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
>>
2014
>>
[2014] ZAGPPHC 469
|
|
Indigold Cellular CC and Others v Forum 1 & 2 Panorama Offices Estate (Pty) Ltd (72355/2009) [2014] ZAGPPHC 469 (13 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 72355/2009
DATE:
13 JUNE 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
INDIgOLD CELLULAR
CC
.............................................................................................
1ST
APPLICANT
TARYN
CHANTAL
PILLAY
............................................................................................
2ND
APPUCANT
JOSHIE
PILLAY
.................................................................................................................
1ST
APPLICANT
VlSPANATHAN
KRISHNA
PILLAY
..............................................................................
4TH
APPLICANT
VINOSHINI
PILLAY
.........................................................................................................
5TH
APPLICANT
and
FORUM 1 & 2
PANORAMA OFFICES ESTATE (PTY)
LTD
..........................................
RESPONDENT
JUDGMENT
KUBUSHI,J
[1] The 2
nd
to 5
th
applicants are applying for the rescission of
judgment granted against them on 15 October 2013. At the time when
the order was
granted 2
nd
to 5
th
applicants
were under provisional sequestration and the 1
st
applicant
was under provisional liquidation.
[2] The facts of the
matter are that the 1st applicant entered into a written lease
agreement with the respondent in 2009. It is
alleged that the 1
st
applicant breached the agreement by failing to pay rental and
vacating the leased premises. The respondent sued the 1
st
applicant together with the 2
nd
to 5
th
applicants for payment of rental and damages. The 2
nd
to
5
th
applicants are members of the 1
st
applicant and were sued in their respective capacities as sureties.
Judgment was granted against the 1
st
applicant and its
counter claim dismissed on 19 October 2012. There is no pending
appeal against that order nor has the 1
st
applicant
applied for the rescission of that judgment. Therefore the 1
st
applicant has been erroneously cited in these proceedings - no relief
is sought on its behalf.
[3] In terms of
uniform rule 31 (2) (b), a court may upon good cause shown set aside
a judgment granted in default.
[4] The requirements
for an application for rescission of judgment under this sub-rule are
that:
4.1 the applicant
must give a reasonable explanation of his or her default. The default
must not be wilful or due to his or her
gross negligence;
4.2
the application must be
bona
fide
and
not be made with intention to delay the plaintiff's claim; and
4.3
the applicant must show that he or she has a
bona
fide
defence
to the plaintiffs claim.
See
Erasmus:
Superior
Court Practice
1
and
Colyn v Tiger
Food industries Ltd
t/a
Meadow Feed Mills (Cape)
2
.
REASONABLE
EXPLANANTION
[5] The applicants’
explanation is that they were under the impression that the
liquidator would appear on their behalf at
as the court had appointed
him to act as their liquidator. They were also of the view that all
litigation against them was suspended,
like with the first applicant.
[6] The respondent's
submission is that the explanation is not reasonable given the fact
that on the day set for hearing Advocate
Coetzee appeared on behalf
of the 2
nd
to 5
th
applicants and informed the
presiding judge that she was requested by Mr Desai, the applicants'
previous attorney, to inform the
court that 2
nd
to 5
th
applicants were provisionally sequestrated. His contention is that
since the sequestration application was later withdrawn there
was no
valid sequestration order at the time of the trial.
[7]
I do not agree with the contention by the respondent’s counsel.
The judgment of
Fischer
v Wessels & Co (Pty) Ltd
3
to which he referred me to was correctly decided but does not in my
view find application in this Instance. Factually, at the time
of the
trial there was a sequestration order against the 2
nd
to 5
th
applicants which was subsequently withdrawn. Since the applicants
were not in court and were not legally represented in court it
cannot
be said that the judgment granted against them was not in default. Is
their explanation reasonable? I think so. In my view,
it could not be
expected of the applicants to understand the intricacies of the
sequestration and liquidation procedures.
BONA
FIDE
DEFENCE
[8]
In order to establish a
bona
fide
defence,
it is sufficient if the applicant makes out a
prima
facie
defence
by setting out averments which, if established at trial, would
entitle him or her to the relief asked for. He or she need
not deal
fully with the merits of the case or produce evidence that the
probabilities are actually in his or her favour. See
Sanderson
Technitool (Pty) Ltd v Intermenua (Pty) Ltd
4
.
[9] The argument
submitted by the 2
nd
to 5
th
applicants' counsel
is that the defence of the applicants revolves around the agreement
The applicants have been sued for arrear
rental and damages emanating
from the lease agreement The contention however is that prior to the
conclusion of the agreement the
parties entered into an oral
agreement which was not incorporated into the written agreement and
as such the present agreement
does not incorporate the true intention
of the parties. The applicants now seek to rectify the agreement. The
terms of the oral
agreement which were not incorporated Into the
written agreement are that: if the 1
st
applicant’s
service provider cancels the service agreement the applicants will be
released from the lease agreement; and
they will be paid for any
Improvements effected to the leased premises. The applicants assert
that should the agreement be rectified
the respondent wilt be liable
for the payment of the amount claimed in the counterclaim.
[10]
The applicants conceded that judgment has been granted against the
1
st
applicant who is the principal debtor, but submit that that does not
take away their rights as sureties. Their counsel referred
me to a
judgment in
Muller
and Others v Botswana
Development
Corporation Ltd
5
.
It was held in that judgment that the general rule relating to
sureties is that a surety may rely on any defence which is open
to
the principal debtor, provided such defence arises upon the
obligation (one
in
rerri)
and
not from some personal privilege granted to the debtor (a defence
in
personam).
[11] The
respondent’s counsel conceded in argument that the applicants
as sureties are entitled to use a defence which the
principal debtor
(1
st
applicant) may have used. He submitted however, that
in the circumstances of this instance, firstly, the applicants cannot
avail
themselves of the 1
st
applicant’s defence
because judgment has been granted against the 1
st
applicant and its counter claim dismissed; secondly, rectification
cannot constitute an answer to the applicants’ challenge
because the alleged oral agreement Is contrary to clause 8 of the
written agreement
[12]
The test for whether a
bona
fide
defence
has been made out for purposes of rescission applications is as set
out in the
Sanderson
-
judgment above. The applicants should only make averments which, if
established at trial, would entitle them to the relief asked
for. I
am thus satisfied that the averments made out by the applicants if
established at trial, will entitle them to the relief
asked for. They
have, in my view, set out a
bona
fide
defence.
BONA
FIDE
APPLICATION
[13]
I am also of the view that the applicants' application is
bona
fide.
The
respondent is opposing this application on the basis of the previous
conduct of the applicants in conducting this case. However
on the
basis of the strength of the applicants’ defence I am inclined
to exercise my discretion in their favour and grant
them leave to
proceed to trial.
COSTS
[14] The applicants
in their notice of motion prayed for a cost order against the
respondent in the event of opposition. However
in argument their
counsel was prepared to leave the issue of costs in my discretion.
Although the matter proceeded on an opposed
basis I am however of the
view that the respondent should not be mulcted with a cost order. In
my opinion a just cost order in
the circumstances of this case is for
each party to pay own costs.
[15] Consequently, I
make the following order:
15.1 Judgment
granted against the 2
nd
to the 5
th
applicants
under the above case number on 15 October 2013 is rescinded.
15.2 Each party to
pay own costs.
E.M.KUBUSHI
JUDGE OF THE HIGH
COURT
Apptawnm
HEARD ON THE: 13
MAY 2014
DATE
OF JUDGMENT: 13 JUNE 2014
APPLICANTS'
COUNSEL: ADV H M BARNAARD
APPLICANTS'
ATTORNEY: DES NAIDOO ATTORNEYS
RESPONDENT’S
COUNSEL: ADV H R MARC
RESPONDENT'S
ATTORNEY: BLACKIE SWART A COETZEE ATTORNEYS
1
At
B1-201
2
2003
(6) SA 1
(SCA) at 9E-F
3
1943
TPD 71
at 74
4
1980
(4) SA 573
(W) at 575H
5
2003
(1) SA 651
(SCA) para [6] at 654 B- G