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[2015] ZAGPPHC 278
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Wamkulus Construction and Maintenance CC v Sebokuboku Construction and Water Supply (A143/2015) [2015] ZAGPPHC 278 (8 May 2015)
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Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NUMBER:
A143/2015
DATE: 8 MAY 2015
In the matter
between:
WAMKULUS
CONSTRUCTION AND
MAINTENANCE
CC
.........................................................................................................................
Appellant
And
SEBOKUBOKU
CONSTRUCTION AND WATER
SUPPLY
...........................................................................................................................................
Respondent
JUDGMENT
STRAUSS, AJ:
1.
This is an appeal against an order of the Regional Court for the
Division of Limpopo, dismissing the rescission application by
the
appellant to have a default judgment granted against it on 7 May 2013
set aside. The appellant contends that the default judgment
granted
against it was void
ab
initio
due
to the fact that the judgment was granted against it whilst it was
not a party to the litigation before the court a
quo
when
default judgment was granted.
2. The appellant
argues that it was not a party cited in the action when judgment was
granted due to the fact that the front page
of the summons identifies
the appellant as:
“
Wamakakulus
Construction and Maintenance
CC,
a
close
corporation with registration no 2005/144763/23 and registered
address being 132 Snyman Street, Polokwane, 0699 and whose
and
further particulars are to the plaintiff unknown”
3. Thus, the
citation of the summons clearly refers to a close corporation, the
appellant herein. However, the description of the
particulars of
claim in the body of the summons describes the appellant as follows:
“
The
defendant is Willem Albert Myburgh Oberholzer, a sole proprietor
trading as Wamakulus Construction and Maintenance with Identity
No
[...] and main place of business being 139 Snyman Street
;
Bendor, Polokwane,
whose further particulars are to the plaintiff unknown.
”
4. The appellant
thus argues that the summons depicts a close corporation while the
body of the particulars of claim identifies
a natural person, Mr
Oberholzer.
5.
Default judgment was granted on 7 May 2013 against the close
corporation and not against the natural person. Thus the appellant
argues that the close corporation was not a party to the proceedings
as it was not cited in the particulars of claim. Therefore
no
judgment could be granted against it and as a result the judgment
granted is void
ab
initio.
6. The appellant
brought an application to have the judgment rescinded in terms of
Rule 49(8) of the Magistrate’s Court Rules,
in terms of this
rule a rescission application may be brought within one year of date
of judgment.
7.
The application was opposed by the respondent in the court a
quo
and
several points
in
limine
were
raised, the only relevant point
in
iimine
raised
was that the appellant had not set out a bona fide defence in its
application for rescission as it had simply relied on the
defence
that the wrong party was before court when default judgment was
granted, and had therefor not set out a defence to the
merits of the
respondent’s monetary claim.
8. The only question
therefore that this court has to answer is if the appellant when
bringing the application for rescission had
indeed, as in terms of
Rule 49 of the Magistrate’s Court had a put forth a defence.
9.
The court a
quo
when
hearing the application correctly found that the appellant had the
intention to defend the matter and was not wilful in its
failure to
defend the matter. The court a
quo
also
found that there was a reasonable explanation for the default of the
appellant.
10.
The court a
quo
however
found that the appellant had not set out a defence to the merits to
the respondent’s claim that was
bona
fide,
but
had only set out a technical defence in that the citation of the
appellant was different on the summons than in the particulars
of
claim. Therefore the appellant’s defence was simply that the
incorrect party was before court when judgment was granted
which was
not an answer to the merits of the claim.
11.
The court a
quo
gave
a coherent judgment in the sense that all the relevant case law in
regards to applications of this nature. The court a
quo
also
considered the citation of the appellant and found that the
contradictory citation of the appellant could in terms of the
prescripts of Rule 55 and Section 111 of the Magistrate’s Court
Act, be regarded as a mere misnomer.
12.
The court a
quo
by
reasoning found that an application in terms of section 111 or Rule
55A for an amendment of the summons and/or particulars of
claim is
likely to have been ordered so as to put the real issues before court
for prompt finalisation.
13.
However, on the facts of this case such amendment was never granted
or requested by either the respondents or ordered by the
court a
quo.
Thus,
when the judgment was granted the summons and particulars of claim as
to the appellant before court against which judgment
was sought was
contradictory.
14. The respondent’s
also set out in their opposition to the application for rescission
that the attorney drafting the particulars
was aware of the fact that
the summons and particulars of claim refer to different parties but
due to an oversight from the attorney,
he failed to rectify the
typographical error that had occurred in the citation of the
appellant.
15.
The summons was issued on 3 April 2013 and default judgment was
requested on 27 April 2013 by the respondent but was only granted
on
7 May 2013 against the close corporation. Having knowledge of the
error in the summons and particulars the respondent’s
attorney
persisted incorrectly in the absence of an amendment, to apply for
judgment without seeking an amendment from the court
a
quo.
16.
The court a
quo
found
that the application and the defence set out therein by the appellant
was based on a technicality and that the appellant never
addressed
the defence he had to the monetary claim in the action.
17.
The court a
quo
found
that an application brought in terms of Rule 49(8) does not assist
the appellant due to the fact that he still needed to state
his
defence. The court
a
quo
referred
to the case of
WM Mentz & Seuns (Edms)
Bpk v Katzake
1969 (3) All SA 218
(T)
where
Boshoff, J held in a decision regarding summary judgment, that in an
application to resist summary judgment the applicant
had to set out a
bona fide defence against the action.
18. The WM Mentz
case is distinguishable from this matter as the Mentz matter dealt
with a summary judgment in which the plaintiff
failed to attach the
liquid document on which their claim was based to the summons. The
respondent in the Mentz matter merely therefore
relied on several
technical errors in the application for summary judgement but set out
no defence as to the merits.
19.
Thus, I find that the reliance on the Mentz matter by the court a
quo
is
misplaced due to the fact that in the Mentz matter the technical
defence was a defence raised on the strict forms and procedures
that
find application in summary judgments and was not in general a
reference to a
“
bona
fide
“
defence
that has to be set out by a party in any rescission application.
20.
In
casu
the
technical defence raised by the appellant is one that the citation of
the parties brought about that the incorrect party was
before court
when judgment was granted. This is in a way conceded by the
respondent due to the fact it conceded in the appeal that
an
amendment of the parties was and would be necessary to bring the
correct party before court, and that the pleadings would have
to be
subsequently amended.
21. The defence
raised by the appellant herein is not simply a defence to
technicalities in form. It is a defence raised in substance
due to
the fact that the substitution of parties will have to take place,
alternatively an amendment to bring the correct party
before the
court, as a natural person and close corporation are different legal
personas.
22.
The appellant in bringing the application for rescission had set out
a
bona fide
defence
before the court
a
quo
and
the court a
quo
was
incorrect in finding that no such
bona
fide
defence
had been set out.
23.
The rules specifically make provision for the fact that a defence has
to be set out. It does not require that a bona fide defence
must be
set out on the
merits
.
By analogy a defence raised of jurisdiction or
litis
constatio
or
res judicata
in
essence is a technical defence that does not speak to merits, but
would raise a defence to merits, due to the fact that it raises
an
issue that has to be ventilated between the parties during the course
of trial.
24.
The respondent, well knowing that its particulars of claim and
summons refer to different parties, had an obligation to amend
such
pleadings prior to it applying for default judgment in the court a
quo
and
by not doing so it opened the avenue for the appellant to bring an
application for rescission of the judgment simply on that
point.
25.
The legal principles applicable to a judgment granted where it was
void
ab initio
are
set out in
Siiom v Wallachs Printing
&
Publishing
Co
Ltd 1925 (TPD) 650.
It
is set out in S
v Absalom 1989 (3) SA (A) at 164
that
if such a judgment was granted against any party, that party may even
ignore such a judgment without setting it aside.
26. It is therefore
clear that the respondent instituted action against a natural person
but obtained judgment against a close corporation.
27. In the event
that default judgement was not granted the appellant would have been
able to raise an exception and/or file a plea,
and it would or could
have raised such plea and or exception, not with reference to the
body of the summons, but against the particulars
of claim.
28.
I therefore find that the court a
quo
was
incorrect in not granting the rescission of the judgment and I
therefore propose the following order:
1. The appeal is
upheld.
2. The order granted
by the court a quo dismissing the application for rescission of
default judgment is set aside and replaced
with the following order:
“
The
default judgment granted in the Regional Court for the Regional
Division of Limpopo held at Polokwane under case number
LP/PLKJRC438/13
is rescinded on the basis that it is void ab initio.^
3. The matter is
referred back to the court a qou to proceed before another magistrate
4. The respondent is
ordered to pay the costs of this appeal.
BY ORDER
STRAUSS, AJ
ACTING JUDGE OF
THE HIGH COURT
I AGREE AND IT IS SO
ORDERED
R TOLMAY, J
JUDGE OF THE HIGH
COURT
COUNSEL FOR
APPELLANT: ADV JCG HAMMAN
ATTORNEY: VAN
ONSELEN ATTORNEYS
COUNSEL FOR
RESPONDENT: ADV SM VAN VUUREN
ATTORNEY: CORRIE NEL
INC