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[2016] ZAGPPHC 216
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Kwalo Trading CC and Another v Amathole Forestry Company (Pty) Ltd; In re: Amathole Forestry Company (Pty) Ltd v Kwalo Trading CC and Others (32512/2011) [2016] ZAGPPHC 216 (23 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 32512/2011
DATE:
23 MARCH 2016
In the matter
between:
KWALO TRADING
CC
..................................................................................................
First
Applicant
CEBANI
MTHOBA
.....................................................................................................
Second
Applicant
And
AMATHOLE FORESTRY
COMPANY (PTY)
LTD
..........................................................
Respondent
In re:
AMATHOLE FORESTRY
COMPANY (PTY)
LTD
................................................................
Plaintiff
And
KWALO TRADING
CC
.................................................................................................
First
defendant
CEBANI
MTHOBA
.....................................................................................................
Second
defendant
MINISTER OF WATER
AND ENVIRONMENTAL
AFFAIRS
.........................................................................................................................
Third
defendant
MINISTER OF
AGRICULTURE, FORESTRY
AND
FISHERIES
.........................................................................................................
Fourth
defendant
DATE OF HEARING:
30 November 2015
JUDGMENT
OLIVIER AJ
[1] This is an
application to rescind a default judgment granted by Pretorius J in
this court against the applicants, on 14 August
2013. The application
was first launched on 18 August 2014. A supplementary affidavit was
filed on 8 October 2014 to rectify certain
fatal defects in the
original application.
[2] The second
applicant in this matter is Cebani Mthoba, an adult male person. The
respondent is Amathole Forestry Company (Pty)
Ltd, a private company
properly registered in terms of the laws of South Africa. The second
applicant was the sole member of the
first applicant, Kwalo Trading
CC.
[3] It is common
cause that the first applicant had been deregistered by the time that
default judgment was granted. Respondent
therefore correctly
submitted that second applicant lacked the requisite locus standi to
act on behalf of the first applicant,
which is now a non-entity.
Respondent conceded in the answering affidavit of Davron Swift that
the judgment obtained against the
first applicant was invalid. For
purposes of convenience, I shall continue to refer to Kwalo Trading
CC as the first applicant,
even though it is a non¬entity.
[4] The default
judgment application arose from a damages claim instituted by the
respondent (plaintiff in the main matter) in this
court on or about 6
June 2011 against four defendants, including the first and second
applicants, resulting from a fire on 14 September
2008, which the
plaintiff alleged had destroyed some of the plaintiffs plantations.
It was alleged that the fire had spread from
the farm of the first
applicant. The claim was initially instituted in the Eastern Cape
(Grahamstown High Court), but the action
was withdrawn and
subsequently instituted here in this division.
[5] The application
for default judgment was brought in terms of rule 31(2)(a) on the
basis that the applicants (defendants) had
failed to file a notice of
intention to defend, or a plea. The application for default judgment
was served on the second applicant
on 6 August 2013, in accordance
with the practice rules of this division, considering that more than
6 months had passed between
the service of the summons and the
application for default judgment.
[6] In his
supplementary affidavit the second applicant stated that he was
bringing his application in terms of Rule 42(1 )(a),
even though in
his founding affidavit he referred to rule 31 as the basis for his
application. I shall consider only the rule 42
application, even
though respondent’s counsel also dealt with rule 31 in his
heads of argument. In terms of rule 42(1)(a)
the court may rescind or
vary an order or judgment erroneously sought or erroneously granted
in the absence of any party affected
thereby.
[7] The basis of the
second applicant’s argument is that default judgment had been
granted erroneously, as the state attorney
had entered a notice of
intention to defend the action on his behalf. He claims that the
court was misled that this notice had
been withdrawn, which means
that the judgment was granted erroneously. The notice of withdrawal
as attorney of record filed by
the State Attorney did not mean that
the notice of intention to defend was withdrawn. It was still in
effect at the time of the
granting of the default judgment.
[8] Second Applicant
further submitted that Respondent admitted that the state attorney
had entered notice on behalf of the second
to fourth defendants. It
matters not who files it; if there is a notice, there is a notice.
The withdrawal of the attorney from
the case does not impact on the
notice of intention to defend.
[9] The second
applicant argued that there is no affidavit or other proof from the
state attorney confirming the alleged mistake;
nor was there an order
setting aside or striking out the notice of intention to defend. The
applicant’s case may have benefitted
from more legal argument
on this point.
[10] Erasmus
Superior Court Practice D1-567/8 states the following about rule 42(1
)(a):
In general terms a
judgment is erroneously granted if there existed at the time of its
issue a fact of which the court was unaware,
which would have
precluded the granting of the judgment and which would have induced
the court, if aware of it, not to grant the
judgment. It follows that
if material facts are not disclosed in an ex parte application or if
a fraud is committed (ie the facts
are deliberately misrepresented to
the court) the order will be erroneously granted. ... An order or
judgment is also erroneously
granted if there was an irregularity in
the proceedings, or if it was not legally competent for the court to
have made such an
order. The subrule does not cover orders wrongly
granted.”
It is important to
note that the rule does not extend to orders that were granted
incorrectly.
[11] On 25 July 2011
the State Attorney entered a notice of intention to defend on behalf
of the second applicant, following earlier
service. But on 31 August
2011 a notice of withdrawal as attorneys of record was issued by the
State Attorney. The respondent claims
that the notice of intention to
defend was erroneously entered by the State Attorney.
[12] Respondent
contacted the State Attorney on 6 September 2011, who confirmed that
the notice of intention to defend filed by
the State Attorney had
been a mistake. A file note prepared by the respondent’s
attorneys and an affidavit confirming the
discussion with the State
Attorney were part of the papers before the court during the default
application proceedings.
[13] Respondent
argued further that because the State Attorney does not act on behalf
of individuals in their personality capacity,
the second applicant
would never have been able to instruct the State Attorney in his
personal capacity to file a notice of intention
to defend. The State
Attorney therefore clearly made an error.
[14] The founding
affidavit of the second applicant seems to confirm that the State
Attorney had made a mistake in entering notice.
See par 32 of his
founding affidavit:
32.1 I am further
informed by my attorneys that after issuing the summons out of the
above Honourable Court in this action, the
respondent caused the said
summons to be served on the office of the State Attorney in Pretoria
on behalf of the Ministers and
myself. 32.2 The State Attorney then
filed notices of intention to defend on behalf of the Ministers and
myself, as it was believed
by the State Attorney’s office at
the time that I was being sued in my capacity as an employee acting
during the course and
scope of my employment with the Department
concerned. 32.3 Shortly thereafter it transpired to the State
Attorney’s office
that I was being sued in my personal capacity
and they withdrew as my attorneys of record.
in his supplementary
affidavit the second applicant elaborates on this further, providing
a version that is partly at variance with
the one provided in the
founding affidavit. Respondent calls it “astonishing and
self-explanatory that the second applicant
fails to attach a
confirmatory affidavit from the State Attorney in this respect”.
[15] According to
the respondent, as a matter of courtesy its attorney contacted first
the second applicant, on 6 September 2011,
and then his attorneys, on
7 September, to inform them of the issuing of the summons in the
Gauteng High Court. Certified copies
of the summons and the return of
service were sent to the attorneys, along with a request that they
file a notice of intention
to defend. On 13 September and 10 October
2011 the second applicant’s attorneys confirmed acceptance of
the service of the
summons on them. But no notice to defend was
subsequently filed. Respondents aver that the second applicant was
aware of the summons
since at least 13 September 2013.
[16] The second
applicant further contends that by virtue of the existence of a
notice of intention to defend the respondent should
have served a
notice of bar in terms of rule 16, at the same address where notice
of application for default judgment was served,
and that he should
have been given the opportunity to file a plea. This is wrong, says
the respondent. The reason why the application
for default judgment
was served on second applicant was to comply with the requirement in
the practice manual, as the application
was brought more than six
months after the original service of summons.
[17] In my opinion
it was clear to all concerned, including the second applicant, that
the State Attorney had erroneously filed
the notice.
[18] Considering the
content of the default judgment application and the papers placed
before the court, I am of the view that the
respondent did not
mislead or withhold any pertinent facts from the court. All the
relevant papers were placed before the court
- and the judge was
directed to them by respondent’s counsel.
[19] Any possible
doubt created by the founding affidavit of Christopher Hugh Ranee, in
which he stated in par 8.7 that “the
State Attorney withdrew
the notice of intention to defend on behalf of the second respondent,
see annexure "J", was ameliorated
by the short heads of
argument of Amathole in the default judgment application, where the
issue of the notice of intention to defend
was explained as follows:
“It however later transpired that the State
Attorney erroneously
entered an appearance to defend on behalf of the Second Respondent,
and a Notice of Withdrawal was then filed
by the State Attorney on 31
August 2011. See paginated papers, page 105, Annexure “J";
Founding Affidavit, page 11,
paragraphs 8.7 to 8.8, page 12,
paragraph 8.8.”
[20] The court was
therefore alerted to the notice of withdrawal, and also the file note
and confirmatory affidavit referred to
above. Any possible
uncertainty created by the statement in the affidavit of Ranee was
thus removed.
[21] To sum up, I do
not consider the court to have been misled by the respondent in the
default judgment application. There was
no irregularity in the
proceedings, nor was any fraud committed. Pretorius J had all the
relevant papers before her to make an
informed decision.
ORDER
[22] The application
is dismissed with costs.
OLIVIER, AJ
Acting judge of
the High Court