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[2012] ZAECELLC 21
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Imitha Yelanga Engineering CC v PLM Construction CC t/a PLM Plant Hire (EL 323/2010, ECD 523/2010) [2012] ZAECELLC 21 (30 November 2012)
5
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION –
EAST LONDON
Case no: EL 323/2010
ECD 523/2010
Date Heard: 27/11/12
Date Delivered: 30/11/12
In the matter between:
IMITHA YELANGA ENGINEERING CC
..............................................
APPLICANT
And
PLM CONSTRUCTION CC t/a PLM PLANT
HIRE
............................
RESPONDENT
JUDGMENT
SMITH J:
The Applicant seeks an order
rescinding the default judgment granted on 20 March 2012, in terms
whereof it was ordered,
inter
alia,
to pay an amount
of R1 046 114.93 to the Respondent.
The Applicant was initially
represented by Mxuko attorneys, who withdrew as attorneys of record
during February 2011. At that
stage however pleadings had already
closed and the matter was ripe for hearing. Even though the notice
of withdrawal did not
comply with the rules of court in several
material respects, the Respondent had caused a notice of set down to
be served by the
sheriff at the address stated in the aforesaid
notice. The sheriff was however unable to serve the notice of set
down at the
given address because the premises were found to be
vacant and locked.
In addition,
the
Registrar’s notice of set down was also sent to the address
which had been provided by the Applicant’s erstwhile
attorneys.
The Applicant contends that it
never received a notice of set down, or any other process from the
Respondent. It became aware
of the judgment for the first time on 8
May 2012 when the sheriff had attempted to execute a warrant of
execution against its
property.
The Applicant in addition contends
that the default judgment was granted erroneously. It avers that the
notice of set down referred
to the wrong case, being case number
231/2010, instead of the correct case number, being 232/2010. The
latter case was therefore
not properly set down and the judgment was
therefore granted in error. This averment has however turned out to
be unfounded as
it was subsequently established that the Registrar’s
notice of set down did in fact bear the correct case number, and the
matter was accordingly properly set down.
Insofar as its defence to the
Respondent’s claim is concerned, the Applicant’s
founding affidavit stated only the
following:
“
A total amount
of R1 692 164.00 was electronically transferred to the first
respondent between 4
th
June 2009 and 16
th
November 2009. Copy of bank statement is attached marked ‘PR
13’.”
It is trite law that a court may
rescind a default judgment if the applicant has shown that the
application is
bona fide
; has provided a reasonable
explanation for his or her default; and has established that the
default was not willful or due to
gross negligence. In addition, an
applicant must also show that he or she has a
bona fide
defence,
and that the application was not merely brought in order to delay
the plaintiff’s claim. He or she must therefore
set out
averments which, if proved at a trial in due course, will constitute
a comprehensive defence to the plaintiffs’
claim.
(Grant v
Plumbers (Pty) Ltd
1949 (2) SA 470
(OPD)
at 476-477;
Colyn v Tiger Food Industries t/a Meadow Feed Mills (Cape)
2003 (6)
SA 1
(SCA) at 9E-F)
I am not persuaded that the
explanation provided by the Applicant establishes that it was not in
willful default. The Applicant
had, on its own admission, known that
its attorney of record had withdrawn during February 2011. It also
knew at the time that
the pleadings had closed and all that remained
was for the matter to be set down for hearing by the Registrar. It
did not make
any effort to enquire from the Registrar as to the
progress of the case, or to instruct attorneys to represent it. In
addition,
its representative had known that the notice of withdrawal
had provided an address where further process could be served on it.
It has not taken any steps to ensure that its representative was
available to receive service of processes at the aforesaid address,
or to provide another address for service of court documents. I am
therefore of the view that, at the very least, the Applicant
was
grossly negligent in this regard.
In the event the Applicant has
failed to set out averments which constitute a
bona fide
defence
to the Respondent’s claim. Apart from stating that it had paid
some R1.6 million to the Respondent, the Applicant
has not stated in
respect of which accounts these monies were paid, or whether they
constituted full and final settlement of
the Respondent’s
claim. In an addendum which was annexed to the Respondent’s
declaration, the latter claimed that
the Applicant owed it an amount
of R2 628 275.93 and that it had paid the sums of R1 482 161 and
R100 000, respectively, leaving
the balance of R1 046 114. 93. Even
on its own version therefore the payment made by the Applicant could
not have been in full
and final settlement of the Respondents’
claim.
The Applicant’s plea in the
main action was equally evasive in this regard. Paragraph 6 thereof
reads as follows:
“
The contents of
this Paragraph are denied as if specifically traversed. In
amplification thereon the Defendant owes the Plaintiff
an amount of
R16 000.00 as he had paid him a certain amount of money.”
The Applicant has therefore in my
view failed to establish any of the legal requisites for rescission
of judgment, and the application
can therefore not succeed.
In the result the application is
dismissed with costs.
_____________________
J.E SMITH
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Applicant : Advocate
Mayekiso
Attorney for the Applicant : Mquqo
Attorneys
Shop 4, Zanempilo Health
Oxford Street East London
Ref: Kem/nn/c.1429
Counsel for the Respondents : Mr
Dekeda
Attorney for the Respondents : Abdo
and Abdo
No 33 Tecoma
Berea
East London
Ref: Mr Dekeda/vs/b02630
Date Heard : 27 November 2012
Date
Delivered : 30 November 2012