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[2012] ZAGPPHC 201
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Nel v Ritson (34030/2010) [2012] ZAGPPHC 201 (11 September 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NUMBER: 34030/2010
DATE:11/09/2012
In
the matter between:
PIETER
JOHANNES LODEWIKUS NEL
…....................................................
APPLICANT
and
THOMAS
WALTER EDMUND
RITSON
............................................................
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
In this matter the respondent obtained judgment by default against
the applicant, for outstanding rental for a residential property.
The
claim is based on a written lease agreement between the applicant and
the respondent. The judgment was granted on the 6 October
2010. A
warrant of execution to attach the applicant's movable goods was
issued on the 31 October 2010. The applicant is therefore
bringing an
application for the rescission of the said judgment.
[2]
The applicant became aware of the judgment on the 12 December 2010.
He served and filed the application to rescind the judgment
on the 15
December 2010. On the 7 February 2011 the respondent served his
opposing affidavit and on the 23 April 2011 the applicant
served his
replying affidavit. The replying affidavit was served more than two
months after the respondent had served his opposing
affidavit.
[3]
The respondent is opposing the application and has raised two points
in limine, which I will deal with before considering the
application.
THE
FACTUAL BACKGROUND
[4]
The facts of the case are that on the 30 January 2010 the parties
signed a lease agreement. The relevant salient terms of the
agreement, which I will quote verbatim from the lease agreement, are
the following:
"2.2
DURATION OF THE LEASE
2.2.1
This Lease shall be for a period of 60 months commencing on 01
February 2010.
2.2.2
...
2.3
RENTAL
2.3.1
The rental shall be the sum of R40 000.00 (Forty Thousand Rand per
month) (hereafter referred to as "The Rental")
payable in
advance, free of exchange, without any deduction for any cause
whatsoever, on or before the 1st day of every month by
way of a
direct cash deposit into the trust account of the owner, ...
2.3.2
The rental for the first 12 month will be paid in advance before
occupying the premises.
2.4
DEPOSIT
2.4.1
The Lessee shall, before moving into the Premises, pay the sum of R80
000.00 (Eighty Thousand Rand) as a Key deposit, ....
2.4.2
[5]
The applicant did not comply with the above terms of the lease
agreement or any other term for that matter. It is in respect
of
these terms that the respondent has issued summons and obtained
judgment against the applicant.
POINTS
IN LIMINE
[6]
The respondent raised the following points in limine: firstly, the
failure by the applicant to apply for condonation for the
late filing
of the replying affidavit; secondly, that the application was fatally
defective due to the applicant's failure to include
a prayer in his
notice of motion requesting the setting aside or staying of the
warrant of execution.
CONDONATION
[7]
As already stated, the applicant filed his answering affidavit more
than two months after the respondent had filed his opposing
affidavit. This affidavit was filed way out of time without any
condonation from the court. Even at the hearing of this application
the applicant's counsel did not apply for condonation. The contention
by the respondent's counsel is that in the absence of the
condonation
the applicant cannot rely on the affidavit and the court must
therefore strike it out, and I agree.
[8]
In terms of rule 27 (1) and (3) of the Uniform Rules of Court, only a
court may upon application on notice and on good cause
shown, make an
order extending or abridging any time for doing any act or may
condone any non-compliance with the rules. There
being no
application, in this instance, for the court to extend the time
within which to file the answering affidavit or to condone
the late
filing thereof, I find that the answering affidavit is not properly
before me and must be regarded as pro non scripto.
DEFECTIVE
APPLICATION [9] I do not agree with the contention by the
respondent's counsel that failure by the applicant to include
a
prayer in its notice of motion requesting the setting aside or
staying of the warrant of execution pending the rescission, renders
the application fatally defective. The judgment in NEL v ROUX NO &
OTHERS
2006 (3) SA 56
at 59F -J, to which counsel referred me to,
does not find application in this instance. The facts of that case
are not similar
to those in the present case. In that case, at the
time of the hearing of the application for the rescission of
judgment, the applicant's
property had already been sold in
execution. The applicant having filed his application to rescind the
judgment before such sale
in execution took place. The judge had,
therefore, to decide whether, in terms of section 78 of the
Magistrates Court Act, the
filing of an application for rescission of
judgment automatically suspends its execution. The judge, correctly
so, found that the
section does not provide for the automatic
suspension of the execution of a judgment on filing of an application
for rescission
of that judgment; and that there is also no
substantive rule of law that says the filing of an application to
rescind a judgement
automatically suspends execution thereof. 1 did
not understand the judge to be saying that failure by an applicant to
pray for
the stay of execution would render the application fatally
defective.
[10]
In this instance, the applicant's property has been attached and not
yet sold. It is not necessary, in my view, for the applicant
to pray
for the stay of execution. The consequences of a default judgment
fall to be set aside once that judgment has been rescinded.
Those
consequences would include the issue of a writ of execution. Where a
writ has already been issued, they will include the
setting aside of
the writ together with the attachment of the applicant's property.
See NAIDOO v SQMAl
2011 (1) SA 219
(KZP) at 221H.
THE
APPLICATION
[11]
As regards the application, the issue that I was required to decide
was whether the defence raised by the applicant to the
respondent's
claim was a bona fide defence.
[12]
The defence raised by the applicant is that the agreement, which the
respondent relies upon, lapsed due to the fact that he
(the
applicant) never took occupation of the premises and never complied
with the suspensive conditions in paragraphs 2.3.2 and
2.4.1 of the
lease agreement.
[13]
The respondent on the other hand denies that the defence raised by
the applicant is a bona fide defence to the respondent's
action.
According to him, paragraphs 2.3.2 and 2.4.1 are not suspensive
conditions but are merely the naturalia of the agreement
which fixes
a specific date of payment.
[14]
Rule 31 (2) (b) imposes, on the applicant, the burden of actually
proving, as opposed to merely alleging, good cause for a
rescission.
Good cause includes, but is not limited to, the existence of a
substantial defence. The defence must not show a probability
of
success: it suffices if the applicant shows a prima facie case, or
the existence of an issue which is fit for trial. The grounds
of
defence must be set forth with sufficient detail to enable the court
to conclude that there is a bona fide defence. See Erasmus:
SUPERIOR
COURT PRACTICE at B1-203 - B1-204 and the cases quoted there.
[15]
It is therefore not upon this court to interpret the lease agreement.
What is expected of me is to determine whether the applicant
has a
bona fide defence to the respondent's claim. This should just be a
prima facie defence, in the sense of setting out averments
which, if
established at the trial, would entitle the applicant to the relief
sought. I am satisfied that the applicant has succeeded
in doing so.
COSTS
[16]
The applicant's counsel contended that a costs order should be made
against the respondent for if the responded had considered
the matter
properly he would not have opposed the application. In the
alternative he argued for an order for costs to be in the
cause. The
respondent's counsel argued for a cost order against the applicant as
the respondent was entitled to oppose the matter.
My view is that an
appropriate cost order in the circumstances of this case is for cost
to be in the cause.
[17]
Consequently, the following order is made:
17.1
The default judgment granted against the applicant on the in this
matter is rescinded.
17.2
The applicant is granted leave to defend the matter.
17.3
Costs to be costs in the cause.
E.M.
KUBUSHI, J
On
behalf of the appellant: Adv. Schoeman
Instructed
by:
McMENAMIN,
VAN HUYSSTEEN & BOTES INC
Attorneys
for Applicant 528 Jorissen Street Sunnyside
PRETORIA
On
behalf of the respondent: Adv. Boots
Instructed
by: WEAVIND & WEAVIND
Attorney
for Respondent Weavind Forum
573
Ferhrsen Street
New
Muckleneuk
PRETORIA