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[2011] ZAKZPHC 47
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Van Jaarsveld and Others v Strydom and Another (2813/2010) [2011] ZAKZPHC 47 (5 October 2011)
5
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case
No: 2813/2010
In the matter between:
HENDRIK JOHANNES VAN JAARSVELD
…................................................
1
st
Applicant
HENDRIK JOHANNES VAN JAARSVELD N.O
….......................................
2
nd
Applicant
EMMERENTIA FREDERIKA VAN JAARSVELD
N.O.
…..............................
3
rd
Applicant
JOHANNES MARTHINUS STEENKAMP N.O
…..........................................
4
th
Applicant
and
SAMUEL JACOBUS STRYDOM
…..........................................................
1
st
Respondent
LORETTA STRYDOM
…..........................................................................
2
nd
Respondent
JUDGMENT
SEEGOBIN J
[1] This is an application for
rescission of a judgment granted by Swain J on the 21 June 2010. It
is accompanied by an application
for condonation due to the fact that
it was brought out of time. For the sake of convenience the parties
herein will be referred
to as in the action.
[2] The judgment in question was
granted under the following circumstances. The first and second
plaintiffs instituted an action
against the first, second and third
defendants (“the defendants”) for payment of the sum of
R383 462,88(three
hundred and eighty three thousand four hundred
and sixty two rand eighty eight cents) together with
mora
interest
and costs. Summons was served on 22 April 2010. The action was duly
defended by the first, second and third defendants.
On 21 June 2010
summary judgment was granted
by
consent
in terms of prayers
1, 2 and 3 of the application for summary judgment. Pursuant to a
writ of execution payments totaling more than
R300 000,00(three
hundred thousand rand) were made to the plaintiffs. The present
application for rescission was only instituted
on 12 January 2011
i.e. more than six (6) months after judgment was granted.
[3] The application for rescission was
brought in terms of the provisions of Rule 31(2)(b),
alternatively
Rule 42 of the Uniform
Rules
alternatively
under
the common law.
[4] It is quite clear that Rule
31(2)(b) does not apply as the judgment in question was not granted
in terms of Rule 31. The defendants’
reliance on Rule 42(1)(a)
of the Uniform Rules is on the basis that the judgment was
erroneously granted because the Trust was
not properly joined due to
the fact that the fourth defendant (who is cited for the first time
in this application) was not previously
cited by the plaintiffs in
the action. It is well established that in order to succeed herein,
the defendants bear the
onus
of satisfying the court, not only that
the requirements of Rule 42(1) are present but also that the present
application has been
brought within a reasonable time
1
.
[5] The legal requirements for the
granting of condonation were succinctly set out in
Omar
v Government of South Africa and Others
2
in which condonation was sought for
the late filing of an opposing affidavit. It was held that courts
have a very wide discretion
in respect of condonation applications.
For condonation to be granted, however, it was incumbent upon the
applicant to establish
sufficient cause for condonation. A relevant
factor to be considered was the degree of non-compliance with the
rules. Additionally,
the following must be taken into account in
determining the reasons for such non-compliance: the length of the
delay, the explanation
for the delay, the importance of the case, the
prospects of success, the respondents’ interest in the finality
of the judgment
and the avoidance of delay in the administration of
justice.
[6] It is common cause that the
application was instituted more than six (6) months after summary
judgment was granted by agreement
between the parties. The question
which arises is whether this application was brought “
within
a reasonable time”
.
The common law phrase “
reasonable
time”
is generally
applied in the context of contractual disputes and does not admit of
a single legally determinative meaning. The determination
of what
constitutes a reasonable time is a fact-bound inquiry
3
.
[7] In my view, the delay of more than
six (6) months in this matter is unreasonable. The defendants, on
their own version, were
fully aware not only of the judgment (to
which they consented) but also of the writ which came to their
attention by at least 12
July 2010 or shortly thereafter. The only
explanation provided by the defendants for the delay is that they
were financially unable
to afford an attorney. This explanation was
only proffered when they were challenged in this regard by the
plaintiffs. No such
explanation emerges from their founding
affidavit. Interestingly, the defendants have been unable to point to
a single piece of
correspondence to indicate that they had informed
the plaintiffs, at an early stage, that they intended applying for a
rescission
of the judgment but that they were financially unable to
do so at that time. Even more interesting is the fact that while they
complain about their poor financial position, they somehow managed to
find more than R300 000,00 (three hundred thousand rand)
for
payment towards the judgment debt. Significantly, the fourth
applicant who is cited in these proceedings without a proper
application for joinder, makes no mention of his financial position
or whether the Trust was able to finance the litigation or not.
[8] All in all, I consider that there
has been an unreasonable delay on the part of the defendants in
instituting these proceedings
and their explanation for the delay
just does not have the ring of truth about it. The delay caused by
the defendants has adversely
affected not only the plaintiffs’
interests in the finality of their claim but also the administration
of justice.
[9] It is trite that an application
for rescission of judgment under the common law must:
(a) be brought within a reasonable
time, after obtaining knowledge of the judgment;
(b) set out reasons for the default;
and
(c) set out a
bona fide
defense.
[10] The findings that I have already
made with regard to the delay and the explanation therefore apply
with equal force to the
first two (2) requirements in terms of the
common law. The only question that remains is whether the defendants
have established
that they have a
bona
fide
defense to the claim.
[11] In his heads of argument and in
argument before me, Mr
Dredge
who appeared on behalf of the
plaintiffs, conceded that if it is found that the defendants are
bona
fide
and have satisfied all
the other requirements for rescission, then in that event the
allegations raised by the defendants constitutes
issues which should
be determined by a trial court.
[12] In their opposing affidavit the
plaintiffs aver that the defendants have paid,
without
protest
(my emphasis), an
amount exceeding R300 000,00 (three hundred thousand rand) in
respect of the judgment. They further allege
that the defendants
signed two acknowledgments of debt in respect of the first and second
plaintiffs. These acknowledgements of
debt are annexures C1 and C2 to
the opposing affidavit. Annexure C1 dated 12 July 2010 is for an
amount of R383 462,88(three
hundred and eighty three thousand
four hundred and sixty two rand and eighty eight cents) and annexure
C2 which is dated 26 July
2010 is for an amount of R481 100,71
(four hundred and eighty one thousand one hundred rand and seventy
one cents). Both these
documents acknowledge indebtedness to the
plaintiffs and in respect of which the first and second defendants
undertook to pay the
sum of R15 000,00 (fifteen thousand rand)
per month with the first payment due on 15 August 2010.
[13] Dealing with these factual
allegations in their replying affidavit, the defendants aver that the
acknowledgements of debt were
signed under duress [“
onderdwang”
]
and were not accepted by the plaintiffs. They accordingly aver that
no contract came into being between them and the plaintiffs.
They
further aver that neither acknowledgement of debt is in the name of
the Trust. In my view, these allegations fall tobe rejected
for the
reasons that follow. First, these allegations were not made by the
defendants in their founding affidavit. Second, there
is no factual
basis for the defendants claim that the acknowledgements of debt were
signed under duress. Third, the payments made
by the defendants were
appropriated by the plaintiffs towards the debt owed [
Macrae
v National Bank of SA
1927 AD 62
at
67]. Nowhere is it alleged by the defendants that they owe a separate
personal debt for exactly the same capital amount as the
debt that
gave rise to the present proceedings. In my view, the defendants
have, until the launch of this application, created
the impression
that they accepted the judgment as being correct (after all, they
consented to it) and complied therewith by allowing
the execution of
the writ to proceed without any legal interference or objection on
their part. If they believed that they were
not liable for the debt
or that the judgment was granted erroneously, nothing stopped them
applying for a stay of the writ pending
an application to rescind the
judgment. The only reason advanced for not taking steps sooner is a
lack of funds. This explanation,
in my view, is so flimsy so as to be
rejected as being improbable in the circumstances. In my view, the
conduct of the defendants
after the judgment amounts to nothing more
but an express acquiescence in the judgment
4
.
Additionally, I consider that the failure of the plaintiffs to cite
the fourth defendant as a trustee in the action has not rendered
the
summons defective in any way. Such failure has not resulted in any
prejudice being caused to the Trust. This is a technical
defect which
was never raised before. I accordingly conclude that the defendants
have failed to establish that they have good prospects
of success so
as to persuade me that condonation should be granted.
[14] For the reasons set out herein, I
grant the following order:
The application for condonation and
consequently for rescission, are dismissed with costs.
1
See
First National Bank of Southern Africa Limited v
Van Rensburg N.O. in re First National Bank of Southern Africa Ltd v
Jurgens
1994(1) SA 677(T) at 681 B-G
2
[2005]
3 All SA 65(N)
3
S
ee:
Strachan & Co Ltd v Natal Milling Co. (Pty) Ltd
1936 NPD 327
at
333
also
Cardoso v Tuckers Land and Development Corporation (Pty) Ltd 1981(3)
SA 54 (W) 63 E
4
S
ee:
Hlatswayo v Mare &Deas
1912 AD 242
at 259
also
Schmidlin v Multisound (Pty) Ltd 1991(2) SA 151 (C) at156 B