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[2016] ZAGPPHC 804
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Muthen v Waco Africa 2005 (Pty)Ltd and Another (40664/2016) [2016] ZAGPPHC 804 (7 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
Case
No: 40664/2013
DATE:
7/9/2016
In
the matter between:
THEODORE
CLAUDE
MUTHEN
............................................................................
Appellant
and
WACO
AFRICA 2005 (PTY)
LTD
.................................................................
First
Respondent
STEYN'S
BUILDING CONSTRUCTION
CC
..........................................
Second
Respondent
JUDGMENT
VAN
DER WESTHUIZEN, AJ
1.
This matter relates to an application for rescission of a
judgment granted by the Registrar of this Court on 26 November 2013.
2..
It is trite that an applicant for rescission of a judgment
granted by default seeks an indulgence and is obliged to provide
cogent
reasons for the judgment to be rescinded.
3.
The aforesaid order was granted against the applicant and the
second respondent who was the second defendant in the action wherein
the aforesaid order was granted by default.
4.
The matter came before Magagabe AJ on 4 February 2016 when it
was postponed on that day, the applicant being ordered to file a
supplementary
affidavit in support of the application for condonation
within 10 days of the order for the late filing of the replying
affidavit.
It is common cause that the applicant did not comply with
that order. The replying affidavit is thus not before court. The
applicant
indicated that it would argue the matter on the founding
and answering papers.
5.
The founding affidavit in support of the application for
rescission is glaringly lacking in particularity, is concise and
sparsely
deals with the relevant issues. In the founding affidavit it
is not stated under which Rule of Court the rescission is sought.
6.
Ms
Fitzroy, who appeared on behalf of the applicant, submitted
that an
application for rescission could be entertained under either the
provisions of Rule 31 or that of Rule 42 or in terms of
the common
law, provided that the requirements of each Rule or the common
law are
met.
[1]
7.
It
was conceded on behalf of the applicant, that the applicant has
not made a
case for rescission under Rule 31 or under the common
law. Ms
Fitzroy submitted that the provisions of Rule 41(1)(a) are to
be
considered in the present matter. Ms Fitzroy submitted that
the
requirement of the judgment by default to have been erroneously
sought or erroneously granted is applicable. It was submitted
that where
there has been non-compliance with a particular
requirement
that is to be complied with relating to the application for default
judgment, and such is absent, that judgment stands
to be set aside on
the ground that it was erroneously granted.
[2]
It was further
submitted
that the applicant for rescission on that ground was not obliged
further to
show good cause.
8.
From the founding affidavit the following is gleaned:
(a)
The applicant was a previous member of the second respondent;
(b)
The second respondent entered into a written agreement for credit
with the first respondent;
(c)
The applicant bound himself as surety and co-principal debtor in
respect of the obligations of the second respondent in favour
of the
first respondent;
(d)
On 2 July 2013 the first respondent issued summons against the
applicant and the second respondent for amounts due to the first
respondent by the applicant and the second respondent;
(e)
The applicant, on receiving the summons, approached a firm of
attorneys to assist him;
(f)
On the applicant's instructions, a notice of intention to defend the
action was entered and on 7 August 2013 the first respondent
applied
for summary judgment. The applicant states that summary judgment was
refused. However, it appears from the answering affidavit
that the
application for summary judgment was not refused, but that the first
respondent had granted leave to the applicant and
the second
respondent to defend the action. It is also stated by the first
respondent that the applicant had failed to file an
affidavit
opposing the application for summary judgment. Nevertheless leave to
defend was granted;
(g)
The applicant avers that a notice of bar to file a plea was served by
the applicant, but disavows any knowledge thereof;
(h)
The applicant claims that he was not advised by his erstwhile
attorney that a plea was to be filed and was blissfully under
the
impression that the applicant had "lost the appetite for the
matter and that it had not taken any further steps to proceed".
The applicant did nothing to enquire about the action against him. He
appears to have been unconcerned and now hides behind the
alleged
incompetence of his erstwhile attorney. However, the applicant's
present attorney belies that fact. In a letter of 3 February
2014,
the applicant's present attorney sought an indulgence in filing the
required plea;
(i)
The first indication that the first respondent had not desisted in
its claim against the applicant appeared when a warrant of
execution
was served upon the applicant;
(J)
The applicant was advised on enquiry that the specific attorney who
dealt with his matter had left the firm,
inter alia
due to
grossly neglecting his responsibilities in respect of a number of
litigation matters.
9.
The applicant concludes that default judgment had been entered
against him due to no fault of his own and that he should be given
the opportunity to defend the action.
10.
It follows from the foregoing, that no fact is provided, nor
any averment is made in the founding affidavit that the judgment was
thus either sought erroneously or granted erroneously in the
applicant's absence. The applicant simply never complied with the
delivery of a plea, even after further indulgence was sought in that
regard.
11.
It is submitted on behalf of the applicant that the provisions
of Rule 42(1)(a) apply for what follows. It is submitted that in
terms of the provisions of Rule 31(5)(a) an applicant for default
judgment is obliged to notify the defendant with no less that
5 days
notice of the intention to apply to the Registrar for default
judgment where the defendant is in default of delivering a
plea. Ms
Fitzroy submitted that this had not happened and hence the
application for rescission is to succeed.
12..
The application for default judgment is not before me. The
founding affidavit does not contain any reference thereto, nor that
the
application for default judgment had not been served, whether 5
days prior to the application being made, or otherwise. There is
simply no evidence or averment in the founding affidavit to support
such contention by Ms Fitzroy. There is no merit in the submission.
13.
Ms Fitzroy attempted, with reference to correspondence, to
argue a case for the applicant that the first respondent had already
obtained default judgment and attempted to mislead the applicant by
inviting the applicant to deliver a plea nevertheless. The dates
of
that correspondence are after the date on which default judgment was
granted. Upon the facts before me, both parties were unaware
of the
granting of the judgment on 26 November 2013 until the first
respondent became aware thereof on 4 March 2014, on which day
he
forwarded a copy thereof to the applicant's attorneys of record. Any
inference to the contrary cannot be drawn. There is no
merit in that
contention.
14.
It is clear from the foregoing that the first respondent had
afforded the applicant all opportunity to put his case before court.
Further in this regard, the applicant's attorney of record addressed
a letter on 3 February 2014 to the first respondent's attorney
indicating that he had set up a date on which he was to consult with
the applicant and prepare a plea. An indulgence was sought
in this
regard. No plea was forthcoming.
15.
It is submitted on behalf of the applicant that a
bona fide
defence is raised in the founding affidavit. The defence raised
relates to the amount for which the suretyship was granted. On a
reading of the suretyship, it is an unlimited one. It is not limited
to an amount of R200 000.00 which the applicant alleges was
the
amount granted in respect of the credit that was sought by the second
respondent. The credit application provides for an adjustment
of the
credit amount and it is apparent that the amount of R200 000.00 was
merely an initial amount set. The suretyship is a separate
and
distinct document. It does not refer to the application for credit.
16.
In view of all of the foregoing there is no merit in the
application for rescission. It does not comply with the requirements
for
rescission of a judgment either in terms of Rules 31 or 42 or the
common law.
17.
It follows that the application for rescission is to be
dismissed with costs.
I
grant the following order.
(a)
The application is dismissed with costs.
_________________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
On
behalf of Applicant: K Fitzroy
Instructed
by:
..................................
Muthray
and Associates Inc.
On
behalf of Fifth Respondent:
…..
J
C van Eeden
Instructed
by:
..................................
D
Paleologu Attorneys
[1]
Mutebwa v Mutebwa et al 2001(2) SA 193 (Tk)
[2]
Naidoo et al v Matlala et al 2012(1) SA 143 (GNP)