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[2013] ZAKZDHC 10
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Padayachee v Naidu and Others (613/2011) [2013] ZAKZDHC 10 (22 March 2013)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 613/2011
In
the matter between:
RUBIAMMA
PADAYACHEE
..................................................................
APPLICANT
and
LUTCHMIAH
NAIDU
..................................................................
1
ST
RESPONDENT
VICTOR
GOUNDEN & ASSOCIATES
......................................
2
ND
RESPONDENT
THE
SHERIFF OF THE HIGH COURT, DURBAN
....................
3
RD
RESPONDENT
THE
REGISTRAR OF DEEDS, KWAZULU-NATAL
..................
4
TH
RESPONDENT
__________________________________________________________________
J
U D G M E N T
(delivered
on: 22 March 2013)
__________________________________________________________________
BALTON
J
:
[1]
This is an application for a rescission of a default judgment granted
on a provisional sentence summons on 19 April 2011.
[2]
The first respondent instituted provisional sentence proceedings
against the applicant as the fourth defendant, eThekwini Guniting
Services as the first defendant, Raniamma Govender as the second
defendant and Pregasen Govender as the third defendant. The summons
was served on the applicant and the first to third defendants on 25
January 2011 at the
domiciliumcitandietexeculandi
.
[3]
A notice of opposition was filed by attorneys Gosai and Company on 15
February 2011 indicating that the “respondents”
oppose
the application. Settlement negotiations ensued.
[4]
The matter was then set down for hearing on the unopposed roll on 19
April 2011 on which date the relief sought in the provisional
sentence summons was granted. The applicant and the first to third
respondents were ordered:
(a)
To pay the first respondent the amount of R500 000,00, jointly
and severally, the one paying the other to be absolved;
(b)
Interest at the rate of 15.5% per annum from the date of judgment to
date of final payment;
(c)
Costs of suit.
[5]
The present application was launched on 7 March 2012. The applicant,
a pensioner, alleged that she only became aware of the
action when
she visited her family at the
domicilium
on 14 February 2012
and was advised by one Mr K Padayachee that the sheriff had served a
Notice of Attachment of the immovable
property and that the applicant
was cited as one of the defendants in the action. The applicant was
surprised and shocked and upon
questioning her son-in-law, the third
defendant, he said that he will attend to the matter.
[6]
The applicant states in her founding affidavit that on 10 November
2009 the third defendant requested her to accompany him and
the
second defendant to the second respondent’s offices to leave
her title deeds to her immovable property situated at 20
Crownvale
Place, Rydalvale, Phoenix, with the second respondent for
safekeeping. She waited in the reception area while the second
and
third defendants consulted with the second respondent. She was then
called into the second respondent’s office and requested
to
sign a two page document which was not explained to her and to hand
over her title deeds. She did not suspect anything untoward.
At no
stage was she advised that the title deeds were handed over as
security for a loan.
[7]
At the hearing of the matter Mr Chetty, who appeared on behalf of the
applicant, submitted that the provisional sentence summons
was
defective in that it had not been signed by an attorney and that the
Court had erroneously granted the provisional sentence.
[8]
Further points were raised in the application papers and heads of
argument, but having regard to what will be said hereunder,
I do not
deem it necessary to deal with all the points raised by the applicant
in the application papers.
[9]
Rule 8(2) of the Uniform Rules of Court provides for the procedure
concerning a summons.
(2) Such summons shall be issued by
the Registrar and the provisions of sub-rules (3) and (4) of rule 17
shall
mutatis mutandis
apply.
Rule
17(3) reads as follows:
(3) Every summons shall be signed by
the attorney acting for the plaintiff and shall bear an attorney’s
address, within eight
kilometres of the office of the registrar, or,
if no attorney is acting, it shall be signed by the plaintiff, who
shall in addition
append an address within eight kilometres of the
office of the registrar at which he will accept service of all
subsequent documents
in the suit; and shall thereafter be signed and
issued by the registrar and made returnable by the sheriff to the
court through
the Registrar.
[10]
It is clear that the provisional sentence summons does not comply
with the Rules. The question arises whether this irregularity
can be
condoned in terms of Rule 27(3) which reads as follows:
The Court may, on good cause shown,
condone any non-compliance with these rules.
[11]
In
NORTHERN
ASSURANCE CO LTD v SOMDAKA
1
the
Appellate Division considered the Court’s discretion concerning
the effect of Rule 54 of the Natal Rules which is similar
to Rule
27(3) and held that -
Once it is seen that the Court has a
discretion, it seems to me to follow inescapably that it was not
intended that a breach of
the Rules relating to actions should
necessarily be visited with nullity.
[12]
In
SMALL
BUSINESS DEVELOPMENT CORPORATION LTD v KHUBEKA
2
it
was held that:
The use of the word shall in Rule
17(3), seems to indicate that it is intended that compliance with the
Rule is imperative. Notwithstanding
the language used the Court is
empowered to condone any non-compliance with the Rules. I refer to
Rule 27(3).
[13]
It is not in dispute that the provisional sentence summons was only
signed by the Registrar. The plaintiff’s attorney,
alternatively the plaintiff,failed to sign the summons. However, the
matter does not end there. There is non-compliance with Rule
17(3) in
that no address within eight kilometres of the court is given.
[14]
In
NATIONAL
PRIDE TRADING 452 (PTY) LTD v MEDIA 24 LTD
3
:
[27] It is often been held that, where
the rules prescribe a particular procedure, and that procedure is not
followed, then such
procedural error renders the judgment sought and
granted “erroneous” within the meaning of rule 42(1)(a).
What is effectively
being rescinded is the procedure in terms of
which the judgment was granted, and therefore, by necessary
implication, also the
judgment. See
Fraind v Nothmann
1991 (3)
SA 837
(W);
Bakoven Ltd v G J Howes (Pty) Ltd
1992 (2) SA 466
(E);
Stander and Another v Absa Bank
1997 (4) SA 873
(E); and
Lodhi 2 Properties Investments CC and Another v Bondev
Developments (Pty) Ltd
2007 (6) SA 87
(SCA).
[15]
It is clear to this Court that the provisional sentence summons did
not comply with Rules 8 and 17(3) and there is no basis
upon which
this Court can condone the non-compliance in terms of Rule 27(3). The
provisional sentence summons is defective and
the judgment ought not
to have been granted on the summons in the form in which it was
presented.
[16]
On that basis this Court has the discretion in terms of Rule 42(1)(i)
to rescind the order granted and set aside the judgment
granted on 19
April 2011. While this application has been brought by the applicant,
the fourth defendant, I am of the view that
in exercising my
discretion, that the judgment against the first to third defendants
should also be set aside for the reasons set
out above.
[17]
The applicant has not sought costs in paragraph 10 of the Notice of
Motion and accordingly no order as to costs should be made
in the
circumstances.
[18]
The following order is made:
(a)
The judgment granted on 19 April 2011 against the defendants is
hereby rescinded and set aside.
(b)
A copy of this order is to be served on the first to third
defendants.
(c)
There is no order as to costs.
COUNSEL
FOR THE APPLICANT: MR CHETTY
(Instructed
by:
N
Moola Attorneys
10
th
Floor Salmon Grove Building
407
Anton Lembede Street
Suite
1003 Salmon Grove Chambers
DURBAN
4001.)
COUNSEL
FOR THE 1
ST
AND 2
ND
RESPONDENTS:
MS R SINGH
(Instructed
by:
Victor
Gounden& Associates
c/o
Messenger King
Suite
360, 3
rd
Floor
Mansion
House
12
Field Street
DURBAN.)
DATE
OF ARGUMENT: 13 FEBRUARY 2013
DATE
JUDGMENT HANDED DOWN: 22 MARCH 2013
1
1960
(1) SA 588
(A) at 595A.
2
1990
(2) SA 851
at 853H.
3
2010
(6) SA 587
(EC) at 593.