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[2015] ZAGPPHC 480
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Carenet Properties (Pty) Ltd v Boshoff N.O (57562/13) [2015] ZAGPPHC 480 (12 June 2015)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 57562/13
DATE: 12 JUNE 2015
In
the matter between
CARENET
PROPERTIES (PTY)
LTD
..................................................................................
Applicant
And
GUDRUN HANS BOSHOFF
N.O
........................................................................................
Respondent
JUDGMENT
KOOVERJIE AJ:
A.
NATURE OF THE APPL1CATION:-
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.
Applicants 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
tc 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 i the alternative in terms of
Rule 42 (1) and the common
law respectively. Thi Court however has a
discretion whether to grant a rescission in respect c either of the
aforesaid provisions.
33.
In the premises this Court finds that
there is, particularly in respect of th interpretation of the
agreement an issue. In light
thereof it should b ventilated between
the parties. There is a prima facie case made out on th papers.
G.
COSTS:-
34.
The Respondent particularly argued that a
punitive cost order should b granted against the Applicant as this
matter was launched
for the so purpose of delaying the finalisation
of the deceased’s estate and to frustra the Respondent.
35.
The Applicant’s counsel contended
that it has a justified defence and tf- delay was a mere 4 days. A
reasonable explanation
for the cause of 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;
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 Councii v Tshivhase
[1992] ZASCA 185
;
1992 (4)
SA 852
(A) at 859 E-F
[2]
Lazarus vABSA Bank
1999 (2) SA 782
(W)