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[2012] ZAGPPHC 141
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Brown Mcfarlane Africa (Pty) Ltd v KMG Services Centres (Pty) Ltd (53881/2011) [2012] ZAGPPHC 141 (1 August 2012)
NOT
REPORTABLE
IN
THE HIGH COURTOF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 53881/2011
Date:
1 August 2012
In
the matter between:
BROWN
MCFARLANE AFRICA (PTY)
LIMITED
…........................................................
Plaintiff
and
KMG
SERVICES CENTRES (PTY)
LIMITED
.................................................................
Defendant
JUDGMENT
PRETORIUS
J,
This
is an application for rescission of a default judgment where the
court ordered payment of interest in the sum of R15882.19
calculated
at the rate of 15.5% per annum from 1 July 2011 to date of final
payment, both days inclusive and costs were ordered
as between
attorney and client. The order was granted on 9 November 2011.
Both
parties agreed that this application is brought in terms of Rule 31
(2) (b) and not in terms of rule 49 as set out in the notice.
In
these circumstances the applicant must give a reasonable explanation
of his default, the application must be bona fide and not
made with
the intention of delaying the plaintiffs claim and the applicant has
to show that he has a bona fide defence to the plaintiffs
claim.
According
to the applicant he obtained knowledge of the judgment when the
warrant of execution was served on Mrs Jackson on 7 December
2011.
The applicant was obliged to launch this application within 20 court
days. The application for rescission was only received
on 12 March
2012, two months later than the rules provide.
The
applicant relies on the fact that the summons was served on Mrs
Howard at the applicant's registered address and that the applicant
had no knowledge thereof. She did not provide an affidavit setting
out how it came about that the summons was not brought to the
applicant's attention. On 10 and 12 October 2011 two further letters
were sent to the applicant and no explanation is given as
to why the
applicant did not respond to these letters.
The
bona fide defence, according to the applicant, is that there was no
agreement that interest would be paid; or in the alternative
the
applicant contends that according to the written agreement the rate
of interest is set out in clause 6.7 of the agreement entered
into by
the parties:
"The
Company reserves the right to levy interest on all overdue amounts at
3% (three percent) above the then current commercial
bank prime
overdraft rate as quoted by ABSA Bank Limited from time to time."
(Court's emphasis)
Default
judgment was granted for interest calculated at the rate of 15.5%,
contrary to the provisions of the written agreement.
The agreement
was signed by Mr Kim McEwen on 15 April 2011. Mr McEwen was a
director at the time that he concluded the agreement.
This is an
instance of mora ex re and the interest in terms of the agreement
should have been paid when payment of the debt was
due according to
the demand which was 10 August 2011.
Default
judgment was granted for payment of interest from 1 July 2011. Due to
the agreement the plaintiff could not have requested
interest a
temporae morae, but should have claimed in terms of clause 6.7 of the
agreement. The court finds that the applicant
has a bona fide
defence.
It
is clear that although the applicant may have been negligent in not
bringing the application for rescission of judgment timeously
the
applicant was not wilful. However, I am not allowing the replying
affidavit which was only handed to court when the application
was
heard. The application was also set down by the respondent as the
applicant had failed to do so. After I have considered whether
the
applicant had been in wilful default and has shown good cause and
that the applicant has a bona fide defence against the plaintiffs
claim, I find the applicant has proved a prima facie case which
should be tried. This is a result of the wrong percentage of interest
being claimed and then granted by the court.
The
following order is made:
1.
The late delivery of the recision application in condoned;
2.
The default judgment granted on 9 November 2011 under case number
53881/2011 is rescinded;
3.
No order as to costs.
Judge
Pretorius
Case
number : 53881/2011
Heard
on : 26 July 2012
For
the Applicant / Plaintiff : Adv JC van Eeden
Instructed
by : Van Greunen & Assosiates
For
the Defendant : Adv CD Roux
Instructed
by : RC Christie
Date
of Judgment : 1 August 2012