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[2013] ZAKZDHC 18
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Aaliqah Logistics (Pty) Ltd v Thekwini Marine Steel CC (3995/2011) [2013] ZAKZDHC 18 (16 May 2013)
In the KwaZulu-Natal High
Court, Durban
Republic of South Africa
Case no.:
3995/2011
In the matter between:
Aaliqah Logistics (Pty)
Ltd
......................................................................................
Applicant
and
Thekwini Marine Steel
CC
..................................................................................
Respondent
JUDGMENT
Lopes J
[1] The applicant seeks
to set aside a default judgment granted against it at the instance of
the respondent on the 13
th
of April, 2012. The applicant
also seeks confirmation of a rule
nisi
granted on the 20
th
of February, 2013 staying the transfer of certain movable property
which was sold to certain parties pursuant to the default judgment
referred to above.
[2] The two applications
are being heard simultaneously, and Ms
Smart
, who appeared for
the applicant, agreed that the interdict application would be
determined by the outcome of the rescission application.
I
accordingly deal firstly with the rescission application. The parties
are
ad idem
that the applicant, in order to succeed, is
required to demonstrate the following,-
that the applicant has
shown good cause;
that the applicant has
shown a defence to the main claim;
that the defence is
bona
fide
and the application is made
bona fide
and not with
the intention to delay the respondents claim. (See
Grant v
Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476 – 477).
Ms
Smart
submitted
that this was an application in terms of the common law. Given the
time period which has elapsed, the provisions of Rule
31 cannot
apply, and given the circumstances alleged by the applicant, Rule 42
is not applicable.
[3] With regard to relief
under the common law, Trengove AJAset out the following in
De
Wet and others v Western Bank Ltd
1979 (2) SA
1031
(A) at 1042 F – 1043 A :
‘
Thus, under
the common law, the Courts of Holland were, generally speaking,
empowered to rescind judgments obtained on default of
appearance, on
sufficient case shown. This power was entrusted to the discretion of
the Courts. Although no rigid limits were set
as to the circumstances
which constituted sufficient cause (cf examples quoted by
Kersteman
(op cit
sv
defaillant)
the Courts nevertheless laid down certain general principles, for
themselves, to guide them in the exercise of their
discretion.
Broadly speaking, the exercise of the Court's discretionary power
appears to have been influenced by considerations
of justice and
fairness, having regard to all the facts and circumstances of the
particular case. The
onus
of showing the existence of sufficient cause for relief was on the
applicant in each case, and he had to satisfy the Court,
inter
alia
,
that there was some reasonably satisfactory explanation why the
judgment was allowed to go by default. It follows from what I
have
said that the Court's discretion under the common law extended
beyond, and was not limited to, the grounds provided for in
Rules 31
and 42 (1), and those specifically mentioned in the
Childerley
case. Those grounds do not, for example, cover the case of a
litigant, or his legal representative whose default is due to
unforeseen
circumstances beyond his control, such as sudden illness,
or some other misadventure; one can envisage many situations in which
both logic and common sense would dictate that a defaulting party
should, as a matter of justice and fairness, be afforded relief.’
[4] I should mention that
Childerley
’
s
case dealt with a situation where the applicant sought to set aside a
final judgment on the grounds that the applicant had subsequently
discovered that the judgment had been obtained as a result of fraud
and false statements made by a witness during the course of
the
trial.
[5] In the present case
the default judgment came to the knowledge of Mr Pillay, the sole
shareholder of the applicant on the 4
th
of June 2012, and on the 6
th
of June 2012 an application was brought to stay the
execution of the judgment pending the outcome of an application for
rescission.
This application was subsequently launched some three
months later on the 5
th
of
September 2012.
[6] Ms
Smart
submitted that I should grant the rescission application because the
amount for which judgment was granted does not coincide with
the
total of the invoices submitted by the respondent to the applicant.
She submitted that in those circumstances the judgment
was simply
wrong, and that this was not disputed. The amount to which the
respondent is entitled, is, according to Ms
Smart
, something
which would have to be decided at the trial.
[7] With regard to the
bona fides
of the applicant’s defence and the bringing
of this application, I draw attention to the following:-
the defence that the
applicant was entitled to rescission merely because the amount for
which judgment was taken differed from
the total of the invoices
sent to the applicant by the respondent is not raised in the
application papers;
Mr Pillay avers that
judgment was granted against the applicant pursuant to three
dishonoured cheques. He alleges that those cheques
were signed under
the threat of harm to his family by the respondent’s
representative. At the time that he made out the
three post-dated
cheques in favour of the respondent, he also signed an affidavit
agreeing to the amount that the respondent
was claiming;
the cheques, which were
dated the 9
th
of
November 2010, the 16
th
of
November 2010 and the 5
th
of
December 2010 were all dishonoured on presentation and were returned
marked ‘refer to drawer’.
[8] In the affidavit
deposed to by the applicant he refers to the amounts of the three
post-dated cheques. Those amounts equate
to the judgment which was
granted against the applicant. It is also common cause that in
December of 2010 the respondent laid criminal
charges of fraud
against Mr Pillay relating to the dishonour of the cheques. Those
charges are no longer relevant.
[9] Nothing however, was
done regarding the threats of violence allegedly made by the
applicant’srepresentative. No charges
appear to have been laid
in that regard, and no application was brought by the applicant’s
representative’s to ensure
that judgment could not be taken on
cheques which were obtained in such a manner. The allegations of
duress have, in the circumstances,
all the hallmarks of recent
fabrication and reflect poorly on the
bona
fides
of the applicant in raising this as a
defence and relying on it as ground for rescission of the judgment.
[10] It is not necessary
for me to set out the various versions of why the debts were not
paid. Suffice it to say, in my view the
application for rescission
was not brought in a
bona fide
manner, and I do not believe
the defence to the respondent’s claim to be
bona fide
.
In all the circumstances the rescission application and the interdict
application cannot succeed.
[11] With regard to
costs, Ms
Smart
drew to my attention that on the previous
occasion the matter had been set down at the instance of the
respondent but there had
been no appearance on its behalf. The matter
accordingly had to be adjourned. Ms
Smart
submits that the
respondent should therefore be responsible for paying the costs of
the last hearing, whatever the result of this
application.
[12] Mr
Nicholson
,
who appeared for the respondent, submitted that the costs of the last
hearing should follow the result. In the exercise of my
discretion,
the respondent having set the matter down for hearing, was
responsible for the adjournment of the matter and accordingly
should
bear the costs.
[13] I make the following
order:-
The application for
rescission is dismissed with costs;
The interdict
application is dismissed with costs;
The costs of the
applications referred to above insofar as they relate to the
previous wasted costs of the hearing set down for
the 24
th
day
of April, 2013, are to be paid by the respondent.
Date of hearing : 13
th
May 2013
Date of judgment : 16
th
May 2013
Counsel for the Applicant
: Ms C Smart (instructed by Sanjay Lorick& Partners)
Counsel for the
Respondent : Mr W Nicholson (instructed by Larry Singh &
Associates)