About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2012
>>
[2012] ZAKZDHC 56
|
|
Ithala Development Finance Corporation v Sinsatheleni Investments CC (3288/11) [2012] ZAKZDHC 56 (27 September 2012)
NOT REPORTABLE
In the KwaZulu-Natal High Court,
Durban
Republic of South Africa
Case
No : 3288/11
In
the matter between :
Ithala
Development Finance Corporation
..........................................................
Applicant
and
Sinsatheleni
Investments CC
........................................................................
Respondent
Judgment
Lopes J
[1] The applicant seeks the rescission
of a summary judgment granted against it in its absence on the 14
th
July 2011. That summary judgment was for the payment of R286 322,40
together with interest thereon and costs.
[2] The history of the matter may be
seen as follows :
a summons was served on the applicant
at the instance of the respondent on the 17
th
March 2011;
the applicant’s attorneys
delivered a notice of intention to defend on the 29
th
March 2011;
an application for summary judgment
was filed on the 12
th
May 2011, and served on the
applicant’s attorneys on the 17
th
May 2011;
as the application for summary
judgment was out of time, the respondent sought condonation of the
late filing in its notice of
application for summary judgment. As no
opposition to the summary judgment application was forthcoming,
summary judgment was
granted on the 14
th
July 2011;
during August of 2011 the maintenance
co-ordinator of the applicant, who was involved in the project
pursuant to which the money
claim was made, discovered that summary
judgment had been granted. He later ascertained that the applicant’s
then attorney,
Ngcobo and Xulu Incorporated had ceased to exist. The
allegation is made that when the summary judgment application was
served
on Ngcobo and Xulu Incorporated, the attorney who was dealing
with the matter had already left Durban for Johannesburg;
on the 23
rd
August 2011
this application for rescission was delivered.
[3] Mr
Khuzwayo
who appeared
for the applicant, made it clear that the application for rescission
was based of the common law as expanded in
De Wet and Others v
Western Bank Ltd
1979 (2) SA 1031
(A) at 1042 F – 1043.
See
also :
Colyn v Tiger
Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at 9 C – F.
The requirements as set out in
Colyn
are :
a reasonable explanation of default;
that the application is made bona
fide;
that the applicant has a bona fide
defence to the plaintiff’s claim which prima facie has some
prospects of success.
[4] In this matter the facts are
almost on all fours with those in
Colyn
.
Colyn
makes it
clear that inexcusable inefficiency on the part of a litigant’s
attorney is difficult to regard as a reasonable
explanation. I am,
however, mindful of two aspects :
in
De Wet
at page 1042 G - H,
Trengove AJA stated :
‘
Broadly
speaking, the exercise of the Courts’ discretionary power
appears to have been influenced by considerations
of
justice and fairness, having regard to all the facts and
circumstances of the particular case
.’
in
Colyn,
Jones AJA, when
dealing with an explanation of default which was not regarded as
reasonable stated at page 9 I :
‘
Even
if one takes a benign view, the inadequacy of this explanation may
well justify a refusal of rescission on that account unless,
perhaps,
the weak explanation is cancelled out by the defendant being able to
put up a
bona
fide
defence
which has not merely some prospect, but a good prospect of
success...’
[5] The applicant’s defence in
this case is that a bill of quantities was prepared in a building
contract wherein the parties
agreed to the technical specification of
the material to be used in refurbishing the building. The respondent,
however, purchased
material which had not been agreed upon, and
despite notification from the respondent, went ahead and refurbished
the building
using the incorrect materials. The continuing incorrect
work was eventually stopped and another contractor engaged to remedy
the
respondent’s incorrect workmanship. This counter-claim
relates directly to the work the respondent claims it did, and for
which it is entitled to payment, as set out in its particulars of
claim in the action.
[6] Mr
Nqala
, who appeared for
the respondent, impressed upon me the allegation in the respondent’s
answering affidavit that a Mrs S Y
Mhlongo, employed by the applicant
as a maintenance co-ordinator and responsible for the project
concerned, had instructed the
respondent’s representative to
use polycarbonate sheets on the wall of the building. But no
substantiation of this allegation
in the form of a confirming
affidavit by Mrs Mhlongo was put up despite the lapse of a year since
the allegation was made.
[7] There was also some dispute
between the parties as to the meaning of the phrase ‘
0,58
mm IBR or other approved sheeting ...’
as contained in
the bill of quantities, with Mr
Khuzwayo
averring that it is a
clear reference to chromodek sheeting. This, he submitted, was the
evidence of the applicant’s maintenance
co-ordinator who was
the deponent to the applicant’s affidavits. I regard this
evidence as prima facie persuasive.
[8] Mr
Nqala
submitted that the
facts of this matter were similar to those which were found in
Bristow v Hill
1975 (2) SA 505
(N). The applicant in that
case, however, had failed to keep in touch with his attorney, and had
relocated to Harrismith without
notifying his Durban attorney of an
alternative address in Durban. He also failed to contact his attorney
until after he became
aware of a warrant of execution which had been
issued pursuant to the judgment. The learned judge in that case
viewed the conduct
of the applicant as having been negligent.
[9] I am not persuaded that the same
circumstances apply in this matter. There is no suggestion in this
matter that the applicant
was indifferent to the litigation or was
negligent in not keeping in touch with its attorney. Having entered
an appearance to defend,
it no doubt relied upon its attorney to let
it know of the next step to be taken in the litigation. Failure to
notify the applicant
of the receipt of the application for summary
judgment was clearly something for which the applicant’s
attorney was to blame.
[10] In all the circumstances, I find
that the applicant has satisfied the requirement for rescission by,
inter alia, establishing
a good prospect of success in the action.
[11] With regard to the question of
costs, whilst the applicant may view its conduct in the matter as
being free from blame, there
is no suggestion whatsoever that the
respondent acted in any way improperly, either in seeking summary
judgment or in resisting
the grant of this application. The applicant
seeks an indulgence from this court and there can be no suggestion
that the respondent
should bear any of the costs thereof.
[12] I accordingly make the following
order :
1. The summary judgment granted
against the applicant in favour of the respondent on the 14
th
July 2011 under case number 3288/2011 in this court is rescinded and
replaced with the following :
(a) summary judgment is refused;
(b) the applicant is given leave to
defend the action;
(c) the costs of the summary judgment
application are reserved for decision by the trial court.
2. The applicant is directed to pay
the costs of the application for rescission.
Date of hearing : 20
th
September 2012
Date of judgment : 27
th
September 2012
Counsel for the Applicant : T S
Khuzwayo (instructed by Shembe Attorneys)
Counsel for the Respondent : C M Nqala
(instructed by Mthethwa Attorneys)