendant's attorneys
dated 14 December 2013. This was the final communication.
It became clear, according to Mohamed Junaid Ali, the deponent to
plaintiff's answering affidavit, that there was no room for
negotiations. Ali, in the affidavit, stated categorically that
"any allegations of current negotiations, even post 14
December
2013 to the present date, is devoid of all truth". The
possibility of any negotiations taking place were no
longer
foreseen. This then shows that defendant could not have been
engaged in any serious negotiations as he contended.
This
defence which, according to Ali, was defendant's high water mark
defence, in my view, should also fail.
COSTS
[8]
Plaintiff expects defendant to be responsible for all the costs on
the basis that
they were successful with the variation application
and the condonation application. This, according to Mr Roux,
for
the plaintiff, calls for punitive costs against the defendant.
Mr Roux further submitted that the defendant misled the
court
regarding the alleged negotiations and that this bolstered their case
for costs against defendant on a punitive scale.
[9]
It will be remembered that:
1.
It was plaintiff's fault to include and describe a wrong property in
its papers.
The fact that there was no opposition in their
application does not mean that defendant should be burdened with
costs.
2.
The fact that plaintiff's application for condonation for the late
filing of
its answering affidavit was not opposed does not mean that
defendant also should bear the costs. They delivered their
answering
affidavit late and that too is their fault.
3.
The submission that defendant misled the court regarding the
settlement negotiations
on its own does not warrant punitive costs
against defendant.
4.
Plaintiff reinstituted an action under case number 59908/2013 when
the order
of the court under case number 19260/2010 was still
intact. Plaintiff correctly so conceded. Plaintiff cannot
escape
liability for the costs.
[10]
The following order, in the result, is made.
A.
CASE NUMBER 49258/2013
1.
The application for the rescission of the judgment by default granted
on 29 October
2013 is dismissed.
2.
Defendant (applicant) is ordered to pay the costs of the application.
B.
CASE NUMBER 59908/2013
1.
Condonation is granted for the late filing of plaintiff's
(respondent's) answering
affidavit.
2.
The application for the rescission of the judgment by default granted
on 19 February
2014 is granted. The judgment is rescinded.
3.
Plaintiff is ordered to pay the costs of the application.
4.
The contents of paragraphs 3.1 to 3.4 of the order dated 15 November
2010 in
respect of case number 19260/2010 are deleted and substituted
with the following:
Erf 6[...] W[...] x 9,
Township Registration Division I.P. Province of Northwest, measuring
2383 square meters, held by deed of
transfer number T[...].
Physical address: 3[...]
T[...] Street, Witkoppies, Klerksdorp.
M W MSIMEKI
JUDGE OF THE GAUTENG
DIVISION, PRETORIA
49258/2013
Date
of hearing: 28.4.2015
Judgment
delivered: 23.2.2016
Appearances:
For
the applicant:
Adv A
J Le Grange
Instructed
by:
Arthur
Channon Attorneys
For
the respondent:
Adv J
Roux
Instructed
by:
Delport
Van Den Berg INc