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[2016] ZAGPPHC 240
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Mhlaba v First Rand Bank Limited and Others (32080/2014) [2016] ZAGPPHC 240 (22 April 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Not
reportable
Not
of interest to other judges
Revised.
22/4/16
Case
no. 32080/2014
In
the matter between:
M.C.
MHLABA
Applicant
and
FIRSTRAND
BANK
LIMITED
First
Respondent
SHERIFF
OF THE HIGH COURT - CENTURION WEST
Second
Respondent
JUDGMENT
RABIE,
J
1.
This is an application for rescission of judgement sought by the
applicant in respect of a default judgement granted against
him on 21
January 2015. The first respondent (hereinafter "the
respondent") filed an answering affidavit together with
an
application for condonation for the late filing of the answering
affidavit.
2.
The application for rescission was served on 11 May 2015. Notice of
intention to oppose the application was served by the respondent
on
18 May 2015. The answering affidavit was served and filed on 26 June
2015.
3.
Since the answering affidavit was supposed to have been filed on 9
June 2015 but only filed some 17 days later, the respondent
filed an
application for condonation for such a late filing.
4.
The applicant did not file a replying affidavit to the application
for rescission nor an opposing affidavit to the application
for
condonation. The respondent eventually set the matter down on the
opposed motion roll of 15 February 2016.
5.
On 2 February 2016 the applicant served a practice note and heads of
argument per email on the respondent's attorney. These documents
were
filed outside the time periods allowed for by the Rules of Practice
of this court. From these documents it appeared, for the
first time,
that the applicant was opposing the application for condonation and
would move for the rescission of judgement alternatively
for the
granting of condonation and a postponement for the filing of a
replying affidavit. Costs were also claimed against the
respondent.
6.
The objection to the application for condonation was twofold.
Firstly, it was submitted that the Commissioner of Oaths referred
to
the deponent of the affidavit as "he" while it appears from
the affidavit itself that the deponent was a female person.
This had
the effect, as submitted by advocate Geach SC that no affidavit had
been filed and that the application for condonation
should be
dismissed. Secondly, it was submitted that the case had not been made
out for condonation.
7.
Confronted with this sudden and belated attack on the affidavit
supporting the application for condonation, the respondent filed
affidavits by the Commissioner of Oaths and the same deponent
confirming that it was indeed the deponent who had appeared before
the Commissioner of Oaths and that it was a typographical error to
have referred to the deponent as "he".
8.
I am satisfied that in so far as there may have been any doubt as to
the commissioning of the affidavit supporting the application
for
condonation, such doubt had been completely removed. As far as the
merits of the application for condonation is concerned,
I am
satisfied that more than a sufficient case has been made out to
explain the slight delay in the filing of the answering affidavit
and
as to why condonation should be granted. Furthermore, the applicant
made out no case in respect of any prejudice the applicant
may suffer
if condonation is granted.
9.
As far as the costs of the application for condonation is concerned I
am of the view that the opposition thereto was so devoid
of substance
that in the exercise of my discretion I should award costs in favour
of the respondent.
10.
It was submitted on behalf of the applicant that in the event of
condonation being granted, this court should grant a postponement
to
the applicant to enable the applicant to file a replying affidavit in
the application for rescission.
11.
Adv Ellis, who appeared on behalf of the respondent, submitted that
the applicant was opportunistic to approach the application
in the
matter that he did and that he was in fact playing games with the
court. Adv Ellis emphasised the fact that the opposing
affidavit in
the rescission application had been filed during June 2015 and the
application during July 2015. Nothing at all was
done by the
applicant in the next approximately seven months. There was no
opposition to the condonation application nor was an
application
launched in terms of Rule 30. The applicant new that the condonation
application by the respondent would be launched
during the hearing of
the rescission application, yet it did nothing until a few days
before the hearing. Furthermore, no replying
affidavit had been filed
and it was submitted that the applicant was clearly employing
delaying tactics.
12.
It was further, inter alia, submitted that the applicant knew that
the issue of condonation would in all probability be finalised
at the
hearing of the main application and that the applicant was simply out
to waste valuable resources and to frustrate the applicant.
13.
It was further submitted that in reality the applicant had failed to
make out a case in the founding affidavit and never had
a defence
against the original claim by the respondent as plaintiff. It was
submitted that the application was a frivolous one
with no hope of
success and without bona tides. It was submitted that under the
circumstances the court should refuse the application
for a
postponement and dismiss the application for the rescission.
Reference was also made to the prejudice which the respondent
would
suffer if the matter is postponed.
14.
Having regard to all the submissions made I am of the view that the
matter should be postponed to allow the applicant to file
a replying
affidavit. In my discretion the costs relating to the application for
rescission should be costs in the application
for rescission.
15.
In the result the following order is made:
1. The late filing of the
First Respondent's opposing affidavit is hereby condoned.
2. The Applicant is
ordered to pay the First Respondent's costs in respect of the
application for condonation for the late filing
of the opposing
affidavit.
3. The application for
rescission is postponed sine die.
4. The costs incurred by
the postponement of the application for rescission shall be costs in
the cause of the application for rescission.
_________________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT