About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 992
|
|
Halocure (Pty) Ltd v Thunderstruck INV 166 (Pty) Ltd t/a Boesmanland Safaris; In re: Thunderstruck INV 166 (Pty) Ltd t/a Boesmanland Safaris v Halocure (Pty) Ltd (47439/2015) [2016] ZAGPPHC 992 (2 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTE
N
G
D
I
VI
S
I
O
N
,P
R
ETOR
I
A
CASE
NO:47439/2015
2/12/2016
In
the matter between:
HALOCURE
(PTY)
LTD Applicant
and
THUNDERSTRUCK
INV 166 (PTY)
LTD Respondent
t/a
Boesmanland Safaris
In
re:
THUNDERSTRUCK
INV 166 (PTY)
LTD Plaintiff
t/a
Boesmanland Safaris
and
HALOCURE
(PTY)
LTD Defendant
JUDGMENT
MAIER-FRAWLEY
AJ
1.
This is an application for rescission of a default judgment granted
against the applicant on 10 November 2015 for payment of
the amount
of R273 600.00 together with interest and costs (the judgment). The
application is brought in terms of Rule 42(1)(a),
alternatively, Rule
31(2)(a) of the Uniform Rules of Court.
2.
The application was opposed by the Respondent.
3.
The respondent, as plaintiff, issued summons against the applicant,
as defendant, on 24 June 2015 for payment of the sum of R273
600.00
(inclusive of Vat), being the purchase price allegedly due and owing
to it in terms of an agreement of sale allegedly concluded
between
the applicant and the respondent, each represented, for the purchase
of three buffalo.
4.
On 3 July 2015, the Sherriff of the High Court, Pretoria, South East,
served the summons on the applicant at
'
196 Raymond
Avenue, Waterkloof,
Pretoria',
this being
the registered address of the applicant as cited in a company report
obtained by the respondent from the Companies and
Intellectual
Property Commission ("CIPC") on 14 May 2014 prior to
summons being issued and served. The applicant failed
to file a
notice of intention to defend as a result of which the Court granted
default judgment in favour of the respondent on
10 November 2015.
5.
The applicant became aware of the judgment on 4 December 2015 when
the deputy sheriff attempted to execute a warrant of execution
at the
applicant's business address, being Portion No. 0 (Remaining extent)
of the farm Vlakfontein, Registration Division KQ,
Limpopo Province.
6.
The applicant avers that its registered address was formally changed
to that of
'Plaas Vlakfontein 141
KQ,
Lephalale, Limpopo'
(Plaas Varkfontein address), which
change was effected by the offices of the CIPC on 25 May 2015, as
evidenced by the contents of
a CIPC company report dated 9 December
2015. The change of registered address thus occurred approximately
six weeks before service
of summons. According to the applicant, the
summons was not served at its existing registered address as at 2
July 2015, same having
been formally changed on 25 May 2015 and
therefore, the summons did not come to its attention, nor could it
have come to its attention.
7.
The applicant relies on Rule 42(1)(a) to have the default judgment
set aside, due to the alleged lack of proper service upon
the
applicant at its registered address.
8.
If the
court finds that the judgment
stands to
be set aside or rescinded on the basis
that
it was
erroneously
sought
or granted
in the
absence
of the
applicant,
the
need to
show good
cause falls away.
[1]
9.
Rule 42(1 )(a) provides that:
"(1)
The court may, in addition to any other powers
it may
have, mero motu
or
upon
application
of
any
party
affected,
rescind
or
vary:
(a)
An
order
or judgment
erroneously
sought
or erroneously
granted
in the absence of any
party
affected
thereby."
10.
In
Lodhi
2 Properties
Investments
CC
v Bondev
Development (Pty) Ltd
2007 (6)
SA 87
(SCA), Streicher JA held that if notice of proceedings to a
party was required but was lacking and judgment was given against
that
party, such judgment would have been erroneously granted. The
following appears at para 24:
'Where notice
of
proceedings
to
a
party is
required
and judgment
is
granted
against
such
party
in
his
absence without notice
of
the
proceedings having been
given
to
him,
such judgment
is
granted erroneously.
That is so not
only
if
the absence
of proper
notice
appears
from
the record of
the
proceedings as
it
exists
when judgment
is
granted
but
also
if,
contrary
to
what
appears from
such record, proper notice of the proceedings has in fact not been
given.... '
11.
If proper notice of the proceedings had not been given, then, in the
result, the respondent was procedurally not entitled
to the order
sought when it was granted. The order would for that reason, have
been erroneously granted.
12.
The respondent disputes that the formal change of registered address
was effected by the CPIC prior to the service of
the summons and
avers that the summons was duly served on the applicant at its
registered address in accordance with the records
of the CPIC as at 3
July 2015.
13.
The issue for determination accordingly is whether the applicant has
shown that default judgment was erroneously sought
or granted because
the summons was not served by the respondent at the applicant's
existing registered address on 3 July 2015.
This will depend on
whether or not the applicant has shown that its registered address
had changed to the Plaas Varkfontein address
before summons was
served.
14.
The applicant states that it applied to the CPIC on 21 January 2015
and again on 14 April 2015 to change its registered
address to the
Plaas Varkfontein address. Copies of the written applications were
annexed to the replying affidavit to counter
allegations in the
respondent's answering affidavit to the effect that the 'effective'
date of change of registered address, as
depicted in the CPIC report
of 9 December 2015, is not necessarily the actual date of change of
registered address. This is because
the said date could have been
backdated in the event that lodgement of the request to the CPIC to
effect a change of registered
address occurred on a date subsequent
to date of service of the summons. The applicant also annexed to its
replying affidavit,
a certificate issued by the CPIC on Monday the
25
th
May 2015, which clearly reflects the applicant's
address of registered office as 'Plaas Varkfontein 141 KQ Lephalale,
Limpopo'.
The CPIC report of 9 December 2015 does not only depict an
'effective' date of change of registered address. It shows that the
Applicant's registered address in fact changed to the Plaas
Vlakfontein address on 25 May 2015, as indicated in the history
section
of the report.
15.
In his written heads of argument, counsel for the respondent
criticised the CPIC report of 9 December 2015 for containing
inconsistencies
relating,
inter
alia,
to
the status of certain erstwhile directors of the applicant as well as
the applicant's company secretary. Much emphasis was laid
on alleged
contradictions between information appearing in the said report and
allegations made in the replying affidavit. It was
contended on
behalf of the respondent that the said report was unreliable, such
that it required speculation by the Court and the
respondent as to
the correctness of the information appearing therein and the
interpretation thereof.
16.
The deponent to the founding affidavit alleges that he is the sole
director of the applicant. In the CPIC report of 9 December
2015, he
is depicted as the only active director of the applicant.
17.
I am not persuaded that the perceived inaccuracies or inconsistencies
referred to are either material or affect the cogency
of the
information pertaining to the change of registered address of the
applicant in the CPIC report of 9 December 2015, as confirmed
in the
CPIC certificate mentioned earlier and relied on by the applicant.
The respondent did not dispute the authenticity of the
said report in
its answering affidavit, nor were any inaccuracies or discrepancies
alluded to by the respondent in the answering
affidavit. The
information concerning the change of registered address as reflected
in the 9 December 2015 CPIC report, was also
not gainsaid by means of
a more recent contrary report obtained from the offices of the CPIC.
The applicant replied on the December
CPIC report and the CPIC
certificate to demonstrate that the change of registered address
applied for, had been effected.
18.
'
To my mind, criticisms levelled against the 9
th
December CPIC report by respondent's counsel and argument raised to
challenge the reliability of the report, are unsupported by
evidence
and are built on supposition. In the absence of a challenge by the
respondent to the authenticity or validity of the report,
I am
constrained to conclude that the applicant has shown that the summons
was not served at its registered address. For this reason
the
judgment was erroneously granted.
19.
The applicant gave notice that it would apply for a punitive costs
order against the
respondent.
I am not persuaded that the respondent's conduct or opposition in the
matter is such as to merit an award of costs on
the scale as between
attorney and client.
20.
In the result, I make the following order:
(1)
The default judgment granted against the applicant on 10 November
2015
is hereby rescinded and set aside.
(2)
The costs of the application will be costs in the course.
_____________________________
A.
MAIER-FRAWLEY
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing:
30 November 2016
Date
of judgment:
2 December 2016
Judgment
delivered: 2 December 2016
Counsel
for the applicant:
Adv.
AP Ellis
Attorneys
for applicant:
PDR Attorneys
Respondent's
counsel:
Adv. JA Klopper
Respondent's
attorneys:
Spies Bester Potgieter Attorneys
[1]
See:
Rossitter
&
others
v Nedbank Ltd
(96/2014)
ZASCA
196
(1 December 2015) at par
1
6;