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South Africa: North Gauteng High Court, Pretoria
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[2015] ZAGPPHC 417
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Saaiman v Changing Tides 17 (Pty) Ltd (51401/2010) [2015] ZAGPPHC 417; 2015 (4) SA 376 (LP) (11 May 2015)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 51401/2010
DATE OF HEARING: 11 MAY 2015
In the matter between:
LEON
GERHARDUS
SAAIMAN
Applicant
Identity Number: [……….]
and
CHANGING
TIDES 17 (PTY) LTD
Respondent
J U D G M E N T
AVVAKOUMIDES, AJ
1.
The
applicant is the defendant in the main action between the parties,
against whom default judgment was granted on 26 May 2014
in the sum
of R745 298.09 plus interest and costs, and an order that the
applicant’s immovable property be declared specially
executable.
2.
When
the summons was initially served upon the applicant, an appearance to
defend was filed and pursuant thereto, negotiations took
place
resulting in the conclusion of a settlement agreement embodying,
inter alia, consent to judgment.
3.
The
applicant made several payments in terms of the settlement agreement.
The applicant was also, in terms thereof, liable to make
payment of
an initial amount of R20 000.00. This, the applicant did not do, but
made up the amount by making higher payments over
a period of time
over and above the monthly instalments. The respondent did not
initially react to the failure of the applicant
to make payment of
the sum of R20 000.00 but chose, despite this amount (having been
made up) and several other payments having
been made by the
applicant, to apply for default judgment against the applicant on the
basis that no appearance to defend had been
filed. The respondent
ignored the payments made by the applicant and applied for judgment
in the original sum of R745 298.09.
4.
During
argument the respondent abandoned reliance upon the absence of a
condonation application. Clearly the application was based
not on the
provisions of rule 31 (2) (b) and so admitted by the applicant, but
on rule 42 (1) (a). A court is entitled to entertain
an application
ostensibly brought under rule 31 (2) (b), under any other applicable
rule, providing the other formalities have
been met. (See Mutebwa v
Mutebwa
2001 (2) SA 193
(Tk) at 198 C-E).
5.
The
fact that the respondent applied for default judgment on the basis
set out in the notice of motion is misleading, to say the
least,
coupled with the fact that judgment was sought without regard to the
payments already made by the applicant. Once this has
been
established, my view is that the court should without further enquiry
rescind the order. (See Tshabalala v Peer
1979 (4) SA 27
(T) and
Mutebwa above at 199 E-H) ).
6.
Of
greater concern is that the applicant appeared in person on the date
that the default judgment was obtained (having filed a notice
of his
intention to oppose the default judgment application) but stated that
he could not hear the case being called out in court
and thus was
only afterwards advised to apply for rescission. On the papers before
me it appears that the respondent’s attorneys
were aware that
the applicant would be at court on that day and did not draw this
fact to the attention of the court.
7.
The
respondents counsel argued that despite the notice of motion having
been framed along the lines of a default judgment application
based
on the failure of the applicant to file an appearance to defend, the
affidavit dealt with the applicant’s so called
breach of the
settlement agreement. Even if this is so, in my view, the respondent
was not entitled to apply for judgment on this
basis. For this
reason, I am of the view that the respondent should be ordered to pay
the costs of this application.
8.
In the
circumstances I make the following order:
8.1 The default judgment granted
against the applicant under case number 51401/2010 dated 26
May 2010
is hereby rescinded.
8.2 All warrants issued pursuant
to the judgment are hereby set aside.
8.3 The respondent is ordered to
pay the costs of this application.
________________________________
AVVAKOUMIDES, AJ
JUDGE OF THE HIGH COURT
Representation for the Applicant:
Counsel
Adv: K. Fitzroy
Instructed by
Jordaan & Smit Inc.
Representation for Respondent:
Counsel
Adv: W. J. Roos
Instructed by:
Velile Tinto & Associates Inc.