About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 575
|
|
Spear and Others v BMO Food Services (Pty) Ltd (28256/2015) [2015] ZAGPPHC 575 (5 August 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 28256/2015
DATE:
05 AUGUST 2015
In
the matter between:
SPEAR
LESLIE PATRACIA
SPEAR
..................................................................
FIRST
APPLICANT
JEFFREY
SPEAR
..................................................................................................
FIRST
APPLICANT
CANDICE
SPEAR
....................................................................................FIRST
THIRD
APPLICANT
AND
BMO
FOOD SERVICES (PTY)
LTD
....................................................
RESPONDENT
PLAINTIFF
MAVUNDLA.
J,
[1]
The applicants approached this Court
seeking condonation for the late filing of the application for
rescission as well as the late
filing of their replying affidavit.
This Court dismissed the application with costs. . The reasons for
the said dismissal are therefore
set out herein below.
[2]
The application was originally for the
rescission of the judgment:
2.1
granted against of Buttonwood Trading 42
CC on 12 June 2008 under case number 14689 /08, for payments of the
sum of R481 444.30;
2.2
granted against the applicants on 3
September 2009 under case number 3105 /2009, for payments of the sum
of R481 444.30.
[3]
This application was founded on the
affidavit deposed to by the first applicant on the 11 May 2010. The
first default judgment was
against the CC. The second default
judgment was against the three applicants in their personal capacity
as members of the CC.
[4]
The second application is for the
condonationof the late filing of the application for rescission of
the default judgment granted
against the CC and the applicants as
well as for the late filing of the replying affidavit of the
applicants. This application
is premised on the affidavit deposed to
by the second applicant on the 2 April 2014.
The
other two applicants have also deposed to their verifying affidavit.
Nothing
much
turns around this.
BACKGROUND
FACTS
[5]
The salient points and facts which are
not in dispute are:
5.1
the default judgment against the CC was
granted 12 June 2008. The CC was de-registered on the 12 December
2009. Default judgment
was granted against the applicants in their
personal capacity as members of the CC on the against the applicants
on 3 September
2009;
5.2
According to the applicants they only
became aware of the fact that default judgment was granted against
them, when the sheriff
attended at their residence with a warrant of
execution during about January 2010;
5.3
The application for rescission was
brought and served on the respondent's attorneys of record on the 25
May 2010.
5.4
The application for rescission was
brought four (4) months after the applicants became aware of the
default judgments; nineteen
(19) months after judgment was granted
against the CC; four (4) months after judgment was granted against
the individual members
of the CC.
5.5
The respondent filed an answering
affidavit on the 3 June 2010. The matter was initially on the
unopposed roll of the 23 July 2010
but had to be removed from the
roll due to the fact that the application had become opposed. The
application was thereafter placed
on the roll for the 29 November
2010 but subsequently removed from the roll due to the fact there
were no papers in the Court file;
5.6
The applicants then brought the second
application, seeking inter alia, condonation for the late filing of
their replaying affidavit.
[6]
In
an application for both condonation the court will have regard to the
following:
[1]
(i)
Is it in the interest of justice that
condonation should be granted; in deciding the question of interest
of justice, regard must
be had to the following factors:
(a)
The cause of the delay;
(b)
The explanation and reasonableness of
the delay, covering the entire period of the delay;
(c)
The nature and defect causing the delay;
(d)
The effect of the delay in the
administration of justice;
(e)
The prejudice to be suffered by any of
the other parties;
(f)
condonation is sought;
(ii)
The existence of a reasonable defence.
[7]
Where
an application for condonation is sought, the court must first make a
factual finding whether the application has been brought
within the
prescribed time frames. In casu it is common cause that it has been
brought outside the prescribed time frame. The second
consideration
is to determine whether the application has been brought within
reasonable time. In this regard the court makes a
value judgment.
"The majority judgment of Miller JA in Wolgroeirs Afslaer (Edms)
Bpk v Municipaliteit van Kaapstad
[2]
sets out the proper approach to the question of undue delay; first a
court must decide whether the proceedings were brought within
a
reasonable time and, secondly if not, it must decide whether
unreasonable delay ought to be condoned, in which event it must
exercise a discretion taking into account all relevant factors
including, but not limited to, prejudice to the respondent.
[8]
With
regard to condonation, the greater the degree of delay is, the less
are the prospects of success regardless of the strength
of the
grounds upon which the appeal is premised; vide Van Wyk v Unitas
Hospital (Open Democratic Advice Centre as Amicus Curiae)
[3]
;
Immelman v Loubse.r
[4]
The explanation for the delay must cover the entire spectrum of the
delay.
[9]
Where there has been a reckless
disregard to the rules and it appears to the Court that the applicant
has not been serious in prosecuting
the action, condonation will be
refused; vide Smith N. O. Brummer N.O. 1954 (3) 352(0) at 358 A; Zulu
Land
Elictrical
& Engeering Wholesalers
(Pty) Ltd
1975 (1)
SA 612
(D) at 615A-B; Burton v Barlorand Limited
1978 (4) SA 794
(T)
at 797D.
[10]I
now proceed to consider whether the explanation proffered for the
delay is satisfactory and whether the delay is reasonable.
The second
applicant stated that during September / October 2011 he approached
his then attorney at ODBB attorneys in order to
ascertain what the
position would be regarding the rescission application. He was
advised to simply leave it alone as the respondent
had not executed
the judgment. In the matter of Chetty v Law Society, Transvaal
1985
(2) SA 756
(A) the Appellate Division held that the remissness of an
attorney might in certain circumstances not be an excuse. In my view,
the applicant was ill advised to let sleeping dogs lie and was also
content with this advice.
[11]In
February 2012 the applicant was advised by another attorney not to
leave the matter alone. At this stage he had not been
advised of the
ramification that a default judgment could have. He also had no money
to appoint other attorneys because the relationship
with his
erstwhile attorneys had sourced. I must hasten to state that there is
no explanation as to what steps the applicant took
between January
2010 on becoming aware of the default judgment, and the 25 May when
they brought the application for rescission.
This delay remains
unexplained and as a result weighs very heavily against granting
condonation.
[12]The
deponent to the founding affidavit averred that the respondents had
raised a point in limine that the CC was deregistered.
They were then
advised by their erstwhile attorneys that because the CC was
deregistered for failing to file its returns, they
were therefore
obliged to re-register the CC before they can further proceed with
the matter. However, because of financial constrains
they could not
instruct attorneys. In my view, impecuniosity is no defence, having
regard to the fact that the judgments were obtained
for a huge
amount, and as far back as in 2008 and 2009. They have also not
satisfied this Court as to why their replying affidavit
was not filed
between the period July 2010 and November 2010 on both instances when
the matter was on the roll.
[13]It
will be recalled that the first application was removed from the roll
on the 29 November 2010 due to the fact there were
no papers in the
Court file. The applicants fail to explain why they did not seek from
the respondent's attorneys copies of the
papers and re-enrol the
matter. They were prepared to content themselves with the advice that
they should let the matter alone
because the default judgment was not
being executed. In my view, they were reckless to say the least. This
type of attitude towards
litigation does not sway this Court to
exercise its discretion in their favour.
[14]It
is this Court's considered view that the applicants have not
proffered a reasonable and satisfactory explanation for the
entire
period of the delay, referred to herein above. The delay is in my
view, unreasonable and inexcusable as it is to the prejudice
of the
respondent who is entitled to s a speedy finalization of the
litigation. Therefore the application cannot succeed and had
to be
dismissed with costs.
[15]
In the premises for the aforesaid
reasons the application is dismissed with costs.
N.M
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT : 05 AUGUST 2015
APPLICANT'S
ATT : KISSONDUTH ATTORNEYS APPLICANT S ADV : ADV. S McTURK
RESPONDENTS'ATT
: WEAVIND & WEAVIND ATTORNEYS
RESPONDENTS'
ADV : ADV. A. J. VENTER
[1]
Vide
e Thekwini Municipality v Ingonyama Trust
2014 (3) SA 240
(CC) at
246 para [24].
[2]
1978 ( 1) SA 13 (A) 39-42D
[3]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477A-B.
[4]
1974 (3) SA 816
at 824B-C.