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[2016] ZAGPPHC 304
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Bakone Ba Phetla Communal Property Association v Carmani Supply Chain Specialists (37803/2013) [2016] ZAGPPHC 304 (8 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 37803/2013
DATE:
08 MARCH 2016
In the matter
between:
BAKONE BA PHETLA
COMMUNAL PROPERTY
ASSOCIATION
..................................................................................................................
APPLICANT
And
CARMANI SUPPLY
CHAIN
SPECIALISTS
.............................................................
RESPONDENT
JUDGMENT
MSIMEKI J
[1] This is an
application for the rescission of a judgment granted by default
against applicant. Applicant based the application
on rule 31(2)(b)
of the Uniform Rules of Court.
[2] I shall refer to
the parties as applicant and respondent. The parties, respectively,
are represented by advocate B Van der Merwe
(“Mr Van der
Merwe”) and advocate H P West (“Mr West”).
[3] The action
brought against first defendant and applicant contains three claims,
namely claims 1, 2 and 3. Only claims 1 and
2 concern applicant.
[4] Plaintiffs’
claims are based on pledges of movable property annexures POC1 and
POC2.
[5] The summons, in
respect of first defendant, was served on Mr Matthews Phetla of BB
Transport Services (Pty) Ltd. Insofar as
applicant is concerned, the
summons could not be served as the sheriff, Alberton, reported that
“the business was unknown
at given address”. This is
obviously a return of non-service.
[6] Applicant, in
paragraph 22 of its founding affidavit, states that the summons in
respect of first defendant was served on Mr
Matthews Phetla who,
according to the sheriff, represented first defendant.
[7] Mr Van der
Merwe, in the event that it would be argued that Mr Matthews Phetla
also represented applicant when the summons was
served on first
defendant, argued that applicant clearly stated that Mr Phetla was
not authorized to accept service of the summons
on its behalf and
that the summons therefore “was never received by any
legitimate representative of the applicant”.
This does not seem
to have been seriously contested by Mr West. If this authority
lacked, one then has to ask oneself if what was
done without the
authority of applicant, for instance, the conclusion of the pledges
of movable property was lawfully done. I shall
not answer the
question which I believe is best left to the court which will
ultimately hear the matter to deal with. The answer
is not necessary
for the purposes of this application. In any event the sheriff,
insofar as service on applicant is concerned,
stated that there was
no service.
[8] Mr Van der
Merwe, during his argument, when dealing with Mr Matthews Phetla’s
alleged authority referred to the second
paragraph under
introduction, in the forensic report appearing on page 115 of the
paginated papers.
The paragraph reads:
“The main
allegation amongst others is that the terms of office for which the
members of the CPA had been appointed for, had
expired and new
elections needed to be held. Therefore the executive members of the
CPA whose term of office was for a period of
5 years, since
appointment in 2004 were acting illegally and without authority.”
This aspect too does
not deserve my attention as the court which will deal with the matter
is best suited for that. Given the facts
of this application, it is
unnecessary to deal with the issue. The necessity has been removed
because the issue which I regard
as significant is whether the
judgment by default was erroneously sought and granted. This, in my
view, is dispositive of the application.”
[9] To get back to
the sheriffs return of service, we shall recall that he provided
respondent with a return of non-service. Can
it, in the absence of
proper service on applicant, be said that the combined summons came
to the notice of applicant. According
to the sheriff, there was no
service. Applicant in its reply, and in so many words, states that it
did “not receive a copy
of the summons and/or application for
default entity (sic)” and that it was therefore unable to
respond properly. It challenged,
respondent “to provide the
applicant with the summons and application for default judgment which
forms the subject matter
of this application”. It also reserved
“its rights of (sic) deal with summons and application for
default judgment
once the documents have been provided by the
respondent.”
[10] The gist of
applicant’s case seems to be that “default judgment was
erroneously taken against a wrong entity (applicant)
and in its
absence. This is clearer in paragraph 30 of applicant’s
replying affidavit.
[11] Respondent’s
contention that applicant failed to satisfy the requirement of rule
31(2)(b) to bring its application for
the rescission of the default
judgment “within twenty days of having become aware of the
judgment”,
according to
applicant’s version, is incorrect. Indeed this has been set
out.
[12] Respondent
contends that applicant’s forensic report and the 3rd Party
Assessment annexed as B1 and B2 to applicant’s
founding
affidavit should be rejected as inadmissible hearsay evidence which,
according to it, discloses no defence. Again, without
determining
whether the pledges of movable property are proper and valid,
reference for instance, to the second paragraph of page
117 of the
paginated papers has been made in applicant’s affidavit and
this portion has been confirmed by the author of the
forensic report
in his confirmatory affidavit annexure RA1 to the replying affidavit.
This cannot be hearsay evidence.
[13] Applicant’s
address which respondent invited applicant to furnish has been
furnished.
[14] It must be
noted that Mr Namudi Phillip Phetla, in the founding affidavit,
specifically states that applicant, at the time
of deposing to the
affidavit, was not in possession of the judgment that had been
granted against it. It is clear that from the
time applicant became
aware of the judgment up to the time the applicantion was brought,
applicant observed the twenty day rule.
According to the deponent
applicant became aware of the judgment on 15 May 2014. The founding
affidavit was deposed to on 5 June
2014 which was within the time
prescribed by the rules. Applicant, despite going through the court
file, has not been able to establish
when the judgment by default was
granted.
[15] Applicant based
its application on rule 31(2)(b). This, however, does not preclude
the court from invoking rule 42(1 )(a).
Applicant also has dealt with
non-receipt of the summons. Rule 42(1 )(a) provides:
“42 Variation
and rescission of orders
(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/’ (My emphasis)
[16] Clearly the
court is enjoined to mero motu rescind an order or judgment
erroneously sought or erroneously granted in the absence
of any party
affected by the order or the judgment.
[17] Based on the
sheriffs return there was no service of the combined summons on
applicant. The sheriffs return of non-service
is undisputed. What is
more, applicant states that the summons never came to its notice.
This has not been disputed either. This,
in any event, confirms what
the sheriff says. The judgment was granted in the absence of
applicant. This cannot be denied. The
sheriff furnished a return of
non-service. This too cannot be denied. This, coupled with the fact
that it is applicant’s
contention that it never received the
summons, explains why applicant entered no appearance to defend.
[18] The word “may”
in rule 42(1) denotes that the court has power and a discretion to
exercise to rescind the judgment.
It also refers to the circumstances
under which the court will consider a rescission of the judgment. In
this instance the court
acts mero motu. The rule is meant to correct
expeditiously an obviously wrong judgment. (See Van Loggerenberg:
Superior Court Practice
D1-562 and D1-563 and the cases cited).
At D1-563 the author
says:
“The rule
should be construed to mean that once one of the grounds is
established, for example, that the judgment was erroneously
granted
in the absence of a party affected thereby, the rescission of the
judgment should be granted. [See also Mutebwa v Mutebwa
2001 (2) SA
193
(TK) at 199I-J]”
[19] Evidence, at
the disposal of the court, is such that it will be prudent to rescind
the judgment and allow the parties to properly
ventilate what the
court hearing the matter should hear and know for it to arrive at a
balanced and appropriate judgment. The application,
in my view,
should succeed.
[20] COSTS
Mr West, in the
event that the court was inclined to rescind the judgment, implored
the court to find that applicant ought to bear
the costs. The
submission was based on the fact that the opposition that respondent
mounted against the application was reasonable.
Mr Van der Merwe, on
the contrary, submitted that the facts and circumstances which
demonstrate that judgment ought not to have
been granted existed at
the date and time of the judgment. This simply means that there is a
causal connection between the circumstances
which gave rise to the
claim for rescission and the judgment. [See Swart v Absa Bank Ltd
2009 (5) SA 219
(C).] This, according to Mr Van der Merwe, means that
applicant is entitled to the costs. I agree.
[22] I, in the
result, make the following order:
1. The judgment
granted against applicant by default under case number 37803/13 is
hereby rescinded.
2. Respondent is
ordered to pay the costs of this application.
M W MSIMEKI
JUDGE OF THE
GAUTENG DIVISION.
PRETORIA
Heard on:
12/10/2015
For the
Applicant: Adv B Van der Merwe
Instructed by: N
Maharaj Attorneys
For the
Respondent: Adv HP West
Instructed bv:
Freedland Hart Solomon & Nicolson
Date of Judgment:
08 MARCH 2016