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[2013] ZAKZDHC 40
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Samuels and Others v MacMillan (697/2010) [2013] ZAKZDHC 40 (26 August 2013)
In the KwaZulu-Natal High
Court, Durban
Republic of South Africa
Case No : 697/2010
In
the matter between :
Disarie
Gladys Samuels
.............................................................................
First
Applicant
Harry
John Richard Fouche
..................................................................
Second
Applicant
Cederick
Shelton Samuels
........................................................................
Third
Applicant
and
William
Lawson MacMillan
.............................................................................
Respondent
___________________________________________________________________
Judgment
___________________________________________________________________
Lopes J
[1] The applicants in
this matter seek an order rescinding the judgment granted by Vahed J
on the 3
rd
December 2012 under the above case number.
[2] The history of the
matter may be summarised as follows :
(a) on the 21
st
January 2010 the respondent caused a summons to be issued against the
applicants claiming payment of the sum of R1 000 000
together with interest thereon and costs on the scale as between
attorney and client;
(b) the respondent’s
cause of action was based on a written agreement of sale in terms of
which the respondent sold his shares
in a proprietary limited company
to the first applicant;
(c) in due course, and
during March of 2010 the applicants delivered a plea to the
respondent’s particulars of claim together
with a claim in
reconvention;
(d) on the 31
st
May 2010 the respondent delivered a plea to the applicants’
claim in reconvention.
[3] On the 3
rd
December 2012 the matter came before Vahed J on trial. At the outset
the applicants’ counsel applied for an adjournment of
the
action on the basis that the matter was not ready to proceed. Vahed J
refused that adjournment and granted the applicants’
legal
representative leave to withdraw. He then immediately granted
absolution from the instance with costs on an attorney and
client
scale in respect of the applicants’ claim-in-reconvention, and
granted judgment in favour of the respondent for the
relief it sought
in its claim in convention.
[4] The applicants now
seek an order rescinding the judgment of Vahed J. Mr
Tobias
who appeared for the applicants, ultimately sought to rely upon the
provisions of Rule 42(1)(a) and (c) of the Uniform Rules of
this
Court as the basis upon which he moved for the rescission
application.
[5] Mr
Tobias
conceded that because the matter did not relate to a situation where
the applicants had been in default of a notice to defend or
of a
plea, the provisions of Rule 35(1) were inapplicable.
[6] Rule 42 of the
Uniform Rules of this Court provides :
‘
(1)
The court may, in addition to any other powers it may have,
mero
motu
or
upon the application of any party affected, rescind or vary :
An order or judgment
erroneously sought or erroneously granted in the absence of any
party affected thereby;
…
(c) an order or judgment
granted as the result of a mistake common to the parties.’
[7] Mr
Tobias
contended
that the judgment had been erroneously sought and erroneously granted
because it had not been drawn to the attention of
Vahed J, nor had he
considered the fact,
that the respondent, as
plaintiff, had not complied with the provisions of Rule 37(1) of the
Uniform Rules of this Court prior to
setting the matter down or in
any event prior to the date of the judgment.
[8] Rule 37(1) provides :
‘
A
party who receives notice of the trial date of an action shall, if he
has not yet made discovery in terms of rule 35, within 15
days
deliver a sworn statement which complies with rule 35(2).’
Sub-rule 35(2) deals with
the provision of a discovery affidavit. Mr
Tobias
submitted that the effect of sub-rule 37(1) is that a
party to an action is obliged to make discovery prior to setting the
matter
down for trial.
[9] Mr
Combrinck
,
who appeared for the respondent, submitted that there were two
questions to be answered :
(a) whether the judgment
of Vahed J was granted ‘in the absence of any party affected
thereby’ as required by Rule 42(1)(a);
and
(b) whether the judgment
was erroneously sought or erroneously granted as a result of a
mistake common to the parties.
In view of the conclusion
at which I have arrived in regard to the second question, I do not
deal with the first question.
[10] It was common cause
between the parties that there is no evidence that Vahed J considered
or dealt with the question of whether
the respondent had complied
with the provisions of the discovery rule prior to, or within 15 days
after setting the matter down
for trial. Mr
Tobias
submitted
that the provision of sub-rule 37(1) which should have been drawn to
his attention by the legal representative for the
respondent was a
factor which Vahed J should have considered in refusing to grant a
judgment after the applicants’ legal
representatives had
withdrawn.
[11] In my view the short
answer to this application is that it was irrelevant for Vahed J to
have considered whether or not the
respondent had made discovery, at
least at the stage when he was granting judgment.
[12] The consequences for
plaintiffs in not having made discovery at the time that the matter
is set down for trial may include
the fact that they may be precluded
by a judge from admittingevidence relating to items not discovered at
the trial, that they
may need to request an adjournment in order to
discover so that they can use documents at the trial, and they may
become mulcted
in costs because of their failure to discover. Those
are very different matters to the plaintiff in an action being denied
the
ability to prosecute a claim in the absence of a defence because
of a lack of discovery. The main purpose of discovery is to apprise
the defendant of the documents which the plaintiff intends to use at
the trial. It is a process primarily designed to prevent surprise
and
to ensure that at the outset of the trial all parties are fully
appraised of the case with which they have to deal or meet.
[13] In this case the
respondent did not discover. The applicants did not, however, take
this point in order to prevent the leading
of any evidence by the
respondent. They sought an adjournment on the basis that the matter
could not proceed and when that was
refused their legal
representatives withdrew from representing them. At that stage Vahed
J was only required to consider whether
or not be could grant default
judgment. Whether or not the respondent had discovered at that stage
became irrelevant. I have no
doubt that, had the lack of discovery
been drawn to his
attention by the
respondent’s counsel at the hearing when he granted judgment,
he would have regarded that fact as irrelevant,
and granted judgment
anyway.
[14] I am accordingly of
the view that the submission of Mr
Tobias
regarding the
prejudice to the applicants as a result of Vahed J not having
considered this aspect is without merit. Accordingly,
it cannot be
said that the judgment of Vahed J was erroneously sought or
erroneously granted. In addition, it was clearly not granted
as a
result of a mistake common to the parties.
[15] In the circumstances
the application falls to be dismissed with costs. I accordingly make
the following order :
The application for
rescission is dismissed with costs.
Date of hearing : 15
th
August 2013
Date of judgment : 26
th
August 2013
Counsel for the Applicant
: D G Tobias (instructed by Ashika Maharaj and Associates)
Counsel for the
Respondent : P J Combrinck (instructed by H J van Rensburg Inc)