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[2016] ZAGPPHC 1137
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Absa Bank Limited v Baloyi and Another In re: Absa Bank Limited v Baloyi and Others (9850/2000) [2016] ZAGPPHC 1137 (26 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
26
October 2016
CASE
NO: 9850/2000
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In the
matter between:
ABSA
BANK
LIMITED
Applicant
And
BALOYI
RASIMATE
THOMAS
First
Respondent
BALOYI
JANE
MIHLOTI
Second
Respondent
In re
the action:
ABSA
BANK
LIMITED
Plaintiff
and
BALOYI
RASIMATE
THOMAS
First
Defendant
BALOYI
JANE
MIHLOTI
Second
Defendant
NEDBANK
LIMITED
Third
Defendant
JUDGMENT
TEFFO,
J
:
[1]
The applicant instituted an action
("the main actiori')
against the first and second respondents during the year 2000 for
payment of an amount of R64 020, 95. The claim arose pursuant to
an
alleged breach of a loan agreement concluded between the parties and
a subsequent mortgage bond registered over Erf 28 Mahube
Valley
Township
("the property')
as security in favour of the
applicant.
[2]
The respondents did not defend the action and on 19 May 2000 the
applicant obtained default judgment against them and an order
declaring the hypothecated property executable. In execution of the
judgment the property was sold to Mr and Mrs Maphutha and eventually
registered in their names. At some stage Mr and Mrs Maphutha
concluded a loan agreement with Nedbank Limited in terms of which
it
advanced funds to them.
[3]
Nine years later and on 19 December 2009 the respondents launched an
application for the rescission of the default judgment
obtained
against them by the applicant. The respondents also sought orders
against the Registrar of Deeds, Pretoria to restore
the registration
of the transfer of the property into their names and to cancel the
registration of the mortgage bond registered
in favour of Nedbank
Ltd. The applicant did not oppose the rescission application by the
respondents. On 31 January 2013 Barn J
granted judgment in favour of
the respondents whereby he rescinded the default judgment obtained
against them on 19 May 2000 and
postponed the two other prayers
against the Registrar of Deeds
sine die
pending the trial
court's final determination of the matter. It appears that in the
process the third defendant (Nedbank Limited)
prior to the judgment,
had applied for and was granted leave to intervene in the proceedings
as a defendant in the matter for the
reasons advanced above.
[4]
Subsequent thereto on 16 April 2013 an application for a trial date
was served on Nedbank's attorneys of record by the respondents'
attorneys of record. The respondents are alleged to have failed to
serve the application for a trial date on the applicant and/or
its
attorneys of record at the time, Hogan Lovells, or a notice of set
down on it and/or its attorneys. The matter was heard on
21 May 2014
and judgment was granted in the respondents' favour against the
applicant with costs including costs of two counsels.
[5]
The applicant seeks to rescind the judgment that was granted against
it on 21 May 2014 in terms of Uniform Rule 42(1) of the
Rules of
Court alternatively under common law. It contends that the judgment
was erroneously sought and granted in that the notice
of set down in
respect of the proceedings that resulted in the order was not served
on it and it therefore did not have knowledge
of the proceedings. It
was also contended that there is good and/or sufficient cause for the
court to grant the rescission of the
judgment.
[6]
The application is opposed.
[7]
The respondents raised the following points
in /imine.
In
paragraph 1 of the founding affidavit the deponent states that she is
a female person but the Commissioner of Oaths certified
that she is a
male person. The founding affidavit was not properly commissioned, it
is not an affidavit as required by law and
accordingly the
application should be dismissed with costs, so it was contended. The
applicant disagreed. It was also contended
that Mr and Mrs Maphutha,
who are the current registered owners of the property, should have
been joined in the application. Accordingly,
so the contention went,
the application should be dismissed with costs for failure to cite
and serve them with the application.
The applicant did not agree. It
contended that it only seeks rescission of the judgment that was
granted in its absence on 21 May
2014 and that Mr and Mrs Maphutha
have never been parties to the action instituted by it against the
respondents. It denied that
they have a substantial and direct
interest in the rescission application. In an affidavit deposed to by
Mrs Maphutha which has
been annexed to the papers, she stated that
she and Mr Maphutha were aware of the application for rescission of
the judgment by
the applicant, they do not wish to be joined in the
application. She further stated that the application can proceed and
be determined
in their absence. I have not seen the confirmatory
affidavit of Mr Maphutha. In any event the decision whether they
should have
been joined in the application is in the hands of the
court. The respondents futher contended that the applicant had failed
to
annex a resolution authorising the deponent to the founding
affidavit to sign and launch the application on its behalf. This
aspect
has been resolved.
[8]
Coupled with the above points
in limine
the respondents deny
that they are the defendants in the main action because the original
and/or copy of the summons which were
allegedly issued by the
applicant against them are not available. It is common cause between
the parties that the original and/or
copy of the summons cannot be
found. As regards the allegation that the applicant and/ or its
attorneys have not been served with
a notice of set down for the
proceedings of 21 May 2014, it was submitted that the respondents
understood the practice to be that
when the Registrar of Court
enrolls a matter for hearing on the trial roll, the notification is
dispatched to all the relevant
parties in the matter as their
attorneys of record had received the notification from the Registrar.
It was argued on their behalf
that they reasonably anticipated that
all other parties including the applicant, would have also received
such a notification from
the Registrar. It was also contended that
the application for a trial date was served upon the applicant's
former attorneys of
record, Van Zyl Le Roux Attorneys, on 16 April
2013 as the notice of substitution and appointment as attorneys of
record for the
applicant by Hogan Lovells (South Africa) was only
served on 29 September 2014. The respondents further deny that the
action by
the applicant did take place in the absence of the summons.
They also dispute the mortgage bond annexed to the application
because
of its illegibility. The applicant on the other hand argued
that the respondents failed to produce a mortgage bond registered in
its favour as agreed between the parties and without its production
thereof, they cannot dispute the one produced by it as
it was
the only one registered by the parties. It denied that no action took
place between the parties given the judgment the respondents
rescinded as per the judgment of Barn J on 31 January 2013. The
applicant reiterated that the respondents have failed to comply
with
Transvaal Rule 7 read with paragraph 6.15 of the Practice Manual of
this division in that they failed to deliver the required
notice of
set down to it.
[9]
I will first deal with the points
in limine
raised in the
application:
Reference
to the deponent as a female person in the founding affidavit and a
male person in the certification by the Commissioner
of Oaths.
I was
referred to a judgment from this division in
Absa Bank Ltd v Botha
NO and Others
2013 (5) by Kathree-Setiloane J which also dealt
with the issue. In that matter the defendant objected to the
plaintiff's verifying
affidavit in support of the application for
summary judgment in that although the deponent was a female, the
Commissioner of Oaths
certified that she was a male. The defendant
filed a notice in terms of Rule 30 objecting to the filing of the
affidavit as an
irregular step. The learned Judge upheld the
objection. In
Macsteel Service Centres SA (Pty) Ltd v Protin
Trading 35 CC and Others
[2016] ZAGPPHC 446 Rachod J who was also
faced with the same issue and referred to the decision of
Kathree-Setiloane J in
Absa Bank Ltd v Botha NO and Others
(supra),
distinguished the matter before him from
Absa Bank
Ltd v Botha NO and Others
and held as follows:
"In
my view the Absa
case,
in
so
far
as
it dealt
with a defective affidavit by the plaintiff is concerned, can be
distinguished from the instant
case
where the defendant's
affidavit is defective in the manner referred to earlier. To close
the doors of the court to the defendant
in these circumstances would
mean adopting a highly technical approach to the affidavit (WM Mentz
&
Seuns (Edms) Bpk
&
Katzake
1969 (3) SA 306.
In any event, the third respondent
says
in his affidavit that
he is a male and has signed it
as
such. It is the Commissioner
of oaths who made the error."
[10]
While I have my reservations with regard to the judgment in
Absa
Bank Ltd v Botha NO and Others (supra),
it is also my view that
the case is distinguishable from the application before me in that
there is no Rule 30 application objecting
to the Founding Affidavit
except to say that the issue was raised in the respondents' affidavit
opposing the rescission application.
The applicant addressed the
issue in its replying affidavit. The deponent in the replying and
founding affidavits is the same person.
She explained that the use of
the words
"he”
instead of
"she'
and
"his'
instead of
"hers'
in the certificate by
the Commissioner of Oaths are typographical errors which have no
bearing on the merits and outcome of the
application. She has signed
the founding affidavit wherein she states that she is a female
person. It is the Commissioner of Oaths
who made the error in the
certification. The defect in the certification in my view does not
affect the body of the affidavit.
To hold otherwise will be adopting
a highly technical approach to the affidavit and thereby closing the
doors for the applicant
while there are matters of substance that can
be dealt with. In my view the explanation given is reasonable and the
most plausible
in the circumstances. It therefore cures the defect
that is in the founding affidavit.
Failure
to join Mr and Mrs Maphutha in the application.
[11]
I do not agree that the application should be dismissed because the
registered owners of the property have not been joined
in the
application. The application seeks to rescind a default judgment in
an action that was instituted by the applicant against
the
respondents for their failure to meet their obligations in terms of
the loan agreement entered into between the parties. I
agree that
both the registered owners of the property and Nedbank did not
feature as parties in the action. Nedbank intervened
as a defendant
in the action on application to oppose the rescission application by
the respondents of the default judgment against
them in favour of the
applicant. The issue at hand does not involve the new owners of the
property. In any event Mrs Maphutha filed
an affidavit in which she
states that she and her husband do not wish to be joined in these
proceedings, they are aware of the
proceedings and will abide by the
court's decision. In my view they do not have a direct and
substantial interest in the action
between the applicant and the
respondents.
[12]
This takes me to the application. The issue for determination is
whether the applicant is entitled to rescission.
[13]
Rule 42(1) (a) reads as follows:
"(1)
The court may, in addition to any powers it may have, mero motu or
upon application of any party affected, rescind or
vary:
(a)
An order or judgment erroneously sought or granted in the absence of
any party affected thereby."
[14]
In order to obtain a rescission under this subrule the applicant must
show that the prior order was
"erroneously sought or
granted'.
Once the court holds that an order or judgment was
erroneously sought or granted, it should without further enquiry
rescind or vary
the order and it is not necessary for the party to
show good cause for the subrule to apply
(Tshabalala v Peer
1979
(4) SA 27
(T) at 300,
Topol v LS Group Management Services (Pty)
Ltd
1988 (1) SA 639
(W) at 650D-J,
Promedia Drukkers
&
Uitgewers (Edms) Bpk v Kaimowitz
1996 (4) SA 411
(C)).
[15]
In
Topol and Others v L S Group Management Services (Pty) Ltd
above, the court dealt with an application for rescission of
judgment refusing leave to appeal against an earlier order of court.
It found on the probabilities that the applicants had at all times
intended proceeding with their application for leave to appeal
and
that the reason why they had not been represented at the application
for leave to appeal was because they had no knowledge
of the set down
of that application. The Judge refusing leave to appeal had proceeded
on the basis that notice had been given and
that the applicants were
in default. The court held that the judgment refusing leave to appeal
was
"erroneously'
given within the meaning of Rule 42(1)
(a).
[16]
In
De Wet v Western Bank Ltd
1979 (2) SA 1031
(A) judgment was
rescinded in terms of Rule 42(1)(a) where the parties were not
represented at the hearing of the application because
they had no
knowledge of the set down of the application.
[17] It
is common cause that between the parties that the applicant was not
represented at the hearing on 21 May 2014 when default
judgment was
obtained against it by the respondents. It is further common cause
that the applicant did not receive a set down of
the hearing of 21
May 2014. The respondents understood the practice to be that when the
Registrar of Court enrols a matter for
hearing on the trial roll, the
notification is dispatched to all the relevant parties in the matter
as their attorneys of record
had received the notification from the
Registrar, so it was argued. According to the respondents, the
application for a trial date
was served on the applicant's attorneys
of record at the time (Van Zyl le Roux) on 16 April 2013.
[18]
Transvaal Rule 7 read with paragraph 6.15 of the Practice Manual of
this division provides that when pleadings in any trial
action have
been closed by the plaintiff, or if he fails to do so within six
weeks after the close of pleadings, the defendant
may set down the
case on the roll and such plaintiff or defendant shall forthwith give
the other party written notice that this
has been done; and every
party to an action who receives notice of the trial date shall
forthwith and in any event not later than
seven days after receipt of
such a notice, give notice in writing to every other party or his or
her attorney of the date which
was allocated by the registrar for the
hearing.
[19]
The respondents applied for a trial date from the Registrar of Court.
After receipt of the date allocated by the Registrar,
they did not
give notice in writing to the applicant and/or its attorneys of the
set down for trial. They therefore did not comply
with the above rule
which is peremptory. Service of the application for a trial date to
the other party on its own is not sufficient.
The respondents should
have also served the applicant with the notice of set down after
obtaining a date of trial from the Registrar.
The hearing on 21 May
2014 therefore proceeded in the absence of the applicant who did not
have knowledge of the trial date. I
am persuaded that the application
falls squarely under the provisions of Rule 42(1) (a) and the
judgment thereof falls to be rescinded
as the requirements thereof
under the rule have been met.
[20]
Various issues have been raised relating to the fact that summons
have been misplaced therefore there is no case against the
respondents, the denial by the respondents of the action by the
applicant, the dispute around the mortgage bond given its
illegibility,
etc. All these issues are in my view irrelevant in this
application. The applicant in my view has succeeded in establishing
that
the judgment of 21 May 2014 was
"erroneously sought or
granted'.
Once I have found that the judgment was
"erroneously
sought or granted'
it is not necessary for the applicant to show
good cause for the subrule to apply
(Tshabalala v Peer (supra);
Topol v LS Group Management Services (Pty) Ltd (supra)).
In my
view those issues are issues that have to be dealt with by the trial
court.
[21]
In the result I make the following order:
21.1 The
default judgment granted on 21 May 2014 against the applicant is
hereby rescinded and the respondents are ordered to pay
the costs of
the application.
M
J TEFFO
JUDGE
OF THE HIGHT COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES
FOR THE
APPLICANT G
STEYN
INSTRUCTED
BY LOWNDES
DLAMINI ATTORNEYS
FOR THE
RESPONDENTS BP
GEACH SC & M SNYMAN
INSTRUCTED
BY KABINI
& ASSOCIATES INC
HANDED
DOWN ON 26
OCTOBER 2016