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[2016] ZAGPPHC 1031
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Yunus v Da Mata (A465/2016) [2016] ZAGPPHC 1031 (15 December 2016)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
15/12/2016
CASE NO: A465/2016
Reportable: No
Of interest to other judges: No
In the matter between:
SALJEE
YUNUS
APPELLANT
and
CLAUDIO DA
MATA
RESPONDENT
JUDGMENT
MALI J
INTRODUCTION
[1] The appellant appeals against the
refusal of the Senior Magistrate of EkuRhuleni, Mrs M Froneman to
condone the late filing
of the appellant's rescission application.
The application in question was in respect of the default judgment
granted against the
appellant on 24 May 2011.
[2] On 30 June 2014 the appellant
filed a notice of motion praying for an order for condonation and
rescission of the default judgement.
vide
page 95 of the
record of appeal. On 10 March 2016 the learned Magistrate dismissed
the application for condonation without attending
the merits of the
recession application.
FACTUAL BACKGROUND
[3] It is common cause that the
parties entered into a lease agreement on 28 January 2010. The
agreement provided for attorney and
client costs in the event of
litigation between the parties.
[4] The appellant chose [...] Kaydale
as his
domicilium
address. On 15 April 2011 the summons were
issued and served the appellant at
domicilium
address. The
appellant failed to enter appearance to defend and the default
judgment was granted against him on 24 May 2011. Warrant
of execution
was issued on 24 July 2012 and interpleader proceedings were
instituted and the determination thereof was on 11 January
2012.
[5] On 23 May 2014 an application for
rescission of default judgment was enrolled, but later withdrawn by
the appellant on 6 June
2014. The reasons for withdrawal of same is
that it was defective. It is common cause that all that was required
was a corrected
notice of motion incorporating appropriate prayers.
The application for default judgment was later enrolled on 30 June
2014 more
than 20 days after the appellant first became aware of the
judgment.
LAW
[6] Rule 49 (2) of the Magistrate's
Court Rules states:
"Rescission and variation of
judgments
49.
(1) A party to
proceedings in which a default judgment has been given, or any person
affected by such judgment, may within 20 days
after obtaining
knowledge of the judgment serve and file an application to court, on
notice to all parties to the proceedings,
for a rescission or
variation of the judgment and the court may, upon good cause shown,
or if it is satisfied that there is good
reason to do
so,
rescind
or vary the default judgment on such terms as it deems fit: Provided
that the 20 days' period shall not be applicable to
a request for
rescission or variation of judgment brought in terms of subrule (5).
(2)
It will be
presumed that the applicant had knowledge of the default judgment 10
days after the date on which it was granted, unless
the applicant
proves otherwise.
(3)
Where an
application for rescission of a default judgment is made by a
defendant against whom the judgment was granted, who
wishes to defend the
proceedings, the application must be
supported by an affidavit setting out the reasons for the defendant's
absence or default and
the grounds of the defendant's defence to the
claim.
(4)
Where an
application for rescission of a default judgment is made by a
defendant against whom the judgment was granted, who does
not wish to
defend the proceedings, the applicant must satisfy the court that he
or she was not in wilful default and that the
judgment was satisfied,
or arrangements were made to satisfy the judgment, within a
reasonable time after it came to his or her
knowledge.
(5)
(a) Where a
plaintiff in whose favour a default judgment was granted has agreed
in writing that the judgment be rescinded or varied,
either the
plaintiff or the defendant against whom the judgment was granted, or
any other person affected by such judgment, may,
by notice to all
parties to the proceedings, apply to the court for the rescission or
variation of the default judgment, which
application shall be
accompanied by written proof of the plaintiffs consent to the
rescission or variation.
(b)An application referred to in
paragraph (a) may be made at any time after the plaintiff has agreed
in writing to the rescission
or variation of the judgment.
(6)
Where an
application for rescission or variation of a default judgment is made
by any person other than an applicant referred to
in subrule (3), (4)
or (5), the application must be supported by an affidavit setting out
the reasons why the applicant seeks rescission
or variation of the
judgment.
(7)
All applications
for rescission or variation of judgment other than
a
default
judgment must be brought on notice to all parties, supported by an
affidavit setting out the grounds on which the applicant
seeks the
rescission or variation; and the court may rescind or vary such
judgment if it is satisfied that there is good reason
to do
so.
(8)
Where the
rescission or variation of a judgment is sought on the ground that it
is void aborigine or was obtained by fraud or mistake,
the
application must be served and filed within one year after the
applicant first had knowledge of such voidness, fraud or mistake.
(9)
A magistrate who
of his or her own accord corrects errors in
a
judgment in
terms of section 6(1)(c) of the Act shall, in writing, advise the
parties of the correction."
[7] It is trite that condonation of
the non-observance of the rules of court is not a mere formality. It
is also trite that wilful
default is normally fatal In Darries v
Sheriff, Magistrate' Court, Wynberg and Another
1998 (3) SA 35
SCA,
Plewman JA observed that the number of petitions for condonation of
failure to comply with the rules of that court (SCA) was
a matter for
grave concern.
[8] Plewman JA set out the applicable
principles as follows:
"I will content myself with
referring, for present purposes, only to factors which the
circumstances of this case suggest should
be repeated. Condonation of
the non-observance of the Rules of this Court is not a mere formality
(see Meintjies v H 0 Combrinck
(Edms) Bpk
1961 (1) SA 262
(A) at
263H--264B; Saloojee and Another NNO v Minister of Community
Development
1965 (2) SA 135
(A) at 138E--F). In all cases some
acceptable explanation, not only of, for example, the delay in noting
an appeal, but also, where
this is the
case,
any delay in
seeking condonation, must be given. An appellant should whenever he
realises that he has not complied with a Rule of
Court apply for
condonation as soon as possible. See Commissioner for Inland Revenue
v Burger1956 (4) SA 446 (A) at 449F--H; Meintjies's
case supra at
2648; Saloojee's case supra at 138H. Nor should it simply be assumed
that, where non-compliance was due entirely
to the neglect of the
appellant's attorney, condonation will be granted.
See
Saloojee's
case
supra at 141B--G. In
applications of this sort the appellant's prospects of success are in
general an important though not decisive
consideration. When
application is made for condonation it is advisable that the petition
should set forth briefly and succinctly
such essential information as
may enable the Court to assess the appellant's prospects of success.
See Meintjies's case supra at
265C--E; Rennie v Kamby Farms (Pty)
Ltd1989 (2) SA 124
(A) at 131E-F; Moraliswani v Mamili1989 (4)
SA
1 (A) at 10E. But appellant's prospect of success is but
one of the factors relevant to the exercise of the Court's
discretion,
unless the cumulative effect of the other relevant
factors in the case is such
as
to render the application for
condonation obviously unworthy of consideration. Where non-
observance of the Rules has been flagrant
and gross an application
for condonation should not be granted, whatever the prospects of
success might be. See Ferreira v Ntshingila1990
(4) SA 271 (A) at
281J--282A; Moraliswani v Mamili (supra at 10F); Rennie v Kamby Farms
(Pfy) Ltd (supra at 131H); Blumenthal and
Another v Thomson NO and
Another1994 (2) SA 118 (A) at 1211--122B."
"Wilful default or gross
negligence will often preclude
a
finding of good cause. Good
cause also includes but is not limited to the existence of
a
substantial defence
[1]
."
[2]
THE APPEAL
[9] The gravamen of the appellant is
that the learned magistrate erred in finding that he was aware of the
judgment on 29 August
2011, alternatively on 14 May 2013.
[10] The judgment was attacked because
in determining the degree of lateness in filing the application for
recission, she reasoned
that it
would be highly improbable that the
appellant was not aware of the judgment despite his communication
with Mr Etsebeth, the respondent's
attorney. The submission made on
behalf of the appellant is that the magistrate used a wrong standard
as motion court proceedings
are not designed to determine
probabilities.
[11] It was further argued that the
learned Magistrate finding that the appellant was wilful in his
lateness did not deter her from
considering the prospects of success,
prejudice to either party and the importance of the case.
[12] The learned Magistrate's
observations regarding to the probabilities are based on facts which
were before her. On 29 August
2011 the appellant attended a meeting
with respondent's attorneys in respect of release of the attached
goods per the warrant of
execution of June 2012. On 30 August 2011.
The respondent's attorneys addressed a letter to him stating the
terms of release. The
itemised statement of account was attached to
the letter. The said statement of account make reference to judgment
costs.
[13] The said correspondence is one of
the basis for the learned magistrate to reach the conclusion that the
appellant was aware
of the judgment as early as 29 August 2011.
[14] The appellant denied ever
receiving the said correspondence. The strange thing about the
appellant's denial is that the same
letter he denies he attached to
his founding affidavit. During the appeal it was argued that the
letter made reference to the property
of the close corporation
("CC"), because the warrant of execution was enforced
against the CC. The appellant is a member
of the CC. it is irrelevant
whether the assets belonged to the CC or not.
[15] What is of importance is on 29
August 2011 he knew that the assets were attached because of the
judgment taken against him
in his personal capacity. The interpleader
action was later concluded.
[16] Furthermore the letter of 14 May
2013 relied upon by the learned Magistrate is said to have created an
impression that the
respondent were still going to institute the
action against the appellant. This contention cannot be accepted, on
the background
of series of events preceding the said letter. The
events in question include
inter alia
the warrant of execution
and interpleader proceedings.
[17] Because of the fatality of wilful
default the Magistrate correctly exercised her discretion by not
limiting the determination
to the causes of default.
CONCLUSION
[18] In all the circumstances, the
court is not persuaded that the reasoning of the learned magistrate
can be faulted in any manner.
Furthermore we cannot find that she did
not exercise her discretion judicially. Having regard to the above
the appeal cannot succeed
and must be dismissed.
ORDER
[19] In the result I propose the
following:
[20] The appeal is dismissed with
costs, costs to be on an attorney and client scale.
____________________
N.P. MALI
JUDGE OF THE HIGH COURT
I
AGREE
______________________
T. D. VILAKAZI
ACTING JUDGE OF THE HIGH COURT
Counsel for the
Appellant:
Advocate Bezuidenhout
Instructed
by:
CHRIS LIEBENBER ATTORNEYS
Counsel for the
Respondent:
Advocate West
Instructed
by:
LOCKETTS ATTORNEYS
Date of
Hearing:
9 December 2016
Date of
Judgment:
15 December 2016
[1]
Securiforce CC v Ruiters 2012(4) SA 252 (NCK) at [12].
[2]
Mathie v Ruijter Stevens Properties (Pty) Ltd (AR352/14) [20151
ZAKZPHC 30 (11 June 2015)