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[2015] ZAGPPHC 381
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Carenet Properties (Pty) Ltd v Boshoff N.O (57562/13) [2015] ZAGPPHC 381 (12 June 2015)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 57562/13
DATE:
12/6/2015
In the matter between:-
CARENET
PROPERTIES (PTY)
LTD
..................................................................................
Applicant
And
GUDRUN HANS
BOSHOFF
N.O
........................................................................................
Respondent
JUDGMENT
KOOVERJIE AJ:
A.
NATURE OF THE
APPLICATION
:-
1. This is an application
for the rescission and setting aside of the default judgment granted
by the Registrar against the Applicant
on 3 December 2013. In
addition the Applicant seeks condonation of the late filing of the
application.
2. This application has
been brought under Rule 42,
alternatively
the common law,
further alternatively
Rule 31 (2) (b) of the Uniform Rules of
Court.
3. Although the Applicant
launched the application, this matter was set down for hearing by the
Respondent. No reasons were
proferred by the Applicant why it
failed to pursue the matter. Counsel for the Respondent
reiterated that this application
was just a ploy to delay the
finalisation of this matter and particularly to finalise the
deceased’s estate.
B.
THE PARTIES
:-
4.
The Applicant, Carenet Properties (Pty) Ltd will be referred to as
“
Carenet”
.
The Respondent, Gudrun Hans Boshoff N.O. referred to as
“
the
executor”
; and
Ms H Hall, the deceased.
C.
BACKGROUND
:-
5.
The dispute emanates from an agreement between Carenet and the
deceased. On 9 September 2010, the Carenet and the deceased
concluded a written agreement on the basis that the deceased was
granted the right to occupy the property known as Unit 4, De
Groenkloof in return for payment of a loan in an amount of
R360 000,00 (referred to commonly as a
“
life
right agreement”
).
6. The deceased’s
right to occupation would automatically terminate on the date of her
death.
7. The deceased passed
away on 20 November 2011.
8. On 3 September 2013 the
executor furnished a notice of termination of the agreement in
writing and demanded that Carenet makes
payment in the amount of
R360 000,00.
9. Summons was issued and
granted against the Applicant.
D.
THE DISPUTE ON
THE MERITS
:-
Without being
required to go into detail regarding the merits in this matter, it is
pertinent to highlight the salient issues which
related to the
interpretation of the agreement.
●
Applicant’s
case
10. Essentially the
Applicant submitted that the cause of action in the Respondent’s
particulars of claim cannot be sustained,
hence the default judgment
was therefore granted erroneously.
11. The wording of the
agreement is Afrikaans. The parties however differ on the
interpretation of the various clauses.
The Applicant’s
version is as follows:
11.1
Clause 10 of the agreement stipulates that Carenet shall repay the
loan within 30 days of termination of
the right of occupation
provided that the deceased had
concluded
a new agreement with a third party
in
terms of which such third party is granted a right of occupation of
the property against advancement of a new loan;
11.2
If the
deceased’s right of
occupation of the property terminates within two years
after the date of the agreement, Carenet shall repay 93% of the loan
amount to the deceased’s estate;
11.3
Clause 15 is only applicable if clause 1.18 has been complied with
(which is a resolutive condition);
11.4
In terms of clause 1.18 the dissolution of the agreement is
conditional on the sale and transfer of the deceased’s
property
at 4 Marmanet, Bergrivier, Kempton Park on or before 9 November 2010
(
“
Marmanet
property”
).
(my emphasis).
12. The deceased passed
away on 20 November 2011, which was less than 2 years after the date
of the conclusion of the agreement.
The Marmanet property was
only transferred on 11 November 2010. In other words the full
effect of the sale and transfer had
not occurred.
13. Furthermore the
deceased’s right of occupation was terminated on the date of
the death of the deceased if one has regard
to clause 2.5 of the
agreement.
14. At no stage was the
right to occupation to the unit sold to a third party, neither had
Carenet received any new loan amount
in respect of such sale.
15. In summaration,
Carenet is therefore not required in terms of the contract to repay
the original loan amount to the deceased’s
estate in that:
15.1 The
deceased’s right of occupation ended on the day she passed away
and the Respondent was only entitled
to the repayment of the loan
upon the resale of the life right of the unit to a third party (as
envisaged in clause 10 of the agreement);
15.2
Clause 15 finds no application in this agreement. It would only
be applicable if clause 1.18 was complied
with;
15.3 It
is common cause that the Marmanet property was not transferred by the
9
th
of November 2010.
●
The
Respondent’s case
16. The Respondent’s
interpretation of the agreement is contrary to the Applicant’s.
The salient points of departure
are:
16.1 It cannot be
that clause 15 is only applicable if clause 1.18 has been fully
complied with. All that clause 15 states
is that the resolutive
condition shall be applicable if clause 1.18 is in fact completed
(
“
filled in”
)
in the agreement;
16.2 The Respondent’s
claim was premised on the following: Claim 1
●
The deceased
passed away on 30 November 2011, being less than two years after the
date of the agreement;
●
The right of
occupation of the deceased had as a result automatically terminated;
●
Carenet
had concluded a new agreement with a third party in terms of which
said party was granted a right of occupation of the property
against
the advancement of a
“
new”
loan.
16.3 In the
alternative: Claim 2
●
Marmanet was
not sold and transferred by 9 November 2010 and the deceased did not
waive the resolutive condition;
●
The
Respondent had in terms of clause 15.3 of the agreement given notice
to terminate the agreement and after cancellation to claim
payment of
the amount of R360 000,00;
●
On 30
September 2013 the Respondent had in writing given notice of such
termination.
17. On the papers
before this Court the only other agreement is a MOU entered into with
Aldem Healthcare (Pty) Ltd, C’EST
LA Vie Trust and Carenet.
Such agreement does not appear to be a third party agreement as
envisaged in the agreement.
This argument was raised by the
Applicant. This in itself creates a dispute as to whether a
third party agreement was in
place.
18. It is therefore
apparent that a dispute in respect of the interpretation of the
agreement exists which deserves to be ventilated
at a trial.
E.
CONDONATION
:-
19. In terms of Rule
31 (2) (b), an application for rescission must be served and filed
within 20 days of obtaining knowledge thereof.
20. If such
application is not brought timeously, then the Applicant can seek
relief in terms of Rule 27 where the Court will exercise
its
discretion, upon good cause shown, to condone such non-compliance.
21. Having heard the
parties, the Applicant demonstrated it was four days late and
proferred a sufficient explanation to the effect
that from 13 March
2014 to 17 April 2014 it had consulted with its attorney, attempted
to locate the Court file, instructed counsel
to draw the papers and
eventually file same.
22. Counsel for the
Respondent contended vehemently that good cause has not been shown,
particularly in that the Applicant has
failed to furnish a
reasonable explanation and attempted to mislead the Court in that:
22.1 the Applicant
was aware of the default judgment already on 11 March 2014 by way of
correspondence from its attorney;
22.2 the application
is a ploy to delay the Respondent’s claim and thereafter
finalise the deceased’s estate.
23. Even if the
Respondent’s version is taken into account, then the Applicant
was 6 days late in filing this application.
24. A further factor in
not having knowledge of the action proceedings was that the summons
was served at the old address which
is set out in the agreement.
24.1 The Respondent
contended that the summons was served in accordance with clause 1.1
and 14.6 of the agreement, at the chosen
address;
24.2 The Applicant
contended that the summons should have been served on the chosen
domicilium citandi et executandi
of the Applicant. This cannot be so as the agreement made provision
that an address be listed whereby all notices would be served,
which
would have included the summons.
25. In any event, this
takes the matter no further. It is accepted that the Respondent
through its director, Nellie van Staden,
only became aware of the
matter after default judgment was granted. In light thereof,
the Court accepts therefore that
the Respondent could not have
been in wilful default in failing to defend the matter.
26. The Court is satisfied
that a valid and reasonable explanation was furnished as to why there
was default on the Respondent’s
part. This is not such a
case.
27.
This Court appreciates that condonation is an indulgence which may be
refused in cases of flagrant breaches of the Rules
[1]
.
F.
BONA FIDE
DEFENCE
:-
28. For the Applicant to
make out a case that the defence is
bona fide
it must at least
make out a
prima facie
case which, if established at the trial
would entitle him to the relief sought.
29. In this
application therefore, it is not expected of the Applicant to fully
deal with the merits of the case and produce evidence
that the
probabilities are actually in its favour.
30.
This Court is not expected to scrutinize too closely whether the
defence is well founded. The essential enquiry is whether
“
prima facie
,
there are sufficient reasons for allowing the defendant to lay before
Court facts he thinks necessary to meet the plaintiff’s
claim”
. Where
the defendant had never acquiesced in the plaintiff’s claim,
but persisted in disputing it, the Court should
be slow to refuse him
an opportunity of having his defence heard.
31.
The object of rescinding a judgment is
“
to
restore a chance to air a real dispute”
[2]
.
32. This application
for rescission was brought in terms of Rule 31 (2) (b) and in the
alternative in terms of Rule 42 (1) and the
common law respectively.
This Court however has a discretion whether to grant a rescission in
respect of either of the aforesaid
provisions.
33. In the premises this
Court finds that there is, particularly in respect of the
interpretation of the agreement an issue.
In light thereof it
should be ventilated between the parties. There is a
prima
facie
case made out on the papers.
G.
COSTS
:-
34. The Respondent
particularly argued that a punitive cost order should be granted
against the Applicant as this matter was launched
for the sole
purpose of delaying the finalisation of the deceased’s estate
and to frustrate the Respondent.
35. The Applicant’s
counsel contended that it has a justified defence and the delay was a
mere 4 days. A reasonable explanation
for the cause of the delay was
furnished in that regard.
36. The issue of costs are
in the discretion of the Court which is a judicial discretion must be
exercised on grounds upon which
a reasonable person could have
arrived at. In light thereof the Court is obliged to weigh
various issues which may have a
bearing on the question of costs and
consequently make an order which is fair and just.
37. Having regard to the
findings in respect of the delay and the probable prospects of
success on the part of the Applicant, a
fair cost order would warrant
that each party should bear its own costs.
H.
CONCLUSION
:-
In the premises this
application is rescinded and the condonation of the late filing of
the application is granted.
I.
ORDER
:-
The following order
is made:
(1) Condonation of
the late filing of the application is granted;
(2) The default
judgment granted against the Applicant on 3 December 2013 is
rescinded;
(3) Each party to
pay its own costs.
H K
KOOVERJIE
ACTING JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 8 June 2015
JUDGMENT
DELIVERED: 12 June 2015
FOR
THE APPLICANT: Adv C J Welgemoed
ATTORNEYS
FOR THE APPLICANT: Carrim Attorneys
FOR
THE RESPONDENT: Adv N Breytenbach
ATTORNEYS
FOR THE RESPONDENT: Froneman Roux & Streicher
[1]
Tshivhase Royal Council v Tshivhase
[1992] ZASCA 185
;
1992 (4) SA 852
(A) at 859 E-F
[2]
Lazarus v ABSA Bank
1999
(2) SA 782
(W)