Leo Manufacturing CC v Robor Industrial (Pty) Ltd t/a Robor Stewarts & Lloyds (608/04) [2006] ZASCA 17; 2007 (2) SA 1 (SCA) (20 March 2006)

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Leo Manufacturing CC v Robor Industrial (Pty) Ltd t/a Robor Stewarts & Lloyds (608/04) [2006] ZASCA 17; 2007 (2) SA 1 (SCA) (20 March 2006)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO 608/2004
In
the matter between
LEO MANUFACTURING CC Appellant
and
ROBOR INDUSTRIAL (PTY) LTD
t/a ROBOR STEWARTS & LLOYDS Respondent
Coram: Zulman, Van Heerden JJA and Cachalia AJA
Heard: 28 FEBRUARY 2006
Delivered: 20
MARCH 2006
Summary
:
Rule 49(3) of the
Magistrates’ Court Act, 32 of 1944 precludes a Magistrates’ Court
from rescinding a default judgment in the
absence of the applicant
for rescission setting out the grounds of the defendant’s defence
to the claim. This is so even if the
proceedings in which the
judgment was obtained are a nullity.
Neutral citation: This judgment may be referred to as
Leo Manufacturing CC v Robor Industrial (Pty) Ltd t/a Robor
Stewarts & Lloyds
[2006] SCA 19 (RSA)
___________________________________________________________
JUDGMENT
___________________________________________________________
ZULMAN JA
[1] The issue in this appeal is whether the
provisions of Magistrates’ courts rule 49(3) preclude a court from
rescinding a default
judgment granted in circumstances where the
proceedings are a nullity, because the grounds of defence have not
been set out in the
application for rescission.
[2] The relevant history of the matter is as follows:
(a) The ‘proceedings’ in this matter
commenced with the issue of a summons in the Durban Magistrates’
Court on 25 September
2001 in which the respondent (plaintiff)
claimed payment of R62 998,07 in respect of goods sold and delivered.
The defendant was
cited in the summons incorrectly as ‘
Leon
Manufacturing CC t/a Manufacturing CC t/a Leon Manufacturing’ as
opposed to
Leo
Manufacturing CC t/a Leon Manufacturing. (My
emphasis.)
(b) Unsuccessful attempts were made on 1
October and 30 November 2001 by the sheriff to serve the summons.
(c) On 21 February 2002 service of the
summons was effected by affixing same to the main door of an
allegedly chosen
domicilium citandi et executandi
in terms of
rule 9(6). The sheriff’s return of service describes the defendant
as ‘Leon Manufacturing CC t/a Leon Manufac.’
(d) The respondent then filed a request for
default judgment with the clerk of the court citing
Leon
Manufacturing CC t/a Leon Manufacturing as the defendant. On 13 May
the clerk of the court granted default judgment in the sum of
R62
998,07 together with interest and costs in terms of the request made.
(e) A writ was issued by the respondent on
14 May 2002. After various attempts to serve the writ failed, it was
reissued on 30 August
2002. In the writ as reissued, the name of the
defendant was altered to read (correctly)
Leo
Manufacturing CC
t/a Leon Manufacturing.
(f) On 1 November 2002 the sheriff attached
a number of assets of the appellant.
(g) This gave rise to an application
launched by the appellant on 26 November 2002 for the
setting aside of the attachment
on the basis that the appellant was
never served with the summons. The reason given was that the
appellant had, prior to the date
of service of the summons, changed
the address of its registered office from the address where the
summons was served. It appears
from the relevant form annexed by the
appellant to its replying affidavit in its subsequent application for
rescission of the default
judgment (form CK 2A) that this was indeed
done with effect from 23 January 2001. It was therefore contended
that no judgment had
been granted in favour of the respondent and,
consequently, that the writ was a nullity. The respondent brought a
counter-application
for the amendment of the citation of the
appellant so as to cite the appellant by its correct name, ‘
Leo
’
instead of ‘
Leon
’ Manufacturing CC.
(h) In a judgment dated 4 April 2003, the
Durban Magistrates’ Court refused the application for setting aside
the writ and granted
the counter-application to amend the citation of
the appellant.
(i) An application for rescission of the
judgment was then launched by the appellant on 8 May 2003. In the
founding affidavit in support
of the application, the appellant
alleged that there had not been proper service of the summons.
Consequently, it was contended that
the proceedings were a nullity,
the judgment should not have been entered and the appellant was
accordingly entitled to have the
judgment set aside. No grounds were
set out in the founding affidavit in respect of the appellant’s
defence to the respondent’s
claim in the initiating summons. The
application was opposed by the respondent who filed an answering
affidavit. The appellant then
filed a replying affidavit which also
failed to set out properly any defence on the merits to the claim.
(j) Judgment was delivered by another
magistrate of the Durban Magistrates’ Court on 15 July 2003
dismissing the appellant’s rescission
application with costs. The
appellant thereupon appealed to the Full Court of the Natal
Provincial Division. The appeal was dismissed
with costs, as was an
application for leave to appeal to this court. However pursuant to a
petition such leave was granted by this
court.
(k) The respondent has filed a notice
intimating that it does not intend to oppose the appeal and that it
abides the decision of this
court.
[3] Magistrates’ courts rule 49(3)
provides:
‘
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
or default and the grounds of the defendant’s
defence to the claim.’
[4] As previously stated the appellant at
no time set out ‘the grounds of its defence’ to the respondent’s
claim as required
by rule 49(3). It was upon this basis that the
magistrate and the court
a quo
refused to rescind the default
judgment. Reference was made to two cases, namely,
Cooper &
Ferreira v Magistrate for the District of Humansdorp
1
and
F & J Car Sales v Damane
.
2
In
Cooper & Ferreira
it was held, with reference to rule
49(2) (the predecessor to the present rule 49(3)), that it is clear
that an application for rescission
has to be supported by an
affidavit setting out not only the reasons for the defendant’s
absence or default, but also the grounds
of the defendant’s defence
to the action or proceedings in which the judgment was given.
3
In the
F & J
case, which dealt specifically with the
present rule 49(3), the Full Court came to exactly the same
conclusion.
[5] I will assume, without deciding the matter, that the
default judgment granted in this matter was void
ab origine
by
reason of non-service of the initiating summons upon the appellant.
However I am of the opinion that the second magistrate was
correct
when, after referring in his judgment to the cases of
Cooper &
Ferreira
4
and
Standard Bank of SA Ltd v El-Naddaf
5
,
he stated that:
‘
Now following the rationale of those two decisions,
it is totally unnecessary for the Court to rule whether the default
judgment was
void
ab origine
or not. The fact of the matter
is, and this point has been taken by the Respondent, that there is
absolutely no mention of a defence
set out in the initial affidavit
and there is the mere mention of a possible defence in the replying
affidavit. It certainly does
not comply with the requirements that it
be set out with sufficient particularity so as to enable the Court to
determine whether
or not there is a valid and
bona fide
defence.’
[6] Put differently, the provisions of rule 49(3) are
peremptory when a court considers an application to rescind a default
judgment.
More particularly the wording of the sub-rule 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
.
6
[7] In so far as sub rule 49(8) may be relevant to the
matter, in that it specifically refers to the rescission or variation
of a
judgment which is sought inter alia on the ground that it is
void
ab origine
and requires the application to be served and
filed within one year after the applicant first had knowledge of such
voidness, this
in no way overrides the provisions of rule 49(3). Rule
49(8) simply provides a different time period for the filing and
service of
an application for rescission of a judgment (not only a
default
judgment) on certain specified grounds.
7
In their comment upon rule 49(8), the learned authors Erasmus and Van
Loggerenberg
8
make the point that an applicant seeking rescission of a
default
judgment on the grounds that the judgment in question is void
ab
origine
must (in terms of rule 49(3)) set out a defence ‘with
sufficient particularity’ so as to enable the court to decide
whether or
not there is a valid and bona fide defence.
[8] In the circumstances the appeal is
dismissed with such costs as the respondent might have incurred.
_____________________
R H ZULMAN
JUDGE OF APPEAL
CONCUR: ) VAN HEERDEN JA
) CACHALIA AJA
1
[1997] 1 All SA 420
(E).
2
2003 (3) SA 262
(W).
3
Supra at 429 c-g.
4
Supra.
5
1999 (4) SA 779
(W).
6
See HJ Erasmus and DE van Loggerenberg
Jones
& Buckle: The Civil Practice of the Magistrates’ Courts in
South Africa
9ed (1977, with loose-leaf updates) Volume II: The
Rules p 49-8.
7
Where the alleged ground for rescission of a
default
judgment is
not
one of the grounds specified
in rule 49(8), then the application for rescission must be served
and filed ‘within 20 days after
obtaining knowledge of the
judgment’ (rule 49(1)).
8
Op cit p 49-12.