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[2011] ZAGPPHC 215
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Oakley Trans (Pty) Ltd v Mercedes Benz SA (Pty) Ltd (812/2009) [2011] ZAGPPHC 215 (9 December 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. 812/2009
DATE:09/12/2011
OAKLEY
TRANS (PTY)
LTD
........................................................................................
Applicant
and
MERCEDES
BENZ SA (PTY)
LTD
..........................................................................
Respondent
JUDGMENT
Van
der Byl, AJ:-introduction
[1]
This is an application for the rescission of a judgment granted on 5
April 2011 in terms of which -
(a)
the defence of the Applicant (First Defendant in the action) was,
because of its failure to comply with a court order dated
13 December
2010, dismissed with costs;
(b)
judgment was granted in favour of the Respondent (Plaintiff in the
action) in the sum of R254 644,80;
(c)
interest on the sum of R254 644,80 at the rate of 15,5 percent per
annum from 15 January 2009 to date of payment of that amount;
and
(d)
costs of suit.
(I
will for the sake of convenience refer to the parties as they are
cited in the action) [2] As is apparent from the Plaintiff's
Particulars of Claim, it is the Plaintiff's case -
(a)
that it was at all material times the owner of a 2008 Mercedes Benz
C180 motor vehicle;
(b)
that the Second Defendant was at all relevant times employed by the
First Defendant and acted in the course and scope of his
employment
with the First Defendant;
(c)
that on or about 22 March 2008 and at or near Kei Cuttings on the
Highway between East London and Butterworth an incident occurred
caused by a vehicle with registration number "NFB 014 GP having
spilled its load on the road whilst being driven by the Second
Defendant which resulted in Plaintiff's vehicle to loose control and
to leave the road;
(d)
that the sole cause of the incident was as a result of the negligent
driving of the Second Defendant in various respects;
(e)
that as a result of the incident the Plaintiff suffered damages in
the sum of R254 644,80.
[3]
After the pleadings were closed the Plaintiff on 9 February 2010
served a notice in terms of Rule 35(3) (record p. 41, Annexure
HJN 6)
on the First Defendant requiring it to make available to the
Plaintiff for inspection certain documents, amongst which,
the
employment records of of all its employees employed with it during
the period January 2008 to December 2008.
[4]
The First Defendant failed to respond to that notice, whereupon, the
Plaintiff on 19 August 2010 filed and served an application
for an
order directing the First Defendant to reply to the notice requiring
the First Defendant to make such documents available
for inspection
(record p. 60, Annexure HJN 12).
[5]
The First Defendant on 3 September 2010 filed a notice of intention
to oppose, but as the First Defendant failed to appear this
Court on
13 December 2010 granted on order ordering the First Defendant to
comply with the Rule 35(3) notice within 10 days as
from the date of
that order (record p. 84) which order was served on the attorneys of
record of the First Defendants on 6 January
2011 (record p. 83)
[6]
The First Defendant failed to comply with that order, whereupon, the
Plaintiff in terms of a Notice of Motion filed and served
on 7
February 2011 (record p. 78) on 5 April 2011 obtained the order which
is now sought to be rescinded (record p. 29).
The
application for rescission of the order granted on 5 April 2011
[7]
In an affidavit deposed to by the First Defendant's attorney of
record filed in support of the application for rescission, it
is
contended in relation to the First Defendant's failure to oppose any
of the relevant applications -
(a)
that he only became aware of the order granted against the First
Defendant on 25 May 2011 when the Plaintiff instructed the
Sheriff to
execute the order granted on 5 April 2011;
(b)
that he then, upon having obtained the documents which had given rise
to the granting of the order dated 5 April 2011, established,
(1)
that the Notice of Set Down dated 1 October 2010 (record p. 76)
informing the First Defendant that the application to compel
inspection was enrolled for hearing on 13 December 2010, (2) the
court order dated 13 December 2010 (record p. 83) and (3) the
Notice
of Motion - Application fo Dismiss Defence and Obtain Judgment dated
5 February 2011 (record p. 79) informing the First
Defendant that
application was enrolled for hearing on 5 April 2011, were served on
his office on 1 October 2010, 6 January 2011
and 7 February 2011,
respectively;
(c)
that the signature of the person who signed receipt therefor
corresponds with that of their "junior receptionist;
(d)
that he, on perusal of the office court file, could not find any
copy of those documents in the file;
(e)
that it was standard procedure in their office that the
administrative personnel file ail documents in the relevant file for
the responsible attorney's attention;
(f)
that he instructed ai! office staff to start an immediate search for
the documents, but no copies could be found;
(g)
that he suspect that the documents were either misfiled or misplaced
or otherwise the person who served the documents failed
to leave a
copy at their offices.
No
confirmatory affidavits are filed by the so-called 'junior
receptionist or any of the other office staff.
It
is, furthermore, apparent that no explanation is offered as to why,
in view of the fact tact that a notice of intention to oppose
the
application filed and served on 19 August 2010 for an order directing
the First Defendant to reply to the notice requiring
the First
Defendant to make such documents available for inspection, no
opposing affidavits were filed.
[8]
In relation to the question pertaining to the First Defendant's
alleged bona fide defence it is, relying on the Defendants'
plea,
contended -
(a)
that it is denied that the Second Defendant was the driver of vehicle
with registration number "NFB 014 GP" and that
the vehicle
referred to spilled its load (record p. 37, para 6);
(b)
that it is denied that the Second Defendant was employed by the First
Defendant and that it acted in the course and scope of
his employment
with the First Defendant (record p. 37, para 7);
(c)
that, in the event of it being held that the First and Second
Defendants are liable towards the Plaintiff, it is denied that
the
Second Defendant's negligence caused the accident (record p. 38, para
8).
[9]
It is, furthermore, pointed out that the Plaintiff has in any event
in the meantime issued two fresh separate summonses against
Micromath
on 3 February 2011 and against Lefofa Transfer on 21 February 2011
based on the same cause of action and based on the
same facts as that
of the main action.
[10]
In view of the aforegoing it is contended that, had the learned Judge
who granted the order on 5 April 2011 been informed of
these facts,
the Judge would not have granted the order and that the Plaintiff has
by not having done that deliberately misled
the Judge in order to
obtain the relevant order and misused this Court's proceedings. I am
not persuaded that the Judge would not
have granted the order. As a
matter of fact the Defendants' plea must have been available to the
Judge at the time. In any event
the application was one for the
dismissal of the plea because of the failure to make the necessary
documents available which may,
at least potentially, have primarily
proved or disproved the First Defendant's defence as set out in its
piea.
Evaluation
of the Plaintiff's application for rescission
[11]
As I already indicated and as is apparent from the Defendants' plea,
two defences are raised by the First Defendant, namely,
that it is
not the owner of the vehicle and that the Second Defendant is not
employed by it.
[12]
I fail to see to what extent the ownership of the vehicle that was
involved in the incident can be of any assistance to the
First
Defendant as the Plaintiff's case is in effect based on vicarious
liability in respect of the Second Defendant's actions.
[13]
The real issue between the parties is, apart from the question of
negligence, therefore, whether the Second Defendant was employed
by
the First Defendant (record p. 140, para 2.15).
[14]
That is exactly the reason why the Rule 35(3) notice was served and
filed so as to establish who were employed by the First
Defendant
during the period in question.
[15]
On that issue the First Defendant has, despite a court order, failed
to respond and has in fact to date failed to respond.
[16]
The First Defendant even failed for purposes of this application to
have made its employees' list available which would, if
made
available, have persuaded me that it has a bona fide defence.
[17]
I need, furthermore, to pint out that this matter is characterised by
a long history of delays on the part of the Defendants.
At first they
failed to file their plea before a notice of bar was served on them,
they failed to provide particulars for purposes
of trial and
thereafter a failure to make their discovered documents available for
inspection in terms of Rule 35.
[18]
As is apparent from the First Defendant's papers, the First
Defendant, as far as the alleged negligence of the Second Defendant
is concerned, made no attempt, apart from a denial of any negligence
in its plea, to show any defence on that issue. It would appear
that
the reason for the First Defendant's failure in this regard is the
fact that it seems that the First Defendant intends to
fall or stand
by its defence that the Second Defendant was at any time in its
employ.
Conclusion
[19]
In view of the aforegoing, I am of the opinion -
(a)
that, despite a highly dubious and unlikely explanation by the First
Defendant's attorney for the First Defendant's failure
to appear and
oppose a series of applications by the Plaintiff and, particularly,
the application to dismiss the Defendant's defence
(record p. 78), I
should not hold such failures by the attorney of Defendants' against
the First Defendant;
(b)
that, particularly, in view of the First Defendant's failure to
submit o list of its employees, the First Defendant failed to
disclose a bona fide defence.
[20]
In the circumstances 1 am unpersuaded that a case has been made out
for the rescission of the order made on 5 April 2011.
Order
[21]
In the result I make the following order: -
1.
THAT the application be dismissed.
2.
THAT the Applicant be ordered to pay the Respondent's costs of
opposition of ^ttois application.
P
C VAN DER BYL
ACTING
JUDGE^F THE HIGH COURT
ON
BEHALF OF APPLICANT:ADV J C KLOPPER
On
the instructions of: E W SERFONTEIN & ASSOCIATES INC
15
Bond Street Clydesdale PRETORIA Ref: Mr. H Naude/hp/SO 0081/09 Tel:
(012) 344 6353
ON
BEHALF OF THE RESPONDENT: ADV A C VAN DER NEST
On
the instructions of: BOTHA & SUTHERLAND
c/o
FRIEDLAND HART SOLOMON & NICOLSON Suite 301, Block 4, Monument
Office Park 79 Steenbok Avenue Monument Park PRETORIA Ref:
Mr.
Painter/wt/B4986 Tel: 012 424 0200
DATE
OF HEARING:5 December 2011
JUDGMENT
DELIVERED ON:9 December 2011