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South Africa: North Gauteng High Court, Pretoria
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[2016] ZAGPPHC 388
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Swanepoel v Ladybird Properties CC (43125/07) [2016] ZAGPPHC 388 (31 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 43125/07
DATE:
31 MAY 2016
In
the matter between:
TERSIA
SWANEPOEL
...............................................................................................................
Plaintiff
And
LADYBIRD
PROPERTIES
CC
.............................................................................................
Defendant
JUDGMENT
WENTZEL
AJ:
1. This is an
application for rescission of a judgment granted against the
applicant for estate agent's commission. In this respect
the
applicant averred that the respondent relied upon a fraudulent
mandate agreement (which she says was unilaterally altered)
to claim
estate's agents commission. She also avers that the property was not
sold within the period of the mandate, averring that
she had
cancelled the respondents mandate prior to the date of the alleged
sale This has not been established.
2. In the
circumstances there is no basis for relief under Rule 42 as it cannot
be said that the judgment was erroneously granted
or was vitiated by
fraud. It is thus necessary for the applicant to show good cause and
to provide a reasonable explanation for
her default. (Tshabalala and
another v Peer
1979 4 SA 27
T; Topol and Others v LS Group Management
Services
1988 1 SA 639
W.)
3. This involves
providing:
3.1. a reasonable
explanation for her default in opposing the action;
3.2. a reasonable
explanation for her delay in bringing this application for
rescission; and
3.3.
evidence of a
prima facie
defence to the action for commission.
4. As I have
found that there is no evidence of a defence it is not strictly
necessary for me to consider the remaining requirements
for relief
under Rule 31 or the common law save in so far as they have a bearing
upon the costs. The respondent's counsel argued
that the applicant
was in willful default and that attorney and client costs should be
granted. It was also argued that these costs
be paid by the
applicant’s attorney
de boniis
propriis.
5. Whilst I
accept that the applicant's prior attorney was somewhat remiss in her
duties, she has honestly and truthfully accepted
this and explained
the traumatic time she was experiencing to this Court. Neither the
applicant’s prior attorney nor her
current attorney was aware
that the mandate agreement had been validiy entered into in the terms
averred and accepted the applicant's
say-so that it had no been
signed in these terms.
I thus do not
believe that there is any basis for costs being awarded against any
of the applicant’s attorneys.
6. The question
arises whether the respondent is entitled to attorney and client
costs. Whilst i accept that this application has
been prompted by the
attempt by the Sheriff to attach first movable and thereafter the
immovable property of the applicant and
that very serious allegations
of fraud were made which were not substantiated I am not able to find
that the application was not
bona
fide
pursued or that the applicant did not and does not
continue to believe that she has a defence to the action. In the
circumstances
I am noi inclined to grant costs on the attorney and
client scale.
7.
In the circumstances I make an Order as follows:
7.1.
The application is dismissed with costs.
Signed
and dated on this 31
st
day of May 2016
S
WENTZEL
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA