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[2015] ZAGPPHC 544
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Imperial Crown Trading 248 (Pty) Ltd v Investec Private Bank Limited (2013/1853) [2015] ZAGPPHC 544 (30 July 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
CASE
NO: 2013/1853
In the matter between:
IMPERIAL CROWN TRADING 248 (PTY)
LTD
APPLICANT
and
INVESTEC PRIVATE BANK
LIMITED
RESPONDENT
J U D G M E N T
WRIGHT J
1.
The
respondent bank launched motion proceedings, in one application,
against the applicant and against twenty five other respondents.
The
applicant was cited as fifth respondent. The applicant’s
erstwhile attorney delivered a notice of intention to oppose
the main
application. At least two extensions of time were granted to the
applicant within which to file an answering affidavit.
No answering
affidavit was forthcoming. A notice of set down, placing the matter,
correctly, on the unopposed roll was served on
the applicant’s
erstwhile attorney at a time when he was still the applicant’s
attorney of record. The notice sets
the matter down for a particular
date at a certain time “
or
so soon thereafter as Counsel for the Respondent may be heard
.”
In my view nothing turns on the incorrect reference to a respondent’s
counsel rather than to an applicant’s
counsel.
2.
The
notice contains an incorrect case number. The case number on the
notice of set down is that of a different court file in which
the
parties are the same as in the main application in the present case.
It appears that the Registrar opened a duplicate file
with a
different case number. At least because the incorrect number did not
cause either the applicant or the applicant’s
erstwhile
attorney to do anything or not to do anything it is not relevant to
the present proceedings. The notice of set down did
not specify that
relief would be sought against the fifth respondent only. In my view
nothing turns on this. In my view none of
the three imperfections in
the notice of set down, considered alone or in combination, led to
the judgment being sought or granted
erroneously within the meaning
of Uniform Rule 42(1)(a).
3.
The
applicant’s counsel suggests that the notice of set down should
have been served on the applicant’s present attorney.
This
attorney came on record after the set down was served on the
erstwhile attorney while that attorney was still on record. I
disagree with counsel. See
De
Wet and others v Western Bank Ltd
1979 (2) SA 1031
SCA
at
1038.
4.
The
applicant relies on the common law. The question, in this case, is
whether or not the applicant has shown sufficient cause.
See
Colyn
v Tiger Food Industries 2003(6) 1 SCA
at
paragraph 4.
5.
The
papers in the present application are lengthy and complex. Both sides
have filed two sets of papers. The heat between the parties
and
between their attorneys rises as one ploughs through the papers. The
respondent seeks to strike out certain portions of the
applicant’s
papers. I am not inclined to grant the striking out. Hard talking is
done in portions of the papers sought to
be struck but in my view the
applicant has not crossed the line. The statements are made in the
course of presenting a defence.
Mere repetition does not prejudice
the respondent. In my view it would be fair to order the parties to
pay there own costs in the
striking out application.
6.
In
short, the applicant says that it intended to oppose the main
application and was in the process of preparing answering papers
when
judgment was taken against it. The applicant claims to have been
unaware of the notice of set down or the date of set down.
The
applicant is a very unlucky litigant. Its erstwhile attorney, through
an office error, missed the notice of set down. The applicant’s
present attorney, through oversight, missed a clear reference to the
relevant court date in a letter sent to him by the respondent’s
attorney well before the court date but after the applicant had
changed attorneys.
7.
The
respondent’s present attorney provided, in a supplementary
affidavit, a copy of an e-mail sent to Mr Du Raan, the moving
force
behind the applicant. This e-mail should have featured in the first
set of opposing papers. The e-mail ostensibly informs
Mr Du Raan,
timeously, of the looming court date. Mr Du Raan denies having
received the e-mail. He points to no extraneous proof
that the e-mail
was sent, received or read. He says that the e-mail is a
fabrication.
8.
The
respondent relies on the decision in
Colyn
,
at paragraph 12, saying that the applicant’s attorneys’
negligent conduct attracts for the applicant the onus to show
that it
has good prospects on the merits of the main application rather than
merely a bona fide defence which has some prospect
of success. Even
assuming for the moment, and in the respondent’s favour, that
the explanation for the applicant’s
default was weak and that
its attorneys were as slack as those in
Colyn,
I
would distinguish
Colyn
from the present case. In
Colyn
,
the respondent in the rescission application had instituted an
action. In the present case the respondent launched an application.
The present applicant, in the main application, would thus enjoy the
benefit of the decisions in
Plascon-Evans
and related cases where sufficient disputes of fact exist. This is so
even where the present applicant (the respondent in the main
application) bears the onus to prove a particular defence. See
Rawlins
v Caravantruck (Pty) Ltd 1993(1) SA 537 A
at
541-542. In the present application the cause of action is
non-payment of a loan. Without putting too fine a point on it, the
defence raised is that the agreement was a sham involving a
contravention of section 38 of the 1973 Companies Act in which the
respondent participated. Both sides make strong allegations which are
denied by the other side. There are far reaching disputes
of fact. In
my view the applicant has done just enough to appear to raise a bona
fide defence with some prospect of success, taking
into account the
degree of the applicant’s legal teams’ less than ideal
conduct.
9.
The
opposition to the application was not unreasonable and in my view the
parties should pay their own costs.
ORDER
1.
The
application by the respondent to strike out is dismissed. The parties
shall pay their own costs.
2.
The
default judgment granted against the applicant ( fifth respondent in
the main application) is rescinded. The parties shall pay
their own
costs.
GC WRIGHT J
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION,
PRETORIA
On behalf of the Applicant:
Adv P Louw SC
Instructed by:
Geyser Van Rooyen
012 344 1445
On behalf of the Respondent:
Adv M Leathern SC
Instructed by:
Van Der Merwe Du Toit Inc
012 452 1314
Date of Hearing:
30 July 2015
Date of Judgment:
30 July
2015