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[2015] ZAECMHC 88
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Ansong v Eastern Cape Development Corporation (CA&R 54/13) [2015] ZAECMHC 88 (15 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO: CA&R 54/13
DATE:
15 DECEMBER 2015
In
the matter between:
SAMUEL
DANKYI
ANSONG
.................................................................................................
Appellant
And
EASTERN
CAPE DEVELOPMENT
CORPORATION
...................................................
Respondent
JUDGMENT
MAKAULA
J
:
A.
Introduction
:
I
should note upfront that this judgment was supposed to have been
written by Hinana AJ.
[1]
This is an appeal against an order made by the magistrate, Butterwoth
dismissing an application for rescission of judgment.
The order
and reasons thereof read as follows;
“
Judgment
and reasons
Having
heard both attorneys for applicant and respondent.
The
court is of the view that application for rescission be dismissed
with costs.
That
found that:
Rule
49 (3) not complied with.
It
is void aborijinare, there must be an affidavit showing the bona fide
defence in the main action.
Good
cause must be shown as to why applicant was in default.
The
court found that the judgment which forms the cause of the
application was for cancellation of lease agreement.
In
the circumstances the application for rescission is dismissed with
costs.”
B.
Background facts:
[2]
The respondent issued summons against the appellant on 5 July 2004
seeking the following order;
“
(a)
That the lease agreement be declared to be cancelled;
(b)
An order ejecting the defendant from the property described as 6
Timber House, Caravan Park, Butterworth together with all those
occupying it by a date to be determined by the court;
(c)
An order directing that should the defendant and those occupying not
have vacated the premises by the date determined by the
court, that
eviction be carried out by and under the control of the Sheriff of
the court assisted by the South African Police Services
insofar as it
may be necessary;
(d)
Judgment in the amount of R14 394, 87;
(e)
Interest on the capital at the rate of 3% above the prime rate
offered by First National Bank from time to time;
(f)
Costs of suit;
(g)
Further and/or alternative relief.”
[3]
The return of service, though faint, reflects that the summons was
served personally at the place of residence of the appellant
on 13
July 2004. Furthermore, the record of proceedings reflects that
a notice in terms of Section 4 (2) of the Prevention
of Illegal
Eviction from and Unlawful Occupation Act No 19 of 1998
(the
PIE Act)
was filed with the clerk of
the court on 6 July 2004 after it had been served on one Zukiswa
Sompeta
(Sompeta)
who
is a secretary at the appellant’s place of employment.
There is no indication that the notice in terms of Section
4 (2) was
served on the appellant. The appellant did not defend the
action resulting in default judgment against him.
[4]
On 28 August 2012, the appellant brought an application for
rescission of the default judgment. The appellant averred
in
his supporting affidavit that the default judgment was void
ab
origine
and was erroneously granted in
complete disregard of the provisions of Section 4 of the PIE Act by a
failure to serve the notice
in terms of Section 4 (2) of the PIE Act
(the notice)
on
him personally and (b) the respondent sought a declarator which was
outside the jurisdiction of the magistrate’s court.
C.
Appellant’s case
:
[5]
The appeal is before us on the following grounds;
“
1.
The Learned Magistrate erred and misdirected himself in not
appreciating and understanding that the appellant in his founding
affidavit has set out reasonable grounds for his failure to make
opposition in the main case.
2.
The Learned Magistrate erred and misdirected himself in finding that
the appellant has not disclosed that he has a
bona fide
defence in the main case as the appellant has raised a legal defence
which goes straight to the fact that the judgment given against
him
in the main case, was erroneously given in total disregard of Section
4 of Act 19 of 1998.
3.
The Learned Magistrate erred and misdirected himself in not
appreciating that the application for rescission was based on void
ness of the judgment.
4.
Such other reasons as will appear after receipt of a statement
referred to in Rule 51 (8) of the Rules regulating the conduct
of the
proceedings of the magistrate’s court of South Africa and, in
this regard the appellant reserves his right to supplement
his
reasons for the appeal.”
[6]
Mr Nkubungu, for the appellant, submitted that the notice was served
on Sompeta and not on the unlawful occupier i.e. the appellant.
He further argued that the fact the notice was not served on the
appellant, proves the reason why the appellant was not at court
when
the matter was heard.
D.
Respondent’s case
:
[8]
In opposing the appeal, the respondent raised the following point of
law;
“
1.1
Non-compliance with the rules of the above honourable court in
particular Rule 49
(3) of Rules of Magistrate’s court, which
rule requires an applicant in the application for rescission of
judgment to state
clearly and concisely the reasons of the default as
well as the prospects of success on the main case.
1.2
Failure to comply with this requirement renders the applicant’s
application to be defective.
1.3
I submit that the applicant has failed to comply with this
requirement
and therefore the applicant’s application is
fatally defective and stands to be dismissed with costs on a punitive
scale.”
(sic)
[9]
Mr Hobbs, counsel for the respondent, argued that the appellant
failed to comply with the peremptory requirements of Rule 49
(3) of
the magistrate’s court act.
E.
Analysis
:
[10]
Firstly, it is common cause that the affidavit in support of the
application for rescission does not allege a defence to the
main
action. Mr Nkubungu, did not argue that there is a defence raised in
the affidavit other than relying on the failure to serve
the notice.
In fact, he could not have argued otherwise because the affidavit by
the appellant is silent in this regard.
[11]
Secondly, it is further common cause that the notice was served on
Sompeta at the appellant’s offices and the summons
was served
on the appellant personally. This therefore puts paid the fact
that the appellant was not aware of the proceedings
against him.
Being aware of the proceedings against him, the appellant failed to
file a notice of intention to defend.
[12]
I am of the view that once I uphold the point in
limine
raised by the respondent, there shall be no need for me to deal with
the other points raised by Mr Nkubungu. However, I think
it is
prudent of me to deal briefly with the points raised by Mr Nkubungu.
[13]
The effect of not complying with the statutory requirement
(the
notice in this matter)
is not per se fatal. I found support for this proposition in
the case of
Unlawful
Occupiers, School Site v City of Johannesburg
[1]
wherein the Supreme Court of Appeal found that the notice, which
stated that the application was being brought in terms of Section
4
(1) instead of Section 6 of the PIE Act was a mistake.
Furthermore, that case, the grounds of the application stated in
the
notice were insufficient to meet the requirements of Section 4 (5)
(c). Despite these shortcomings, the court held as
follows;
“
Nevertheless,
it was clear from the authorities that even where the formalities
required by statute were peremptory, it was not
every deviation from
the literal prescription that was fatal. Even in that event,
the question remains whether, in spite
of the defects, the object of
the statutory provision had been achieved.”
[2]
[14]
In my view, central to the application before this court is whether
there is compliance with Rule 49 (3) of the Magistrate’s
Court
and the reasons for being in default.
[15]
Rule 49 (3) of the Magistrate’s Court Rules reads as follows;
“
Where
an application for rescission of a default judgment is made by a
defendant against whom the judgment was granted, who wishes
to defend
the proceedings, the application must be supported by an affidavit
setting out the reasons for the defendant’s
absence of default
and the grounds of the defendant’s defence to the claim.”
[16]
In my view, the non-compliance with Rule 49 (3) is fatal to the case
of the appellant. The following dictum by Zuluman
JA
[3]
finds application in this matter;
“
[6]
Put differently, the provisions of the Rule 49 (3) are peremptory
when a court considers an application to rescind a default
judgment.
More particularly, the wording of the subrule makes it clear that the
grounds of the defendant’s defence
to the claim must be set
out. Where the objection is that the judgment was void
ab
origine,
compliance with Rule 49 (3)
nevertheless involves further proof of the existence of a valid and
bona fide
defence to the claim.”
Consequently,
the appeal is dismissed with costs.
M
MAKAULA
JUDGE
OF THE HIGH COURT
I
agree.
M
N HINANA
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
Applicant:
Mr Nkubungu
instructed by
Makade
Inc
MTHATHA
Respondent:
Adv Hobbs
instructed by
Ross
G M Sogoni Inc
BUTTERWORTH
[1]
2005
(4) SA 199 (SCA)
[2]
Page
209 F-G and case cited therein
[3]
Leo
Manufacturing CC v Robor Industrial (Pty) Ltd
2007
(2) SA page 4 para D