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[2016] ZAGPPHC 269
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Ngcobo v Standard Bank of SA Limited and Another (57807/2013) [2016] ZAGPPHC 269 (4 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
4/5/16
CASE
NO.: 57807/2013
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
THULANI
NGCOBO Applicant/Defendant
and
STANDARD
BANK OF SA
LIMITED First
Respondent
SHERIFF
OF THE HIGH
COURT Second
Respondent
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
The applicant in the present matter before me is the first respondent
in the main application where the respondent is the applicant
for the
rescission in terms of the provisions of Rule 42(1)(a) of the Uniform
Rules of Court relating to an order allegedly granted
by default in
the absence of the applicant for rescission.
2.
The present applicant applies in terms of the provisions of Rule
30(2)(c) of the Uniform Rules of Court for an order setting
aside
that application for rescission on the basis that it constitutes an
irregular step.
3.
There is no appearance on behalf of the applicant for rescission (the
respondent). Due notice of the set down of this application
in terms
of Rule 30(2)(c) was given to the respondent. The Sheriff served the
Notice of Set Down on the respondent on 5 April 2016.
4.
In his application for rescission under Rule 42(1)(a) the respondent
applied that the issuing of a Warrant for Delivery of Goods,
issued
by the registrar of this court on 27 May 2014, be rescinded.
5.
It may be prudent to set out the circumstances that led to the
application in terms of the provisions of Rule 30(2)(c).
6.
The applicant in this application and the respondent concluded during
January 2012 a written Instalment Sale Agreement relating
to a
certain motor vehicle.
7.
The respondent defaulted in terms of the said Instalment Sale
Agreement whereupon the applicant instituted an action against
the
respondent during February 2014.
8.
A notice of intention to defend that action was filed by the
respondent. The applicant applied for summary judgment which
application
was resisted by the respondent. At all times the
respondent acted in person.
9.
After hearing argument by both parties, summary judgment was granted
on 14 May 2014 against the respondent. On the same day the
respondent
noted his intention to apply for leave to appeal the order granting
summary judgment.
10.
During or about 25 June 2014, the respondent lodged an application
for the rescission of the issuing of the Warrant for Delivery
of
Goods. This occurred prior to leave being granted to appeal against
the summary judgment order. The applicant retaliated by
lodging this
application on 5 August 2014.
11.
By agreement between the parties, the respondent's rescission
application (and presumably this application in terms of Rule
30(2)(c)) was postponed
sine die.
12.
Prior to the lodging of the application for rescission, the
respondent requested reasons for the granting of the summary judgment
order and which reasons were provided by 26 June 2014. Leave to
appeal to the full bench against the summary judgement order was
granted by the court on 20 November 2014. The formal notice of appeal
was lodged on11 December 2014.
13.
In terms of the provisions of Rule 49, the respondent was obliged to
apply for a date for the hearing of the appeal within 60
days of the
lodging of the notice of appeal. The 60-day period expired on 12
March 2015. No request for a date for the hearing
of the appeal was
lodge by that date. On the respondent's failure to timeously request
a date for the hearing of the appeal, the
appeal lapsed in terms of
the provisions of Rule 49.
14.
The respondent has not proceeded with the appeal, neither with his
application for rescission, and the applicant set the application
in
terms of Rule 30(2)(c) down for adjudication.
15.
There is no merit in the application for rescission of the issuing of
the Warrant for Delivery of Goods for what follows.
16.
The issuing
of a Warrant for Delivery of Goods is not a judgment or order as
contemplated by Rule 42(1)(a).
[1]
It is process issued by the registrar of this court and not "by
a court".
17.
Accordingly, the respondent's application in terms of Rule 42(1)(a)
constitutes an irregular step and stands to be set aside.
18.
It follows that the application in terms of Rule 30(2)(c) must
succeed.
19.
I grant the following order:
(a) The Notice of
Motion: Rescission of Order in terms of Rule 42(1)(a)
dated 25 June 2014 is set aside;
(b) The respondent is
ordered to pay the costs of this application.
On
behalf of Applicant: J A du Plessis
Instructed
by: Hack Stupel & Ross
On
behalf of Respondents: No appearance
Instructed
by:
[1]
See in this regard the discussion by the learned author of Superior
Court Practice, Second ed. Volume 2, p. 01-567 and the authorities
there referred to of what constitutes an order or judgment of court.