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[2014] ZAFSHC 27
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Standard Bank of South Africa Ltd t/a Standard Bank Vehicle and Asset Finance v Du Randt (5432/2011) [2014] ZAFSHC 27 (6 March 2014)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: 5432/2011
In the matter between:
THE STANDARD BANK OF SOUTH
AFRICA LTD
....................................................
Plaintiff
t/a STANDARD BANK VEHICLE
AND ASSET FINANCE
and
DAVID
DU RANDT
…...................................................................................................
Defendant
HEARD ON:
11
FEBRUARY 2014
JUDGMENT BY:
MOTLOUNG, AJ
DELIVERED ON:
6 MARCH 2014
[1] This is an
application for default judgment by the plaintiff against the
defendant. The defendant’s attorney claims
full
compliance with Rule 16(4) of the Uniform Rules of Court.
[2] The plaintiff is the
Standard Bank of South Africa t/a Standard Vehicle & Asset
Finance with registered address at 6 Simmonds
Street, Johannesburg
and the defendant is David du Randt, a major male whose chosen
domicilium citandi et executandi
is
Plot 59C, Du Randt Avenue, Eden Staffords Hills, Bethlehem, Free
State.
[3] The plaintiff issued
summons against the defendant on 13 December 2011 for breach of
contract, alternatively cancellation thereof
and payment of the full
outstanding amount of R678 418.21 together with interest.
The plaintiff prayed for the costs
of suit.
[4] Counsel for plaintiff
argued that the defendant filed a notice to defend on 9 July 2012.
An application for summary judgment
was made on 12 July 2012, which
application was dismissed. The defendant filed his plea on 18
January 2013. The matter
was duly set down on 27 January 2013
for trial on 11, 12 and 14 February 2014. In defence of his
case defendant was represented
by W.J. Botha of Botha Hefer Attorneys
Inc., 60B Kellner Street, Bloemfontein.
[5] On 27 January 2014 a
pre-trial conference was held by the parties and the defendant was
represented by his attorney. No
issues were raised about lack
of instructions.
[6] On 3 February 2014
the defendant’s attorney of record caused to be sent a letter
to plaintiff wherein he indicates that
they may withdraw as attorneys
of record on the basis of lack of further instructions and funds.
[7] On 5 February 2014 a
notice of withdrawal was served on all the parties that the
defendant’s representative will no longer
act for defendant.
A copy of the registered mail to the defendant at his postal address
was also attached and it was also
evenly dated.
[8] At issue is whether
upon compliance by the defendant’s attorney with Rule 16(4) of
the Uniform Rules of Court the plaintiff
can enforce this Rule. The
Rule provides that:
“
16(4)
(a)
Where an
attorney acting in any proceedings for a party ceases so to act, he
shall forthwith deliver notice thereof to such party,
the registrar
and all the parties: Provided that notice to the party for whom he
acted may be given by registered post.
(b)
After such
notice, unless the party formerly represented within 10 days after
the notice, himself notifies all other parties of
a new address for
service as contemplated in subrule (2), it shall not be necessary to
serve any documents upon such party unless
the court otherwise
orders: Provided that any of the other parties may before receipt of
the notice of his new address for service
of documents, serve any
documents upon the party who was formerly represented.”
[9] The plaintiff’s
counsel submits that there has been compliance with the Rule above
and as such they are entitled to a
default judgment in the matter.
[10] In making this
judgment I am mindful of the decision in
Sentraal
Westelike Ko-operatiewe Maatskappy Bpk v Prinsloo
1972 (2) SA 86
(O), where Erasmus J granted default judgment and
accepted that the Rule was not fully complied with but for all
practical purposes,
the defendant had not be prejudiced by the
procedure which had been followed.
[11] There are two
problem issues I have in respect of compliance with the Rule.
Firstly, the defendant has 10 days in which
to notify the plaintiff
about change of address. From the papers it is evident that the
matter was set-down with the knowledge
of the defendant and this is
not in dispute. However, the notice of withdrawal, which I must
admit complies with the Rules,
was only made on 5 February 2014.
Given that the date of hearing was to start on 11 February 2014, this
leaves less than
5 days and such short notice would be prejudicial to
the defendant.
[12] Secondly, it seems
that the plaintiff cannot act in terms of this subrule unless he can
show that the registered mail was received
by the defendant
timeously. This would suggest that the plaintiff acts
prematurely where it has not been established that
the withdrawal was
received by the defendant and he chose not to react on it.
[13] This brings us to
the issue where the plaintiff is entitled in terms of this Rule to
approach the court to order that service
be effected in a manner
directed by the court. This Rule generally relates to matters
of status where personal service is
important. Nonetheless it
is important for the plaintiff to comply with the
dies
in the Rule to remove any doubt as to whether the defendant as a
matter of fact does not wish to appoint another legal representative.
[14] In the
circumstances, I cannot grant default judgment in this matter on the
basis of non-compliance with Rule 16(4)(b) of the
Uniform Rules of
Court.
[15] At this stage the
following orders only will issue:
1. The application for
default judgment is dismissed.
2. The plaintiff
may set the matter down on the unopposed roll, without any
notification to the defendant, should defendant not
have notified
plaintiff of the appointment of his new legal representative.
3. The wasted
costs of this application for default judgment shall be paid by the
defendant.
__________________
S.E.
MOTLOUNG, AJ
On behalf of plaintiff: Adv L.W. de Beer
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On behalf of defendant: No appearance on behalf of defendant
/spieterse