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[2014] ZAGPPHC 268
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Swanepoel v Van Zyl (6145/1994) [2014] ZAGPPHC 268 (9 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 1994/6145
DATE:
9 MAY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
JOHAN
ANTON SWANEPOEL
…............................................................................................
APPLICANT
and
HENDRIK
FREDERIK VAN
ZYL
..........................................................................................
RESPONDENT
JUDGMENT
COLLIS
AJ:
INTRODUCTION
[1]
In the present application Applicant seeks an order for the
rescission of a default judgment taken against him on 5 July 1994.
The application is brought in terms of Uniform Rule 31(2) (b) and was
opposed by the Respondent.
BACKGROUND
[2]
On or about 30 November 1992 the parties entered into a purchase and
sale agreement in terms whereof the Respondent purchased
20%
(percent) membership in a Close Corporation, Club Equusite (“the
CC”), for an amount of R 50 000 (Fifty thousand
rand) from the
Applicant.
[3]
It is common cause that the Respondent duly paid the amount of R50
000 to the Applicant, upon which transfer of the 20% (percent)
membership in the CC should have occurred. This, the Respondent
contends never transpired resulting in the Respondent issuing summons
and later obtaining default judgment for the repayment of the
purchase price.
UNIFORM
RULE 31(2)(b)
[4]
Rule 31 (2)(b) provides as follows:
“
A
defendant may within twenty (20) days after he or she has knowledge
of such judgment apply to court upon notice to the plaintiff
to set
aside such judgment and the court may, upon good cause shown, set
aside the default judgment on such terms as to it seems
meet. ”
[5]
For an Applicant to meet the requirements for an application for
rescission of judgment under Rule 31(2)(b) he (the Applicant)
must
show the following:
(a)
He must give a reasonable explanation of his default. If it appears
that his default was wilful or that it was due to gross
negligence
the Court should not come to his assistance.
(b)
His application must be
bona
fide
and
not made merely with the intention to delay the Plaintiff’s
claim;
(c)
He must show that he has a
bona
fide
defence
to the Plaintiffs claim. It is sufficient if he makes out a
prima
facie
defence
in the sense of setting out averments which, if established at trial,
would entitle him to the relief he seeks.
1
He need not deal fully with the merits of the case and produce
evidence that the probabilities are actually in his favour.
[6]
I will proceed to deal succinctly with the requirements as mentioned
above.
ABSENCE
OF WILFUL DEFAULT
[7]
The wilful or negligent nature of the defendant’s default is
one of the considerations which the Court takes into account
in the
exercise of its discretion to determine whether or not good cause has
been shown.
2
It then follows that the reasons for the Applicants’ absence or
default must therefore be set out. This is because it is
relevant to
the question whether or not, his or her default was wilful. In Silber
v Ozen Wholesalers (Pty) Ltd
3
it was held that the explanation for the default must be sufficiently
full to enable the Court to understand how it came about
and to
assess the applicant’s conduct and motives.
[8]
Before a person can therefore be said to be in wilful default, the
following elements must be shown, namely that:
(a)
he had the knowledge that the action is being brought against him or
her;
(b)
there was a deliberate refraining from entering an appearance, though
free to do so; and
(c)
there was a certain mental attitude towards the consequence of
default.
[9]
In his Founding affidavit
4
the Applicant sets out that he had no knowledge of the judgment until
the 6
th
September 2013 when a warrant of execution was served on him. In
answer hereto, the Respondent replied
5
that the summons was duly served at the
domicilium
address
provided by the Applicant in the purchase agreement.
6
In support of such assertion, the Respondent annexed a copy of the
return of service depicting service of the summons on the said
chosen
domicilium.
In
his affidavit, the Applicant proffers no additional information as an
explanation why when the summons was served at an address
elected by
him, he did not receive the summons. He further does not set out that
had he indeed received the summons, he would have
defended the action
of the plaintiff. Significant to note further is that the Applicant
does not deny that the address of service
of the summons, was indeed
his chosen
domicilium.
[10]
In the absence of an explanation of his default, this Court is not
placed in a position to assess the absence of wilfulness
on his part
and as a consequence I cannot find that the first requirement of
absence of wilfulness has been met by him.
BONA
FIDE DEFENCE
[11]
As previously mentioned, in terms of the purchase agreement entered
into between the parties, the Respondent purchased 20%
(percent)
membership interest in the CC for the payment of the sum of R 50
000.
7
The
purchase agreement further contained certain contractual guarantees
undertaken by the Applicant to the Respondent upon signature
of the
agreement. These guarantees included
inter
alia
that:
11.1
the CC had no creditors and was in a healthy financial state; and
11.2
the CC was in possession of all the required licences necessary to
conduct its business e.g. a liquor licence.
[12]
The Applicant in his founding affidavit contends that the Respondent
paid him the R 50 000 and he was duly registered as a
member of the
CC.
8
He further sets out that the Respondent received his own keys to the
premises and was also involved in the decision making and
management
of the CC. He denied that the Respondent was unaware the CC or that
he did not possess a liquor licence at the time
that the purchase
agreement was concluded.
[13]
The Respondent has denied ever having been registered as a member of
the Close Corporation,
9
and similarly he denied having been involved in any management
decisions of the Close Corporation. In support of this assertion
he
annexed to his Answering Affidavit, “HFZ 2” a record
retrieved from the Companies and Intellectual Property Commission
(CPIS) reflecting that throughout the existence of the now
deregistered Close Corporation, the Applicant was the sole member of
the Close Corporation.
[14]
In the present application, the Applicant has failed to file and
Replying affidavit and as a result denied himself the opportunity
to
refute his sole and exclusive membership in the Close Corporation. As
a result hereof, I cannot reject the denial by the Respondent
that
indeed he never held membership in the Close Corporation.
[15]
The Respondent’s denial that he held membership in the Close
Corporation forms the crux of the action brought against
the
Applicant. In view of the Respondent’s denial that he ever held
membership, which the Applicant has failed to refute,
I am not
satisfied that he has a
bona
fide
defence
to the Respondent’s claim.
APPLICATION
WITHIN TWENTY DAYS
[16]
Lastly, I turn to the requirement that an application for rescission
in terms of Uniform Rule 31(2)(b) should be brought within
twenty
days of the Applicant obtaining knowledge of the judgment.
[17]
As mentioned in paragraph 9 supra, the Applicant contends that he
first obtained knowledge of the judgment on 6 September 2013,
when
the Sheriff executed a warrant on him. This is some 19 years after
the granting of the judgment. He went on to state that
he launched
this application before the expiry of the twenty day period and
indeed the Notice of Motion depicts same was issued
on 20 September
2013. Thus within the twenty day requirement as set out in the Rule.
[18]
In rebuttal on point, the Respondent sets out that subsequent to the
judgment being obtained in his favour, a warrant for execution
was
issued and several attempts were made by his erstwhile attorneys to
execute the warrant.
10
As he was unsuccessful and the whereabouts of the Applicant were
unknown at the time, he decided not to spend any further money
on the
matter. Years later, upon learning that the Applicant could be traced
again, he instructed his current attorneys to reissue
the warrant and
to have same executed. After attempting to execute the warrant, the
Sheriff of Pretoria East left three business
cards on 23 July 2013,
25 July 2013 and 29 July 2013 respectively at the Applicant’s
address being 711 Great Dane Street
Garsfontein, Pretoria.
11
No response was received from the Applicant by contacting the
Sheriff. This failure on the part of the Applicant, the Respondent
contends, is indicative of the actions of a person who became aware
of the judgment much earlier than 6 September 2013, but trying
by all
means to avoid execution of the judgment on him.
[19]
A further attempt to execute the warrant on the same address was
later made on 9 September 2013, this after the Respondent
utilised
the services of a locksmith. On this date the Sheriff managed to
serve the warrant personally on the Applicant.
12
[20]
As the Applicant had failed to file a Replying affidavit to rebut
these allegations as mentioned
supra,
I
cannot discount the possibility that indeed the Applicant could have
obtained knowledge of the judgment prior to 6 September 2013,
being
the date on which the execution of the warrant took place. As a
consequence, it remains doubtful whether the present application
was
launched within the twenty day period as prescribed in the Rule.
[21]
For the reasons as set out above, I cannot find all that the
requirements set out in Rule 31 (2) (b) have been met to rescind
the
judgment taken against the Applicant.
[22]
In the result I make the following order:
22.1
The application is dismissed with costs.
C.
J. COLLIS
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION
APPEARANCES
FOR
APPLICANT: ATTORNEY F HARTZENBERG
INSTRUCTED
BY: HARTZENBERG INCORPORATED
FOR
RESPONDENT: ADV S MENTZ
INSTRUCTED
BY: COENRAAD KUKKUK ATTORNEYS.
DATE
OF HEARING: 23 APRIL 2014
DATE
OF JUDGMENT: 9 MAY 2014
1
Grant
v Plumbers ( Pty) Ltd
1949 (2) SA 470
(O)
2
Harris
v Absa Bank Ltd t/a Volkskas 2006 (
4) SA 527
(T) at 530B-531B
3
1954
(2) SA 345
(A) at 353A
4
Founding
Affidavit par 3 p 6
5
Answering
Affidavit par 27 p 37
6
Annexure
“NFZ 1”, Answering Affidavit p 40
7
Founding
Affidavit par 9 & 10 p 7 & 8
8
Founding
Affidavit par 15 & 18 p 9 & 10
9
Answering
Affidavit para 3.6 & 3.8 p 23
10
Answering
Affidavit par 4 p 24
11
Answering
Affidavit annexure “ HFZ 9” p 73
12
Answering
Affidavit par 4 p 26