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[2016] ZAGPPHC 853
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Moosa v Hlongwa (72948/2014) [2016] ZAGPPHC 853 (19 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
THE
REPUBLIC OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 72948/2014
DATE:
19/9/2016
In
the matter between:
NICHOLAS
MOSES
MOOSA
............................................................................
APPLICANT
and
STHALANE
TIMOTHY
HLONGWA
................................................................
RESPONDENT
Heard:
Delivered:19/9/2016
Judgment
Molahlehi
AJ
Introduction
[1]
This is an application for the rescission of the default judgment
which was granted by this court on 12 February 2015 in favour
of the
respondent.
[2]
The applicant has also applied for condonation for the late filing of
the rescission application. The application was twenty
four days
late. The application was brought in terms of rule 42 of the Uniform
Rules of the High Court. The Rules makes no provision
for the time
frame within which a rescission application should be made. The
application was launched about twenty four days after
the order came
to the attention of the applicant. The respondent did not take issue
with this point.
The
background facts
[3]
The applicant is a professional motor mechanic, trading as Notorious
Spares and Tyres, with the principal place of business
at number 2
Staten street, Barbaton.
[4]
According to the applicant, he entered into an oral agreement with
the respondent, on 15 August 2013, in terms of which he amongst
other
things was to repair the car of the respondent at the costs of R85
000,00. The respondent paid the deposit of R17 000,00
and thereafter
failed to pay the remainder by monthly instalments.
[5]
As a result of the failure by the respondent to pay his monthly
installments a dispute arose between the parties. They then
with the
assistance of the attorney of the respondent signed an
acknowledgement of debt agreement. In terms of that agreement
respondent acknowledged that he was indebted to the applicant in the
amount R85 000,00 and that he would pay this amount by way
of a
monthly installment in the amount of R4000,00. It was further agreed
that in the event of failure to pay the monthly installments
the
capital amount would be come due immediately.
[6]
The applicant states in the founding affidavit that the respondent
again failed to meet his obligation in terms of the agreement
in that
he failed to pay the monthly instalments.
Legal
principles
[7]
It
is
trite
that
in
order
to
succeed
in
an
application
for
the
rescission
of
a
judgment
or
an order
of
the
court,
the
applicant
has
to
show
good
cause
and
that
he
or
she
has
a
bona
fide
defense.
In
general
good
cause
entails
having
to
provide
for
an
acceptable
and
reasonable explanation for the default. This includes having to show
that there was no wilful noncompliance with the rules
of
the court.
[8]
As
was
stated
in
Silber
v
Ozen
Wholesalers
(Pty)
Ltd,
[1]
the
applicant
for
a
rescission
should at
least
furnish an
explanation
of
his
or
her
default
sufficiently
full
to
enable
the Court
to
understand
how
the
default
came
about
and
to
assess
his
conduct
and
motives.
[9]
In
Grant
v
Plumbers,
[2]
the
court
set
out
the
following
as
grounds
for
a
successful
application for rescission:
"(a)
He must give a reasonable explanation of his default. If it appears
that his default was wilful or that it was due to
gross negligence
the Court should not come to his assistance.
(b)
His application must be bona fide and not made with the intention of
merely delaying plaintiffs claim.
(c)
He must show that he has a bona fide defense to plaintiff's claim. It
is sufficient if he makes out a prima facie defense in
the sense of
setting out averments which, if established at the trial, would
entitle him to the relief asked for. He need not deal
fully with the
merits of the case and produce evidence that the probabilities are
actually in his favour."
Evaluation/
Analysis
[1O]
The applicant in this matter was called upon by the respondent in his
notice of motion, in the urgent application that he had
instituted,
to file his notice to oppose that application within 5 days of
service of the notice of motion. The applicant was further
required
to file the answering affidavit within 15 days of service of the
notice of motion.
[11]
The issue in this matter is whether the applicant was in wilful
default and if not whether he is entitled to have the default
judgment against him rescinded.
[12]
It is common cause that the applicant never filed the notice to
oppose or the answering affidavit. It follows from this that
the
first thing which the applicant needed to explain is why he failed to
file the notice to oppose and the answering affidavit.
This issue
concerns whether he was served with the urgent application which the
respondent had instituted against him.
[13]
The respondent attaches to his answering affidavit both the return of
service of the notice of motion and the notice of set
down on the
applicant. The return of service of notice of motion indicates that
the papers were served on Ms Constance Watp who
was in charge of the
residence of the applicant. The return of service in relation to the
notice of set down indicates that the
papers were served Mr Raymond
Nkosi, also in charge of the residence of the applicant.
[14]
In his founding affidavit under the heading, "REASONABLE
EXPLANATION OF THE APPLICANT'S DEFAULT," the applicant states
that he "became aware of the court order dated 12th February
2015 when my house keeper, who was not aware of the importance
of
such documents, presented them to me on the 241h March 2015."
The other reason
given
by the applicant is that he was away from his residence from the 10th
February 2015 to 24th March 2015.
[15]
The applicant in both his founding affidavit and replying affidavit
does not deal with the issue of the service of the notice
of motion
and notice of set down on him. And in relation to the court order he
simply states that his house keeper brought it to
his attention. He
does not mention the name nor does he attach the supporting affidavit
of the house keeper.
[16]
In my view, the dates that the applicant says he was away from his
house are irrelevant because that period has no relation
to the
period when he was afforded the opportunity to defend the urgent
application and when he was invited to appear before the
court. There
is therefore no explanation from the applicant as to why he did not
comply with the rules and file notice of intention
to oppose or more
importantly why did he not attend the court when he was notified to
do so.
[17]
In light of the above I am of the view that the applicant has failed
to make out a case for the rescission of the court order
dated 12
February 2015. I see no reason why costs should not follow the
results.
Order
[18]
In the premises the applicant's application to rescind the order of
this court made on 12 February 2015 is dismissed with costs.
__________________
E.M
. Molahlehi
Acting
Judge of High Court of South Africa:
Gauteng
Division, Pretoria.
Appearances:
For
the Applicant: Adv. M M Ncongwane instructed Macbeth Attorneys Inc.
Tel:
(012) 452 3500
Fax:
----
For
the Respondent: Adv L Thobejane instructed by Botha Massyn &
Thobejane Associated Attorneys.
Tel
(012) 341 7964.
[1]
1954(2) SA 345 (A) at 353.
[2]
1949(2) SA 470 (TPD) at 476.