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[2009] ZAGPPHC 318
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Topigs SA (EDMS) BPK v Bapsfontein Boerdery BK (56990/07) [2009] ZAGPPHC 318 (16 February 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(
NORTH
GAUTENG HIGH COURT, PRETORIA
)
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: 56990/07
DATE:
2009-02-16
In
the matter between
TOPIGS SA (EDMS) BPK
and
BAPSFONTEIN BOERDERY
BK
JUDGMENT
RAULINGA,
J
:
The respondent in this matter obtained
judgment by default after summons was issued. The applicant brings an
application to this
court for rescission of the said judgment in
terms of rule 31(2)(b).
The
requirements which must be met when a party applies for
rescission
of judgment are clear and it would appear that there is no clear
challenge as to the requirements which have been raised
by the
applicant, to which that applicant must give a reasonable explanation
of his default and that the application must be
bona
fide
and not made with the intention of merely delaying
plaintiff’s claim. And also the applicant must show that he has
a
bona fide
defence to plaintiffs claim
and that it is only sufficient if he makes out a
prima
facie
defence.
The applicant and
respondent had entered into a written agreement with a nonvariation
clause and later a verbal agreement was entered
into.Initially the
respondent were to sell pigs of between 8 and 10 weeks weighing
approximately 24 kg to the applicant at a certain
fixed price. Later,
when there were problems, the chief executive officer of the
respondent approached the applicant with a view
that the applicant
should accept pigs of less than 16 kg and for a period between
January and June that particular year the parties
continued to deal
in these pigs and the applicant was paying R150 for the purchase of
pigs weighing less than 16 kg. In July the
respondent then turned
around and wanted to rely on the written contract and that the
applicant had to pay a higher price. The
applicant objected to this
and that is the reason we have this matter before us today.
I
think what is important is that the requirements in terms of section
31(2) should actually be met in as far as the rescission
for judgment
is concerned. However, the issue of a
bona fide
defence becomes very, very important and one will have to look into
whether the parties complied with the agreement as well as
the verbal
agreement and as to what should happen to the nonvariation clause
which is referred to as the Chevron clause.
I need only refer to the
fact that when the respondent’s chief executive officer
approached the applicants he knew very well
that already they were
continuing for 6 months to pay a lesser price for pigs weighing less
than 16 kg. However, he had intended
that a higher price should be
enforced without disclosing this to the applicants. .
Indeed, without going
into the issue of estoppel and only relying on the issue of fraud, on
that issue alone, the applicants would
actually suffer prejudice.
They would suffer even more prejudice if rescission for judgment were
to be refused.
I would not like to go
into the issue of how the court should actually use its discretion
and whether there is a need to strike
out certain paragraphs as
referred to by the respondent, neither would I like to only refer to
the authorities which were mentioned
because the facts in this
particular case are different from the authorities cited, although
those authorities bind this court.
ORDER
In the circumstances I am
of the view that the applicant has met the requirement as stated in
rule 31 of the rules of this court
and that the application should
succeed with costs.
Therefore, rescission for
judgment is granted with costs.
MR
ROUX: As the court pleases.
MR
FERREIRA: As the court pleases.
COURT
ADJOURNS