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2012
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[2012] ZAFSHC 200
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IHC Building Supplies (Pty) Ltd and Another v Moyake Trading CC and Others; Moyake Trading CC v IHC Building Supplies (Pty) Ltd and Others (1037/2012, 1037/2012) [2012] ZAFSHC 200 (1 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Application No: 1037/2012
In
the matter between:-
IHC BUILDING
SUPPLIES (PTY) LTD
....................................
1
st
Applicant
MORNE ERNST
......................................................................
2
nd
Applicant
And
MOYAKE TRADING CC
......................................................
1
st
Respondent
SHERILL LOSER N.O.
.
......................................................
2
nd
Respondent
MMAHLAJWANE MARIA
CHAKA N.O.
.............................
3
rd
Respondent
(cited herein in their
capacity as trustees of the
Devinfra Trust,
IT2309/2001)
THE MEC: DEPARTMENT
OF CO-OPERATIVE
GOVERNANCE,
TRADITIONAL AFFAIRS AND
HUMAN SETTLEMENTS,
FREE STATE PROVINCIAL
GOVERNMENT
...................................................................
4
th
Respondent
IN RE: Application no
1037/2012
MOYAKE TRADING CC
................................................................
Applicant
and
IHC BUILDING
SUPPLIES (PTY) LTD
................................
1
st
Respondent
MORNE ERNST
..................................................................
2
nd
Respondent
SHERILL LOSER N.O.
.
.......................................................
3
rd
Respondent
MMAHLAJWANE MARIA
CHAKA N.O.
.............................
4
th
Respondent
(cited herein in their
capacity as trustees of the
Devinfra Trust,
IT2309/2001)
THE MEC: DEPARTMENT
OF CO-OPERATIVE
GOVERNANCE,
TRADITIONAL AFFAIRS AND
HUMAN SETTLEMENTS,
FREE STATE PROVINCIAL
GOVERNMENT
...................................................................
5
th
Respondent
______________________________________________________
JUDGMENT BY:
THAMAGE, AJ
______________________________________________________
HEARD ON:
18 OCTOBER 2012
______________________________________________________
DELIVERED ON:
1 NOVEMBER 2012
______________________________________________________
[1] This is an
application for rescission brought under common law. First and second
applicants here seek to rescinded and set aside
judgement and order
granted by Snellenburg, AJ in their absence on the 26 April 2012
under case number 1037/2012.
[2] Applicants thus
approach this court for a relief in the following terms as per their
Notice of Motion.
2.1. That the default
judgment granted against the first applicant on the 26 April 2012 be
rescinded.
2.2. Leave be given to
the first applicant to file an opposing affidavit to the application
launched by the first respondent, within
15 days of granting of the
order.
2.3. That the first
respondent be afforded an opportunity to reply on the aforementioned
opposing affidavit within 10 days thereafter.
2.4. Alternatively to the
abovementioned prayers, the order granted by Snellenburg AJ on the 26
April 2012 be varied and read as
follows:
“
The
first respondent forthwith to comply with the agreement between the
first respondent and the applicant and the agreement between
the
applicant, the first respondent and the fifth respondent, for the
supply of material in respect of the 187 uncompleted housing
units,
attached to the founding affidavit as annexure G in the Motheo Local
Municipality, Bloemfontein, Free State Province district.”
2.5. That the first
respondent be ordered to pay the costs of this application, only in
the event of the respondent opposing it.
[3] Applicants filed a
founding affidavit, confirmatory affidavit by Sheril Loser as well as
a replying affidavit in support of
their application.
[4] Respondents on the
other side also filed notice to oppose as well as, answering
affidavit, supporting affidavit and confirmatory
affidavits in
support of their opposition.
[5] The fourth respondent
filed notice to abide by the decision of this court.
[6] Applicants withdrew
the alternative prayer mentioned under paragraph 2.3 above, hence
both appellants’ and respondents’
counsel made
submissions in regard the other prayers except for the alternative
prayer. I am thus not going to make a ruling in
that regard.
[7] At common law, the
court is entitled to rescind a judgment obtained by default provided
that sufficient or good cause has been
shown. Sufficient cause
includes a reasonable and accepted explanation for the default and
that on the merits the party has a
bona fide
defence which
carries
prima facie
prospects of success. See
CHETTY v
LAW SOCIETY, TRANSVAAL
[1985] 2 ALL SA 76
(A) at page 79
(parallel citation
1985 (2) SA 756
(A).
[8] Applicants in this
regard did receive the process and upon receiving same, they made use
of services of Finhuis who provided
advice on the said documents
meaning the main application. Later on the services of Graham
Attorneys were utilised so as to communicate
with the current
respondents’ attorneys. A letter was then written to the
respondents’ attorneys to the effect that
the main application
is not going to be opposed.
[9] Applicants on
receiving the documents only read the first page of the notice of
motion and did not read the whole documents.
[10] Furthermore, it is
the applicant’s case that his contract with the respondents was
the supply of material only and not
the supply of material and
construction of houses. Having received the court processes, he
understood the prayers to be the one
of supply of materials.
[11] The following
argument was also raised namely:
The order may be
interpreted so as to suggest that IHC is to construct the 187
uncompleted housing units and order to supply the
relevant material
in respect thereof alternatively the physical construction of the
building material and building material only.
[12] Coming now to the
question as to whether the applicant was in wilful default. Before a
person can be said to be in wilful default,
the following elements
must be shown:
12.1 Knowledge that the
action is being brought against him;
12.2 A deliberate
decision to refrain from entering an appearance to defend though free
to do so; and
12.3 Certain mental
attitude towards the consequences of the default - See
Erasmus,
SUPERIOR COURT PRACTICE
, B1-302.
[13] As regards 12.1 and
12.2 the respondent knew of the application and also decided not to
oppose the application, to an extent
that their attorney even wrote a
letter confirming same.
[14] Can it now be said
that the respondent had a certain mental attitude towards the
consequences of the default. It has been argued
that the respondent
knew his obligation towards the applicants to be that of the supply
of building material, and that he took
steps by consulting with
Finhuis and later with Graham Attorneys. According to my view,
applicant did not just ignore the application
but did something by
consulting with Finhuis and later with Graham Attorneys.
[15] The mental element
of the applicant should be one of the several elements which the
court must have in determining good cause.
See
HARRIS v ABSA
BANK LTD t/a VOLKSKAS
2006 (4) SA 527
(T).
[16] I am thus of the
view that applicant was not a wilful default, since he did not sit
back with the full knowledge of the consequences
of his default.
[17] I now turn to the
other requirement namely whether the defendant had a
bona fide
defence.
I suppose not to make the
ruling or decision on the main application but have to peruse the
main application, also the contention
the applicant is making, and to
decide as to whether
prima facie
the applicants have a
bona
fide
defence.
[18] Applicants’
version is to the effect that the written agreement, marked annexure
C on his founding affidavit constitute
his obligation towards the
respondent. He further states that the agreement has a non-variation
clause. Salient feature of the
agreement is that he has to supply
materials only and not material and construction of 300 houses. He
thus, contest that he is
obligated to construct/erect the houses.
[19] On the other hand,
the respondent states that applicants’ obligation is not only
to supply the material, but to erect
the houses as well. Also that he
has been actively involved in the erection of the other completed
houses to an extent that he
also attended the wage dispute of the
workers who were constructing the houses.
[20] Respondent do
acknowledge that the contract referred to as annexure C do have a
non-variation clause but there is another contract
running parallel
to annexure C, whereby the applicant had to construct the houses,
i.e.
pactum de non petendo
. That this contract was between the
second applicant and Devifra (Trust).
[21] Applicants defence
relies heavily on the so-called Shifren Clause, see
SENTRAL
KO-OP GRAAN MPY BEPERK v SHIFREN
1964 (4) SA 760
A. This
non-variation or Shifren clause was confirm by the Appellant Division
in
BRISLEY v DROSKE
2002 (4) SA 1
(SCA).
[22] I am now faced with
two contentions; the Shifren Clause whether is it applicable in this
regard or the
pactum de non petendo
, whereby the second
contract between the applicant and Devinfra Trust. I am of the view
that my duty is not to decide whether the
Shifren Clause should
prevail or the
pactum de non petendo
should prevail. My duty
is whether based on the non-variation clause and the parole evidence
rule, the applicant has a
bona fide
defence which may succeed.
[22] I have to consider
all relevant circumstances and make my discretion herein – see
COLYN v TIGER FOOD INDUSTRIES LTD t/a MEADOW FEED MILLS (CAPE)
2003 (6) SA 1
(SCA) at 9B-D. I therefore come to the conclusion that
applicants application succeeds.
[23] I have been
requested to order costs against the respondents as they ought not
have opposed the application for rescission.
I am mindful that costs
may follow the result, at the same time this is not a final judgment,
matter still have to be decided on
merits.
[24] The following order
is thus made:
24.1 That the judgment
granted against the applicant on the 26 April 2012 is hereby
rescinded.
24.2 That leave is
granted to the first applicant to file an opposing affidavit to the
application launched by the first respondent,
within 15 days from
date this judgment was delivered.
24.3 That the 1
st
respondent is afforded an opportunity to reply to the aforementioned
opposing affidavit within 10 days thereafter.
24.4 That costs of these
proceedings are costs in the cause.
_________________
S. J. THAMAGE, AJ
On behalf of applicants:
Adv. S. Grobler
Instructed by:
Graham Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. P. Zietsman
Instructed by:
Bokwa Attorneys
BLOEMFONTEIN
/eb