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[2016] ZAGPPHC 664
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Van Der Burgh v Moosa and Another (37238/2014) [2016] ZAGPPHC 664 (29 July 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been redacted
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REPUBLIC
OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE: 29
JULY 2016
CASENO:
37238/2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter
between:
WAYNE
VAN DER BURGH APPLICANT/ PLAINTIFF
and
DEBORAH
MOOSA
…......................................................
1
st
RESPONDENT/DEFENDANT
NEW
ORDER INVESTMENTS 131 (
PTY)
......................
2
nd
RESPONDENT/DEFENDANT
LTD
J
U D G M E N T
MALI
J.
[1]
The applicant seeks an order to strike out defendant's plea and
consequently the default judgment in the sum of R4622 968.09
against the defendants in the main action who are the respondents
herein.
[2]
The applicant/plaintiff instituted action against the
respondents/defendants on 22 May 2014. The defendants filed Plea on
22 July 2014. On 22 August 2014 the Applicant delivered exception to
the respondent's plea because it failed to disclose a defence
against the plaintiff's claim; alternatively it was vague and
embarrassing. On 18 February 2015 the exception was upheld with
costs and the respondents were allowed a period of 1O (ten) days
from service of the order to launch an application to amend
their
Plea.
[3]
The defendants filed notice of intention to amend on 5 March 2015.
Despite this, the defendants did not file the proposed
amendment.
The applicant / plaintiff has applied in terms of Rule 21(4) of the
Uniform Rules for the defendant's defence to be
struck out. Rule 21
(4) provides:
"21
Further
Particulars
(4)
If the party requested to furnish any particulars as aforesaid fails
to deliver them timeously or sufficiently, the party
requesting
the same may apply to court for an order for their delivery or for
the dismissal of the action or the striking
out of the defence,
whereupon the court may make such order as to it seems meet."
[4] On
14 April 2015 the respondents served and filed their amended pages as
well as filed an application for condonation for the
late filing of
the amended pages. The applicant set down the matter to strike out
the respondent's defence for 16 November 2015.
The application for
striking out of the defence and default judgment intended to arise
therefore, as well as the respondent's
application for condonation
of the late delivery of the amended pages of the defendant's plea
were postponed sine die.
[5]
The respondents were ordered to file their replying affidavit in
respect of the condonation application, together with a condonation
application for the late filing of the said affidavit, within 1O
days of the order. The respondents were ordered to serve and
file
their heads of argument 15 days after they had filed their replying
affidavit. The respondents served their replying affidavit
on 1
December 2015, one day out of time.
[6] In
the present application the defendant sought the condonation of the
late filing of their amended pages. The respondents
explained that
the delay in delivering the amended pages was occasioned by the
administrative error on the part of the respondent's
erstwhile
attorneys as well as their correspondent attorneys.
[7]
Counsel for the respondent in elaboration to the error referred to
above stated that the erstwhile Durban attorneys of the
respondent
omitted to instruct their Gauteng correspondent attorneys to serve
the amended pages. They could not be punished by
the omissions of
their legal representatives.
[8]
In respondent's head of argument the court is referred
GROOTBOM-v
NATIONAL PROSECUTING AUTHORITY
[1]
at paragraph 23
the court
stated
that:
"It
is now trite that condonation cannot be there for the mere asking. A
party seeking condonation must make out
a
case entitling it
to
the court's indulgence. It must show sufficient
cause. This requires
a
party to give
a
full explanation
for the non- compliance with the rules
or court's
discretions. Of great importance, the explanation must
be
reasonable.
enough to excuse the
default".
[9] In
my view Grootboom
supra
does not seem to exclude the
requirement of a bona fide defence in respect of condonation
applications. If it is so, I cannot understand
how the court will
ascertain the reasonableness of explanation without the disclosure
of the defendant's defence in the affidavit.
This is in order to
weigh the prospects of success. The bona tides or lack thereof can
only be determined when the defence is
disclosed under oath.
[1O]
The applicant's complaint is that the respondent's defences are not
made under oath or simply put they are not disclosed
in the
respondent's affidavit. The respondent raised their defence in their
heads of argument for the first time.
[11]
At paginated page 209 paragraph 27 of the of the first and second
respondent's replying affidavit incorporating condonation
the
following is stated:
"to
the extent that I do not deal with the bona fide defence herein and
in order not to burden
the record with repetitions, I invite
the Honourable
Court, to what has been stated in the answering
affidavit
filed by the Respondents in opposition to the striking application,
insofar as it deals with the condonation for the late
filing of
the amended pages and to what I shall state later herein
,
mutatis mutandis"
[12]
It is apparent from the above that the defendants refer the court to
the answering affidavit in opposing the striking application
as far
it deals with the condonation. There is nowhere in the entire
affidavit where the defence of the respondents is dealt
with.
Gleaning from page 214 of the answering affidavit at paragraph 40 to
52 titled
"RESPONDENT HAVE NO BONA FIDE DEFENCE"
wherein I hoped to ascertain the defendants' defence,
regrettably the court could not find that the 12 paragraphs deal
with the
lack of understanding of test for condonation application
by the applicant's deponent. In fact at paragraph 40 the following
is
stated
" .........
This
is so in dealing with the question of bona fide defence
I
am
advised
that it is not
necessary
for
the litigant
to set out in
full all the facts in order to enable the Court to make
a
determination on the question of bona fide defence".
[13] I
agree with the applicant's contention that the respondent have raised
their purported defences in the heads of argument
filed on 16 March
2016. As indicated above the defences raised in the heads of
argument are nowhere to be found in the answering
affidavit. In
motion proceedings it is trite that the party makes his/her case in
an affidavit.
[14]
Having regard to the above the application for condonation in
respect of the late delivery of the amended pages must fail.
[15] In
the result I make the following order;
15.1.
It is ordered that the Respondent's/Defendant's Plea is struck off,
15.2
The respondents are ordered to pay the costs of the application,
jointly and severally, the one paying the other to be absolved.
15.3
it is
ordered that judgment is granted against the first defendant on the
following terms:
15.3.1
that the Addendum, attached to the Particulars of
claim
as Annexure "POC4" be rectified as follows:
i by deleting reference to
"twenty (20)
years"
in clause 2.2 and substituting it with
reference
"ten (10) years"
,
ii
by adding the following at the end of clause 2.2
"in
equal monthly instalments"
and
iii by inserting the following after clause 2.2 as 2.2A
"In
the event of the
purchaser
neglecting
and/or
failing
and/or
refusing
to pay
any
instalment
in
terms of the
addendum, the full
amount outstanding
will
become due and
payable
by
the
purchaser to the
seller."
15.4
against the defendants jointly and severally, the one paying the
other to be absolved:
15.4.1
payment in the sum of R4 622 968.09;
15.4.2
Interest on the amount in 15.4.1 at the rate of 12% per annum a
tempore morae
up to date of payment thereof;
15.4.3
an order declaring the property known as:
[EFR
17…] HOEVELD PARK, EXT 1 TOWNSHIP
REGISTRATION
DIVISION J. S. PROVINCE OF MPUMALANGA
MEASURING
2930 (TWO THOUSAND
NINE
HUNDRED
AND THIRTY) SQUARE METERS
HELD
BY DEED OF TRANSFER: T4469/2009
Subject
to the conditions therein contained and
[Erf
17…] HOEVELD PARK, EXT 1 TOWNSHIP
REGISTRATION
DIVISION J. S. PROVINCE OF MPUMALANGA
MEASURING
1560 (ONE THOUSAND FIVE HUNDRED AND SIXTY) SQUARE METERS
HELD
BY DEED OF TRANSFER: T9781/2009
The
respondents are ordered to pay the costs of the suit.
N.P.
MALI
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff:
...................
D
Prinsloo
Instructed
by:
...................................
KLAGSBRUN
EDELSTEIN BOSMAN DE VRIES
Counsel
for the Defendant:
............
D.
Motsweni Instructed by G H ISMAIL & ASS
Date
of Hearing:
...............................
19
April 2016
Date
reserved:
..................................
19
April 2016
Date of
Judgment:
.............................
29
July 2016
[1]
2014 (2) SA 68
(
CC)