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 377
|
|
Neethling v MBD Securitisation (A809/2012, 10843/1996) [2014] ZAGPPHC 377 (17 June 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NUMBER: A809/2012
COURT
A QUO CASE NUMBER: 10843/1996
DATE:
17/6/2014
In the matter between:
CHRISTIAAN TROSKIE
NEETHLING
Appellant
(Respondent
a quo
)
And
MBD SECURITISATION
Respondent
(Applicant
a quo
)
CORAM:
MASIPA T.M, J
BAM A.J, J
STRAUSS
S, AJ
HEARD
ON: 11 JUNE 2014
DELIVERED:
13 JUNE 2014
JUDGMENT
STRAUSS AJ
1.
This is an appeal against a judgment of the
North Gauteng High Court, Pretoria dated 4 May 2012, in which the
Learned Judge granted
an application by the respondent for
substitution of Absa Bank with the respondent as judgment creditor,
and thereafter confirming
the judgment in favour of the respondent,
for default judgment granted on 27 September 1996 by the Registrar,
leave to appeal was
refused by the trial court but subsequently
granted by the SCA.
2.
Default judgment was granted by the
registrar of this Court on 27 September 1996 in favour of Absa Bank,
against the appellant.
3.
Absa Bank, inter alia, sold the appellant’s
account to Asset Solution Company Trading (Pty) Ltd (“ACS”)
in terms
of an account of sale agreement and thereafter ACS ceded its
rights and, inter alia, the appellant’s account to the
respondent
in terms of a written deed of cession.
4.
The respondent then instituted on
application relief for an order substituting Absa Bank with the
respondent as judgment creditor
in relation to the default judgment
and an order as envisaged in Rule 66(1) for the revival of the
judgment as no warrant of execution
could be located by the
respondent.
5.
The appellant opposed the relief so sought
by filing an opposing affidavit and a counter-application for
rescission of the default
judgment.
6.
The respondent filed a replying affidavit
and also addressed
de novo
issues raised by the latter counter-application.
7.
At the hearing of the matter the appellant
produced the writ of execution together with a notice of attachment
served in October
1996, thereby negating the necessity of the
respondent to seek revival of the judgment and the relief sought in
terms thereof was
abandoned.
8.
The hearing subsequently proceeded only
upon the question of whether the application for substitution of the
judgment creditor should
be granted, and in doing so the Court
a
quo
considered the counter-application
of the appellant and therefore also considered the facts that lead to
the default judgment.
9.
The Court
a
quo
in considering the facts of the
application and counter application, found that there was proper
service upon the appellant of
the summons. The cause of action in the
summons, under case number 10843/96, was based on a deed of surety
signed by the appellant.
The appellant is cited in the summons
as one CT Neethling, a major man with chosen
domicilium
citandi et executandi
at Parkel
Woonstel, 2007 Boeing Street, Elardus Park, Pretoria.
10.
The appellant throughout and in his
application for rescission contended that there was a dispute of fact
as he denied that the
summons had been served on him by the Sheriff.
It was common cause that no proof by way of a sheriff’s return,
could be provided.
The appellant therefore contended that the default
judgment granted in 1996, is void
ab
origine
and that it was unnecessary to
bring a rescission application, should this be found.
11.
The Court
a
quo
found in its judgment that the
allegation of the appellant not having received the summons did not
necessarily give rise to a real
dispute of fact regarding the actual
service, as the respondent had approached the Court at the outset
stating that the return
of service of the original summons in respect
of the appellant, being one of the defendants in the initial action,
could not be
traced.
12.
The Court
a
quo
on the issue of non-service
assessed the probabilities of service having taken place, and
referred to the notes of the Registrar
when granting and considering
default judgment, indicating an amount of R197.40 in respect of
Sheriff’s costs which had been
calculated by way of a written
inscription on the return of service on the first defendant, and that
this hand-written note indeed
referred to the service on the first
defendant , as the amount of R55.12 supposedly referred to a return
of service on the appellant.
13.
The return of service the Court
a
quo
referred to was in respect of the
first defendant, was dated 31 May 1996, and reflected another address
being […..] Pretoria
East. The Court continued to mention
service on each of the other respective defendants that took place at
their
domicilium citandi et executandi
addresses, which addresses were
different from that of the appellant’s as previously mentioned,
but was effected by the same
sheriffs’ office.
14.
The return of service in respect of the
service on the appellant could not be located on the Court file or at
the offices of the
then plaintiff or at the offices of the Sheriff,
such records having been destroyed as a result of the lapse of time.
15.
The Court
a
quo
found that when the Registrar
granted the default judgment it did so firstly against all the said
three defaulting defendants and,
secondly, by also totalling the
Sheriff’s fees for service of the summons on the said three
defendants.
16.
The Court
a
quo
also found that the query list of
the Registrar indicating deficiencies in the application for default
judgment, merely requested
copies of a draft order of the order
sought, and the relevant block querying “service” had not
been ticked by the registrar.
17.
The Court
a
quo
found that in all probability and
based on the above notes of the Registrar the summons had been served
and a return had been placed
before the Registrar who had then
correctly granted the default judgment.
18.
The court
a
quo
did not consider whether service
was affected on the appellant with regard to the letters written by
the appellant to the attorneys
of the respondent at the time,
subsequent to the default judgment, as these letters were never
referred to by the court
a quo.
The
content of the letters written by the appellant did not contain any
admission that the summons was served on him
,
but referred to previous correspondence between the appellant and the
attorneys.
19.
It was however argued by counsel for the
respondent that this court should have regards to these letters as a
indication that service
of the summons was effected on the
appellant, due to the appellant offering to pay the legal cost of the
then respondent. There
was no substance in this argument.
20.
When having regard to the citation of the
addresses of the defendants in the initial summons the Court
a
quo
failed to have regard to the fact
that the Sheriff who would attend to the service of the summons on
the other defendant
s vis a vis
the appellant would be a different Sheriff, being the Sheriff’s
office Centurion, as all the other addresses, with the exception
of
the appellant, were in [….], Pretoria. The appellant’s
address, as previously stated, was in Elardus Park, which
does not
fall under part of the jurisdiction of the Sheriff, Pretoria East.
21.
The Court
a
quo
therefore did not consider whether
a different Sheriff had been used to effect service on the appellant
and it was not placed before
the Court
a
quo
.
22.
Further, the Court
a
quo
erred, in my view, to find that due
to the existence of the other returns of service, the probability
existed that service was
effected on the appellant. There was no
basis for this finding.
23.
As to the law on service of summons,
Rule 4(1)(a)(ii) in the Uniform Rules of Court provides as follows:
service of any process of the Court
directed to the Sheriff and, subject to the provisions of paragraph
(a), any document initiating
application proceedings shall be
effected by the Sheriff in one or other of the following manners:
By leaving a copy
thereof at the place of residence or business of the said person…
Rule 4(d) states
that:
It shall be the duty
of the Sheriff or other person serving the process or documents to
explain the nature and contents thereof
to the persons upon whom
service is being effected and to state in his return or affidavit or
on the signed receipt that he has
done so.
Rule
4(6) states that:
Service shall be
proved in one of the following manners:
(a)
Where service has been effected by
the Sheriff by the return of service of such Sheriff.
Rule 4(10) states
that:
Whenever the Court is
not satisfied as to the effectiveness of the service, it may order
such further steps to be taken as to it
seems meet.
24.
As set out in
Robertson
v Swan & Kelly 1905 15 CTR 16
judgment will only be given against
those served. The only proof of service therefore in terms of the
Rules is the Sheriff’s
return. A positive return of service is
therefore
prima facie
evidence of service on a defendant.
25.
In terms of Rule 4(6) there is also a duty
on the Court to inspect the return. If the Court finds that
service does not comply
with the requirements the Court should not
grant any relief prayed for in default, before a proper return has
been obtained. This
is set out in
Ritchie
v Andrews
1882 (2) EDC 25C
.
26.
It remains a cornerstone of our legal
system that a person is entitled to notice of any proceedings brought
against him, and in
the event that the defendant has not been
notified the subsequent proceedings are void and any Court order
granted in terms thereof
is without any force or effect and can be
ignored without the necessity of a formal application to set it
aside.
27.
It is therefore trite law that if a summons
was not served on a defendant, in this case the appellant, a
subsequent judgment taken
by default is invalid and unenforceable.
The evidence relied upon by the respondent and the Court
a
quo
was insufficient and amounted to
nothing more than speculation.
28.
This Court finds that the facts considered
by the Court
a quo
were nothing more than possibilities which could not equate to
prima
facie
proof of service.
29.
The Court
a
quo
was not entitled in the
circumstances to make deductions on the probabilities of service on
the appellant.
30.
In my view the Court
a
quo
misdirected itself in finding on
the probabilities that the summons was served on the appellant.
31.
The post litigation communication by the
appellant cannot be regarded as proof of service of the summons, as
it would be speculation
and conjecture especially due to the fact
that the communication refers to previous correspondence between the
appellant and the
respondent attorneys, and the letters written to
the appellant to which he replied were also not found, and did not
form part of
the record.
32.
Once this Court has found in favour of the
appellant, on this issue, the question in regard to the session of
the claim, debt or
such to the Respondent, becomes academic and
unnecessary for this Court to deal with. Due to the fact that the
respondent could
not cross the first hurdle to prove that summons had
indeed been served on the appellant. Therefore in my opinion the
default judgment
granted was not a valid judgment in law.
I therefore propose that
the following order is made:
1.
The appeal is upheld with costs.
2.
The order of the Court a quo is set aside
and substituted with the following order:
3.
The applicant’s application to
confirm the default judgment of 27 September 1996 is dismissed with
costs.
_____________________________
MASIPA,
T M
JUDGE
OF THE HIGH COURT,
I
Agree:
PRETORIA
____________________________
BAM,
A J
JUDGE
OF THE HIGH COURT,
I
Agree: PRETORIA
_______________________________
STRAUSS,
S
ACTING
JUDGE OF THE HIGH
COURT,
PRETORIA