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[2016] ZAGPPHC 126
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Standard Bank of South Africa Ltd v Erasmus (56672/2013) [2016] ZAGPPHC 126 (23 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG DIVISION, PRETORIA
)
CASE NO: 56672/2013
DATE: 23/3/2016
Not reportable
Not of interest to other judges
Revised
IN THE MATTER BETWEEN
STANDARD BANK OF SOUTH AFRICA
LTD APPLICANT
AND
CARIEN
ERASMUS RESPONDENT
JUDGMENT
MSIMEKI, J
[1] The application is based on Rule 27 of the Uniform
Rules of Court. It concerns condonation which applicant
seeks
for the late filing of its opposing affidavit to respondent's
application for the rescission of a default judgment which applicant
obtained against respondent.
[2] Applicant and respondent are represented by Adv C G
V O Sevenster ("Mr Sevenster") and Adv P J Vermeulen
("Mr
Vermeulen") respectively.
[3] Applicant instituted an action and on 18 October
2013 obtained judgment by default against respondent. Payment
was
claimed by applicant from respondent in her capacity as surety
for loans made to N J Erasmus Family Trust. The Trust
no longer exists. Respondent's husband who is said to have been
a co surety was also sequestrated. On 24 June
2014
respondent, as applicant, applied for the rescission of the default
judgment. On 27 June 2014 applicant in this
condonation
application filed a notice of intention to oppose the rescission
application. Applicant's affidavit opposing
the rescission
application was filed on 23 October 2014 ie three to four months
out of time. Respondent then served
applicant with a notice in
terms of Rule 30 of the Uniform Rules of Court on the basis that
the filing of applicant's opposing
papers in the rescission
application constituted an irregular step in the absence of a
condonation application. Applicant
then became obliged to apply
for condonation for the late filing of its opposing affidavit in the
rescission application.
This application is opposed by
respondent.
[4] This application is based on Rule 27(1) which
provides as follows:
"27.
Extension of time and removal of Bar and
condonation
(1) 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 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."
[5] Respondent contends that condonation should not be
granted because applicant:
- failed to furnish a satisfactory explanation for the
delay;
- has not shown that it is
bona fide
in its
application;
- in its conduct has shown reckless or wilful neglect of
the court rules;
- has failed to show that its application is not
ill founded; and
- that the granting of condonation will result in
prejudice to respondent.
[6] Applicant, on the other hand, contends that it has
given a satisfactory explanation for the delay and demonstrated that
it has
a
bona fide
defence and that it will be prejudiced
should condonation not be granted.
THE ISSUE
[7] The issue to be determined is whether, at the end of
the application, applicant has indeed established that it is entitled
to
the relief that it seeks.
COMMON CAUSE FACTS
[8] These are that:
1. On 10 October 2013, under the above-mentioned case
number, the court granted judgment by default against respondent in
favour
of applicant.
2. On 24 June 2014 respondent filed an application for
the rescission of default judgment.
3. On 27 June 2014 applicant filed a notice of intention
to oppose the rescission application.
4. Applicant, in terms of Rule 6(5)(d)(ii) of the
Uniform Rules of Court, had to deliver its opposing affidavit within
fifteen days
from 27 June 2014 which would have been on or
before 21 July 2014.
5. Applicant did not deliver the opposing affidavit by
21 July 2014.
6. Applicant did not approach respondent, her attorneys
or the court for an extension of time within which to deliver its
opposing
affidavit.
7. Respondent's attorneys then enrolled the application
for the rescission of the judgment on the unopposed roll of 11 August
2014.
8. On 11 August 2014, by agreement between the parties,
applicant's time to deliver the opposing affidavit was extended to
30 August
2014. The agreement was made an order of
the court.
9. Applicant, in breach of the agreement which had been
made an order of the court and the court order, failed to deliver the
opposing
affidavit on or before 30 August 2014.
10. Respondent's attorneys, as they were entitled so to
do, again enrolled the application on the unopposed roll for hearing
on
27 October 2014.
11. The notice of set down was served on applicant's
attorneys on 4 September 2014.
12. On 23 October 2014, which was two court days before
the application was to be heard, applicant delivered the opposing
affidavit
at the offices of respondent's attorneys.
13. The opposing affidavit was not accompanied by an
application for condonation for its late filing.
14. Respondent's attorneys were then prompted to serve a
notice in terms of Rule 30 of the Uniform Rules of Court on
applicant's
attorneys. This, as respondent contends, was an
irregular step.
15. The service of the Rule 30 notice then prompted
applicant to launch this application seeking the necessary
condonation.
[9] The use of the word "may" in Rule 27(1)
denotes that the court has a discretion to grant or not to grant
condonation.
In
United Plant Hire (Pty) Ltd v Hills and Others
1976 1 SA 717
(A) at 720E-F Holmes, JA said:
"It is well settled that, in considering
applications for condonation, the Court has a discretion, to be
exercised judicially
upon a consideration of all of the facts; and
that in essence it is a question of fairness to both sides. In this
enquiry, relevant
considerations may include the degree of
non-compliance with the Rules, the explanation therefore, the
prospects of success on
appeal, the importance of the case, the
respondent's interest in the finality of his judgment, the
convenience of the Court and
the avoidance of unnecessary delay in
the administration of justice."
THE LAW
[10] In
Immelman v Loubser en 'n Ander
1974 3 SA
816
(A) at 820D Muller, AR said:
"Dat kondonasie van die versuim van 'n appellant om
die Hofreëls na te kom nie net 'n blote formaliteit is nie, is
meermale
deur hierdie Hof beklemtoon."
(See also
Meintjies v H D Combrinck (Edms) Bpk
1961 1 SA 262
(A) at 263 264.)
In
Meintjies v H D Combrinck (supra)
at 264A-B
Steyn, HR said:
"Die Hofreëls stel termyne om nagekom te word,
nie slegs vir die gerief van die Hof en om in belang van die
regsadministrasie
onnodige vertraging by gedinge uit te skakel nie,
maar ook omdat die partye, met inbegrip van die teenparty, daar
belang by het;
en waar 'n appellant vind dat hy in versuim geraak
het, is dit sy plig om sonder verdere uitstel aansoek om kondonasie
te doen."
(See also
Commissioner for Inland Revenue v Burger
1956 4 SA 446
(A) at 449G-H.)
[11] Courts have held that where non-compliance with the
Rules has been flagrant and gross an application for condonation
should
not be granted, whatever the prospects of success might be.
(See
Dairries v Sheriff, Magistrate's Court, Wynberg and Another
1998 3 SA 34
at 41A-D.)
[12] In
Siber v Ozen Wholesalers (Pty) Ltd
1954
2 SA 345
(A) at 353A Schreiner, JA said:
"It is enough for present purposes to say that the
defendant must at least furnish an explanation of his default
sufficiently
to enable the court to understand how it came about and
to assess his conduct and motives."
Rule 27(1) of the Uniform Rules of Court requires that
"good cause" or "sufficient cause" must be
demonstrated
before condonation can be granted.
In
Cairns' Executors v Van Gaarn
1912 (AD) at
186, the court noted that the expression "sufficient cause"
seemed to be used in a wider sense, "as
covering any cause
sufficient to justify the Court in granting relief from the operation
of the earlier rule".
[13] In
Smith NO v Brummer NO and Another
1954 3
SA 352
at 358A Brink, J considered and summarised the factors which
the court must consider in determining whether or not condonation
should be granted. These, in short, are:
1. whether a reasonable explanation has been given for
the neglect;
2. whether the application is
bona fide
and not
brought with the intention to delay the other party's claim;
3. if there is absence of reckless or wilful neglect of
the Court Rules;
4. whether or not applicant's case is ill-founded;
5. if, where there is prejudice, such cannot be
compensated with a proper costs order.
[14] In
Van Wyk v Unitas Hospital and Another
(Open Democratic Advice Centre as amicus curiae
)
[2007] ZACC 24
;
2008 2 SA 472
at
[33]
the court said:
"Prospects of success pale into insignificance
where, as here, there is an inordinate delay coupled with the absence
of a reasonable
explanation for the delay."
The court then dealt with its displeasure where
litigants do not comply with the time limits or directions
setting out the
time-limits. Courts are also unhappy with
litigants dumping their matters with their attorneys and failing to
make the necessary
follow ups. Courts have expressed their
unhappiness where a litigant blames his attorney without
demonstrating that
he or she is not to blame for the ineptitude or
remissness of his or her attorney. (See
Saloojee and Another
NN.O v Minister of Community Development
1965 2 SA 135
at 141D H;
and
Colyn v Tiger Food Industries t/a Meadow Feed Mills (Cape)
2003 6 SA 1
(SCA) at p9 [12].)
FACTS OF THE CASE
[15] Applicant contends that after the application for
the rescission of the judgment was served on it, it was discovered
that respondent
(applicant in the main application for rescission)
was denying and disputing that she had signed the suretyship
agreement.
The signature, according to respondent, is not
hers. She believes that the signature has been forged.
Applicant contends
that a considerable time was taken by it while
trying to obtain original documents which would help it disprove
respondent's defence.
These documents are: the original deed of
suretyship, the loan agreement and the mortgage bond. The
documents were required
by applicant's expert who had wanted to
compare the signatures. This was occasioned by the fact that
respondent had employed
an expert to deal with the issue of the
alleged forged signature.
[16] Respondent contends that applicant's contention
does not assist it. The matter, in the first instance, was
handled by
experienced attorneys who knew more about the
time limits. Despite the time within which to file the
opposing affidavit
having expired, applicant or its attorneys did not
deem it fit to approach respondent or her attorneys or the court to
have the
time limit extended. In the absence of an
agreement or consent or such an approach by applicant or its
attorneys, respondent
set the application for the rescission down for
hearing. On the day the application was to be heard the parties
agreed on
when the opposing affidavit would be filed and this was
30 August 2014. The agreement was made an order of the
Court.
Applicant did not comply with the agreement and the
court order. No opposing affidavit was filed.
[17] Respondent again set the application down for
hearing on the unopposed roll. The notice was served on
applicant's attorneys.
Two court days before the application
was heard applicant's attorneys filed applicant's opposing affidavit
well out of time.
The affidavit was not accompanied by an
application for condonation. This then prompted respondent's
attorneys to serve
a Rule 30 notice on applicant's attorneys.
The notice prompted this application.
[18] Applicant further contends that trying to unearth
the required documents took a long time as it was important to get
the documents
which would disprove respondent's version. The
documents were not found. What I find strange is that it took
such a
long time to enquire from the Master of the High Court and the
conveyancers as well as exhausting the search at its offices.
The court is not told where the documents were stored.
Mr Vermeulen submitted that it had to be remembered that the
documents applicant was looking for belong to it.
[19] The affidavit, once ready, was allegedly sent to
the deponent for signature. It is said that the documents again
had
to be forwarded to the deponent for signature. This,
according to Mr Vermeulen, does not appear very clearly from the
papers. It is Mr Vermeulen's submission that it cannot
therefore be said that applicant has fully disclosed an acceptable
explanation for the default or the inordinate delay. What is
more, applicant still did not seek the extension of the time-limit.
It proceeded to file the opposing affidavit without the necessary
condonation application. What aggravates applicant's position
is that applicant failed to comply with the agreement between the
parties and the court order. If this is not reckless or
wilful
disregard of the agreement and the court order what else shall this
behaviour be called?
[20] A submission was made on behalf of respondent and
this is that respondent sufficiently explains that she did not sign
the deed
of suretyship. The signature appearing thereon,
according to her, has been forged. It appears the deed of
suretyship
was signed in Naboomspruit while the witnessing took place
in Kempton Park. No explanation for this has been
forthcoming.
The witnesses are said not to remember anything
about the deed of suretyship. There is no affidavit to this
effect and the
issue has not been dealt with let alone sufficiently.
[21] It is noteworthy that the default judgment was
obtained on this alleged deed of suretyship. Mr Vermeulen
submitted
that "at least one of the signatures (of a witness) is
clearly a forgery".
[22] If indeed the deed of suretyship was forged then it
means that the judgment was obtained on such a deed of suretyship.
Does this leave applicant with a
bona fide
defence? On
this basis not.
[23] If the deed of suretyship was forged that then
would explain why respondent contends that she neither received the
letter of
demand nor the summons. This would then explain why
applicant's relief is for the rescission of the judgment.
[24] It is again noteworthy that applicant has to prove
that respondent signed the deed of suretyship. The originals
are not
there. There is no evidence from applicant's expert
dealing with whether the deed has been forged or not. There is
no one to gainsay that respondent did not sign the deed of
suretyship.
[25] Applicant contends that respondent's application
for rescission is defective in that it has been brought out of time
and that
the application is further fatally defective in that the
notice of motion does not make provision for a prayer regarding
condonation.
Mr Vermeulen, for respondent, submitted that
prayer 4 of the notice of motion covers a prayer such as applicant
refers to.
The prayer is "further and/or alternative
relief". Respondent, in the rescission application,
specifically states
that condonation for the late filing will be
requested if necessary. Mr Vermeulen's submission seems to
have merit.
However, this issue is best left to the court which
will deal with the rescission application. Mr Vermeulen
submitted
that instead of invoking Rule 30, applicant chose to
take a further step. This, according to him, could not be done
at this late stage.
[26] Mr Vermeulen submitted that applicant failed to
furnish a sufficient explanation as the documents that they looked
for and
failed to get are the applicant's own documents filed within
its own system. There is, in my view, merit in the submission.
The delay which, according to Mr Vermeulen, amounts to four months is
inordinate, unjust and substantial. It is also not
accompanied
by an acceptable and sufficient explanation therefor.
[27] It was, on behalf of respondent, submitted that
applicant in a number of instances gave hearsay evidence. The
paragraphs
which are said to be dealing with hearsay evidence have
been enumerated. Mr Vermeulen, for respondent, submitted that
belatedly
applicant annexed two affidavits, one by T T Singh,
deponent to the founding affidavit, and the second by an attorney.
Mr Vermeulen implored the court to strike out paragraphs which
contained hearsay evidence. Mr Sevenster disagreed,
submitting that striking out required invoking Rule 23(2) of the
Uniform Rules of Court and that the application would have to
be set
down in accordance with Rule 6(5)(f). This is correct.
[28] It is noteworthy that applicant's case must appear
in the founding affidavit. This is because it is not
permissible to
rectify an omission in a founding affidavit in a
replying affidavit. Applicant must make out its case in its
founding affidavit.
It must either stand or fall by its
founding affidavit. (See
Bayat and Others v Hansa and
Another
1955 3 SA 547
(A) at 553D E and
Titty's Bar and
Bottle Store v A B C Garage and Others
1974 4 SA 362
(T).
[29] That applicant's founding affidavit must embody its
case is a principle of our law. In
Bayat and Others v
Hansa and Another (supra)
at 553D-E Caney, J said:
"... an applicant for relief must (save in
exceptional circumstances) make his case and produce all the evidence
he desires
to use in support of it, in his affidavits filed with the
notice of motion, whether he is moving
ex parte
or on
notice to the respondent, and is not permitted to supplement it in
his replying affidavits (the purpose of which is to reply
to
averments made by the respondent in his answering affidavits), still
less make a new case in his replying affidavits."
[30] The question to be answered is whether applicant,
with the evidence at the disposal of the court, has made out a case
to be
entitled to the relief that it seeks.
[31] Applicant, after filing a notice of its intention
to oppose the rescission of judgment application, waited too long
before
filing its opposing affidavit. Respondent twice set the
application down for hearing on the unopposed roll because of
applicant's
conduct. The parties agreed that applicant would
file its opposing papers on or before 30 August 2014.
Applicant
did not file the papers. Respondent, in the absence
of any action from applicant, had to again set down the application
for
hearing on the unopposed roll. Two court days before the
hearing of the matter, applicant then filed its opposing affidavit.
However, the answering affidavit was filed without any indication
that an application would be made for condonation of its late
filing
of its answering affidavit. Applicant had to be forced to bring
this application by the service on it of a Rule 30
notice. It
will be remembered that applicant all along has been represented by a
firm of experienced attorneys.
[32] During all these occurrences, neither applicant nor
his experienced attorneys, deemed it fit to approach either
respondent,
her attorneys or the court for an extension of the time
within which it had to file its opposing papers. This was only
forced
down its (applicant's) throat through the use of the Rule 30
notice.
[33] All applicant furnishes, as a reason for the delay,
is that it was relentlessly looking for original documents to counter
respondent's
version that the deed of suretyship was forged.
The reason, in my view, is not convincing and satisfactory.
I also
do not find as a satisfactory reason the fact that once
settled the opposing affidavit went astray. If everything
had
been done with the haste and seriousness the matter deserved,
that would not have come to this.
[34] Respondent's version that the deed of suretyship
was forged presents another problem for applicant. How the
document
was signed and the signing witnessed remains another hurdle
for applicant. There is hardly any noteworthy explanation.
The witnesses are said to be unable to recall what happened when
the signing took place. Original documents are missing
and
applicant's handwriting expert could, as a result, not assist
applicant. Judgment was taken under circumstances which
do not
demonstrate that original documents at the time existed. This,
according to Mr Vermeulen, does not demonstrate
the
bona
fides
on the part of applicant. I must agree.
[35] The time that elapsed before the opposing affidavit
was filed is inordinate and needed proper, acceptable and sufficient
explanation.
This explanation, in my view, has not been fully
and sufficiently given. Respondent indeed was entitled to
oppose this application.
She is, as a result, entitled to her
costs.
[36] Applying the law to the facts of this case, it
becomes abundantly clear that the application should fail.
[37] The following order is therefore made:
1. The application for condonation is dismissed.
2. Applicant is ordered to pay the costs of the
application.
M W MSIMEKI
JUDGE OF THE GAUTENG DIVISION, PRETORIA
56672-2013
HEARD ON: 28 APRIL 2015
FOR THE APPLICANT: ADV C G V O SEVENSTER
INSTRUCTED BY: VEZI & DE BEER INC
FOR THE RESPONDENT: ADV P J VERMEULEN
INSTRUCTED BY: W F BOUWER ATTORNEYS