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[2015] ZAGPPHC 307
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Saaiman v Changing Tides 17 (Pty) Ltd (51401/2010) [2015] ZAGPPHC 307 (12 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
DATE: 12 MAY 2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
LEON
GERHARDUS
SAAIMAN
.....................................................................................................
Applicant
Identity Number:
[...]
and
CHANGING
TIDES 17 (PTY)
LTD
..............................................................................................
Respondent
REASONS FOR
JUDGMENT
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 trie 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 ihe failure of the applicant to file an appearance to
defend, the affidavit deait 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.