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[2015] ZAGPPHC 98
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Ion Pop v Minister of Justice (987/2011) [2015] ZAGPPHC 98 (3 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
987/2011
Date: 03 March 2015
In the matter
between:
ION
POP
............................................................................................................................
Applicant
And
MINISTER
OF
JUSTICE
.............................................................................................
Respondent
JUDGMENT
PRETORIUS J.
[1] The plaintiff
requests an order whereby the court grants default judgment against
the defendant for payment in the amount of
R600 000, 00 with interest
and costs. The defendant is seeking rescission of a judgment granted
on 12 February 2014 in the absence
of the defendant in which the
striking out of the defendant’s defence in the action was
granted.
[2] The application
for rescission of the judgement has been consolidated with the
application for the default judgment. These two
applications are
inextricably interwoven and therefor both applications will be argued
and heard simultaneously. To prevent confusion
the parties will be
referred to as plaintiff and defendant respectively.
The facts:
[3] On 27 August
2012 the plaintiff called upon the defendant in terms of Rule 35 of
the Uniform Rules of Court to make discovery
of documents in the main
action. The defendant failed to make discovery and a court order was
granted on 17 July 2013 to compel
the defendant to make discovery of
the requested documents.
[4] On 10 October
2013 the plaintiff set down the application for striking out of the
defendant’s defence due to non-compliance
by the defendant with
the court order of 17 July 2013. The defendant served the discovery
affidavit at court on 10 October 2013.
The application for striking
out the defence was removed from the roll, as the defendant had
complied with the order.
[5] On 7 November
2013 the plaintiff once more served a notice in terms of Rule 35
requesting discovery of certain documents from
the defendant. The
defendant did not comply.
[6] The plaintiff
did not serve an application to compel the defendant to comply with
the order in terms of Rule 35(7) which sets
out:
“
If
any party fails to give discovery as aforesaid or, having been served
with a notice under sub rule (6), omits to give notice
of a time for
inspection as aforesaid or fails to give inspection as required by
that sub rule,
the
party desiring discovery or inspection may apply to a court, which
may order compliance with this rule......”
[7]
On 22 November 2013 the plaintiff served an application in terms of
Rule 35(7) for striking out of the defendant’s defence
in the
main action. The plaintiff set out in his founding affidavit that the
defendant had
“
failed
to comply with applicant’s request dated 7 November 2013 and
court order dated 17 July 2013 in terms of Rule 35.”
[8] On 12 February
2014 the court granted the order for the striking out of the
defendant’s defence in the absence of the
defendant.
[9]
On 3 July 2014 default judgment against the defendant was requested.
The matter was postponed to 21 August 2014 on which date
it was
postponed
sine die
to
enable the defendant to launch an application for rescission of the
previous order of 12 February 2014.
[10] The grounds the
defendant relies on in the rescission application are that the court
that struck out the defence was not aware
that the defendant had
complied with the previous order on 10 October 2013 and was therefore
not in default regarding the order
of 17 July 2013.
Rule 42(1 )(a):
[11] Counsel for the
defendant submits that the order should be set aside in terms of Rule
42(1) (a) which provides:
“
An
order or judgment erroneously sought or erroneously granted, in the
absence of any party affected thereby”
must
be set aside.
Mr
Bester, for the defendant, argued that if common law rules are
applied the order should be rescinded, as defendant has a
bona
fide
defence
to the action and the defendant has satisfactorily explained the
default of the order being granted in his absence.
[12] The defendant’s
argument is that had the court been aware of the fact that the
defendant had complied with the order
of 17 July 2013, albeit not to
the satisfaction of the plaintiff, and that the matter for the
striking out of the defendant’s
defence was subsequently
removed from the roll on 10 October 2013 the court would not have
ordered the striking out of the defence
of the defendant.
[13] The notice
served on 7 November 2013 was a fresh notice requesting discovery of
certain documents. It was not a revival of
the application to compel
removed from the roll on 10 October 2013. Therefore a fresh
application in terms of Rule 35(7) should
have been launched to
compel the defendant to provide the documents requested. The
plaintiff failed to do so and proceeded with
an application to strike
out the defendant’s defence. The plaintiff could not rely on
the previous court order as to all
intents and purposes the defendant
had complied with the previous court order.
[14] The plaintiff’s
assertion in his affidavit supporting the application to have the
defence struck out that the defence
had
“
failed
to comply with Applicant’s request dated 7 November 2013”
must
have been in support of an application in terms of Rule 35(7) to
compel the defendant to comply with the notice. Only after
such an
order had been granted and the defendant had failed to adhere to such
an order the plaintiff would have been entitled to
apply to court to
have the defence’s defence struck out.
It is evident that
if the court had knowledge of all the facts, the order would not have
been granted.
Common Law:
[15] If I am wrong
in finding for the defendant in terms of Rule 42(1) (a) I must
consider the rescission of the judgment in terms
of the common law.
The defendant has
set out its’ defence in the opposing affidavit which makes it
clear that the defendant has a defence against
plaintiff’s
action. The plaintiff’s cause is that during 1997 the Clerk of
the Magistrate’s Court, Germiston
falsely caused default
judgment to be entered in favour of Nedcor Bank. This resulted in the
sheriff selling the plaintiff’s
property situated at 13 Willow
Street, Primrose, Germiston.
[16] The plaintiff
is claiming R600 000, 00 from the defendant as damages that he had
suffered as a result of the sale of his house
after default judgment
had been granted against him in the Magistrate’s Court,
Germiston. He submits that this amount is
the difference between the
value of the immovable property in 1997 and the current value of the
property.
[17] The plaintiff
does not place any evidence before the court to prove the computation
of damages. According to the defendant
default judgment was granted
against the plaintiff in the Germiston Magistrate’s Court on 2
October 1997. The plaintiff brought
an application for rescission of
judgment on 28 February 2001 which was dismissed with costs.
[18]
Therefor I find that the defendant has a
bona
fide
defence
to the main action.
[19] The reasons for
default judgment are set out in the opposing affidavit and it is
clear that the application to strike out the
defence was not due to
any wilful default by the defendant. The default was due to the
transfer of files between attorneys at the
State Attorney’s
office which resulted in a systemic failure within the office of the
State Attorney. I accept this explanation
by the defendant as it was
adequately explained as to how the files were transferred from Mr
Matubatuba to Ms Nkosi.
[16] It is common
cause that should the court grant the rescission application, the
application for default judgment will have to
be dismissed.
[17] I am of the
opinion that the rescission of the judgment, striking out the
defendant’s defence should be rescinded both
in terms of Rule
42(1) (a) of the Uniform Rules of Court, as well as common law
grounds.
Therefor I make the
following order:
1. The application
for default judgment is dismissed;
2. The order granted
on 12 February 2014 for the striking out of the defence’s
defence in the action under case no. 987/2011
is rescinded and set
aside;
3. The defendant is
granted leave to defend the above action:
4. The costs of
these applications will be costs in the action.
Judge C Pretorius
Case number:
987/2011
Heard on: 23
February 2015
For the Applicant:
In person Instructed by
For the Respondent:
Adv. Bester
Instructed by: THE
STATE ATTORNEY
Date of Judgment: 03
March 2015