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[2012] ZAFSHC 39
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South African Commercial Catering and Allied Workers Union v Kramer Weihmann & Joubert (3818/2011) [2012] ZAFSHC 39 (15 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3818/2011
In the matter between:-
SOUTH AFRICAN
COMMERCIAL CATERING
AND ALLIED WORKERS
UNION
…........................................
Applicant
and
KRAMER WEIHMANN &
JOUBERT
…..............................
Respondent
_____________________________________________________
HEARD ON:
1
MARCH 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
15 MARCH 2012
_____________________________________________________
[1] This is an
application for rescission of judgment.
[2] The respondent sued
the applicant by way of simple summons for the amount of R1 193
718,00 for professional services rendered
by the respondent to the
applicant.
[3] After the applicant
filed notice of intention to defend, the respondent filed an
application for summary judgment. The applicant
did not file any
papers resisting the application for summary judgment. The respondent
then set the matter down and served the
notice of set down on the
applicant’s Bloemfontein attorneys. On the date of hearing of
the application for summary judgment,
no-one appeared on behalf of
the applicant and summary judgment was granted against the applicant
in the amount claimed in the
summons.
[4] The respondent then
issued a writ of execution pursuant thereto, which writ was served on
the applicant on 17 January 2011.
[5] The applicant then
filed the present application, which the respondent is opposing. The
applicant’s application is premised
on both Rule 31(2)(b) and
Rule 42(1) of the Uniform Rules of Court. Although both counsel
confined their arguments only to the
said rules, the common law must
also be investigated, as I will show later.
[6] Rule 42(1)(a)
6.1 The applicant avers
that the application for summary judgment was granted erroneously, in
that the provisions of Rule 32(2)
had not been complied with by the
respondent. It claims that the deponent to the affidavit in support
of summary judgment failed
to allege that he can swear positively to
the facts.
6.2 This contention is
difficult to comprehend, as the deponent says
“
all the
facts leading up to the issuing of summons by the plaintiff against
defendant fall within my personal knowledge and belief,
precisely
because I had acted as defendant’s attorney in all the matters
referred to in the summons.”
I, therefore, reject
this contention, and I find that the judgment cannot be rescinded
based on Rule 42(1)(a).
[7] Rule 32(1)(b)
7.1 Rule 31(2)(b) states
as follows:
“
a defendant
may within 20 days after he or she has knowledge of
such
judgment apply to court upon notice to the plaintiff to set aside
such
judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as to it seems meet.”
(my
emphasis)
“
Such
judgment”, refers to default judgment granted against defendant
who is in default of delivery of notice of intention
to defend or of
a plea, as set out in Rule 31(2)(a).
It
is clear that the default judgment granted
in
casu
, is not the one envisaged in the
said Rule and consequently Rule 32(1)(b) is not applicable. See
NYINGWA v MOOLMAN NO
1993 (2) SA 508
(TK) at
509 I – 510 A.
[8] Common law
Where
the application for rescission cannot be made in terms of the Rules
referred to above, the court can still rescind judgment
under
common law as Trengove AJA, as he then was, held in
DE
WET AND OTHERS v WESTERN BANK LTD
1979 (2) SA 1031
(A) at
1042 F – 1043 A.
In
the
NYINGWA
-case,
above, White J said the following at 511 I – 512 A:
“
It
follows that any judgment, including a summary judgment, can be
rescinded under the common law. If the merits of the dispute
were
considered before summary judgment was granted, rescission can follow
only on the grounds set out in the
Childerley
case;
if the merits were not considered and the judgment was granted by
default, the grounds for rescission are virtually unlimited,
and the
only prerequisite is that 'sufficient cause' therefor must be shown.”
In
CHETTY v LAW SOCIETY, TRANSVAAL
1985 (2) SA 756
(A) at 765 it was held that the elements of ‘sufficient cause’
are the following:
that the party seeking
relief must present a reasonable and acceptable explanation for his
default; and
that on the merits such
party has a
bona fide
defence carrying some prospects of
success.
I, therefore, find that
if the judgment should be rescinded in the present matter, it
should be done under common law.
[9] In the present case
the applicant avers that, after receipt of summons, it engaged the
services of a firm of attorneys in Johannesburg
(RM Attorneys) to
defend the matter on its behalf. The Johannesburg attorneys appointed
correspondent attorneys in Bloemfontein
(Mabalane Seobe Inc) who
served and filed the necessary notice of intention to defend on the
respondent’s attorneys and with
the Registrar of the court.
[10] 10.1 On 1 November
2011, Mabalane Seobe sent a copy of application for summary judgment
to RM Attorneys, whereupon RM Attorneys,
by a letter dated 9 November
2011, instructed Mabalane Seobe to draw, sign, serve and file notice
of intention to oppose the application
for summary judgment.
On the same date (9
November 2011), the respondent served a notice of set down on
Mabalane Seobe, stating that matter is set
down for 24 November
2011. Mr. Seobe confirms in a supporting affidavit that they did
not send the said notice of set down
to RM Attorneys as their
secretary had misplaced it and it never came to his attention. He
fails, however, to explain why he
did not carry out the instruction
as set out in RM Attorneys’ letter dated 9 November 2011.
This led to summary
judgment being granted by default against the applicant, as there
was no-one to represent it in court on
24 November 2011.
[11] 11.1 The
relationship between the applicant and respondent spans a number of
years, dating as far back as 1993. The respondent
had been acting on
behalf of the members of the applicant on a continuous basis.
The
respondent sued the applicant for services rendered over a period
of time, involving many matters. The applicant avers that
it had
been paying the respondent for such services and that respondent
has also not accounted to it for payments received
from other
parties, where cost orders were awarded in favour of the applicant.
Whereas it is clear that the applicant does
not dispute its
liability to respondent for professional services rendered, it is
clear that the quantum thereof is in dispute.
In the absence of a
detailed account as to how the payments made (both from applicant
and other parties) were applied, it cannot
be said that the amount
claimed is the correct amount. Mr. Nortje has, as a matter of fact,
also conceded that the total amount
of the taxed bills was R1 502
286,57 and he caused to be deducted an amount of R310 586,37 after
investigation of all the cases
and the payments had been allocated
to the files. What he omits to state, is payments from which
sources, the applicant or
other parties, or both. See
TREDOUX
v KELL
ERMAN
2010
(1) SA 160
(C), where it was stated that where there is no detailed
account as to how the payments made by a client were allocated, the
attorney’s account cannot be said to be a liquidated account.
I am mindful of the
fact that, where the respondent in the opposing affidavit stated
that by the time the summons was issued,
the outstanding account
was an amount of R1 193 718,00 (being the amount for which judgment
was granted), the applicant in
its reply thereto stated:
“
I do not
take issue with the contents of this paragraph.”
Whilst I am not satisfied
with the explanation for this apparent admission proffered by
applicant’s counsel during the hearing,
I find that his was an
inadvertent admission, as it is contrary to the whole case of the
applicant and the facts.
[12] In the light of the
above, I now proceed to deal with the question as to whether
applicant has satisfied the elements of ‘sufficient
cause’
as set out in
CHETTY
, above.
It is clear that it was
always the intention of the applicant to defend the action and also
to oppose the application for summary
judgment and that its
bona
fides
can therefore not be questioned, considering the steps
that it had taken to instruct the attorneys to act on its behalf.
It
is indeed the attorney who must advise his or her client as to
what step to take next and as to what instructions he or she needs
at different stages of the case. The applicant can therefore not be
faulted for waiting to hear from its attorneys as to what
to do
next.
I, therefore, find that
the applicant has presented a reasonable and acceptable explanation
for its default.
On the question of a
bona fide
defence, I have already stated that the question
of quantum is questionable and it can only be resolved by evidence.
I, therefore,
find that the applicant has shown a
bona fide
defence carrying some prospects of success.
[13]
COSTS
In this case, although
I made a finding that the applicant has made a reasonable
explanation for his default, it (its default)
has nothing to do
with the conduct of the respondent, but with the conduct of its
attorneys. On the contrary, there is nothing
wrong or
mala fide
with the conduct of the respondent in this matter.
Counsel for the
applicant also conceded during the hearing that the decision by the
respondent to oppose this application, was
not unreasonable and
that the applicant is asking for an indulgence from court.
In the light hereof, I
find that it is just and equitable that the applicant should pay
the costs of the respondent for opposing
the application.
[14] I consequently make
the following order:
14.1 Summary judgment
granted against the applicant (defendant) under case number 3818/2011
on 24 November 2011, is hereby rescinded
and set aside.
Applicant (defendant)
is granted leave to defend the action.
The plaintiff must file
its declaration within 15 days from the date of this order.
The applicant
(defendant) must pay the costs of the application.
_________________
N.W. PHALATSI, AJ
On
behalf of applicant: Adv. N. Rali Ralikhuvhana
Instructed
by:
Mabalane
Seobe Inc
BLOEMFONTEIN
On
behalf of respondent: Adv. S. Grobler
Instructed
by:
Kramer
Weihmann & Joubert
BLOEMFONTEIN
/sp