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[2009] ZAGPPHC 260
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Hazar Corporation (Pty) Ltd v Muassa Investments CC Trading as Crown Fabrico and Another (40554/06) [2009] ZAGPPHC 260 (24 April 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH HIGH COURT PRETORIA)
CASE
NO: 40554/06
DATE:
2009.04.24
In
the matter between:
HAZAR
CORPORATION (PTY) LTD
….................................................................
Applicant
and
MUASSA
INVESTMENTS CC Trading as CROWN FABRICO
…...........
1st
Respondent
THE
SHERIFF OF THE HIGH COURT:
CENTURION
...............................
2nd
Respondent
JUDGMENT
BERTELSMANN
J: This is an application for the rescission of a judgment that was
granted against the applicant which judgment was
granted a
considerable period ago, on the 27 March 2007.
The
applicant alleges, by way of an affidavit filed by Mr Knight, that it
became aware of the judgment only when the sheriff arrived
with a
warrant for execution consequent upon a judgment of default having
been granted by default.
An
urgent application was launched which was dismissed for lack of
urgency. Thereafter an application for rescission was filed which
had
to be postponed because no heads of argument had been filed and
nobody had apparently been instructed to prepare them. Thereafter
the
matter was enrolled for the 13th May 2008 and it was dismissed with
costs because there was no appearance for the applicant.
The court is
now faced with a further application that the judgments granted on
the 27th March 2008 and the 13th May 2008 should
be rescinded.
An
explanation for the failure to file heads of argument is
nonexistent. The explanation for the failure to enter appearance
against the claim is that the summons was served on an address that
was no longer occupied by the applicant. There is a dispute
of fact
in this regard. The question whether the summons did come to the
applicant’s management’s notice need, however,
not be
debated at this stage.
On
the 13th May 2008 when the matter was enrolled, there was no
appearance for the applicant and the application was dismissed.
The
explanation that is offered for that failure is that settlement
negotiations had been entered into, that there had been some
meeting
with a representative of the first respondent and that the deponent,
Mr Knight, bona fide believed that the matter would
not proceed. That
is all that is said. There is no reference to a draft agreement, to
proposals, no reference to further meetings.
There is no explanation
of the fact that the previous attorneys, who represented the
applicant at that stage, sent an e-mail to
Mr Knight to advise
applicant that the matter was still on the roll.
There
is no reference to any telephone call or any letter that was sent to
the first respondent’s representatives or directors,
or to Mr
Yussep, to confirm that the matter would not proceed. There is no
attendance at court. There is no explanation why there
was not even a
simple telephone call made to Mr Yussep to confirm that the matter
would not proceed.
When
the matter was enrolled for this week, there was no practice note.
There were no heads of argument. The matter was kept on
the roll
because of the first respondent’s request that the matter be
dealt with in the light of the history that I have
recited. The
absence of a practice note and the absence of heads of argument until
this morning has not been explained in the condonation
application
that was presented today. There was a communication from the Bar that
instructions were given at a very late stage.
There
is a history of a change of attorneys at critical points in the
process. All these machinations point to a litigant that is
in deep
trouble and cannot keep attorneys in funds. There is no other
explanation for the repeated change of attorneys. Quite apart
from
which, however, the defence that is raised against the claim by the
first respondent for which judgment was granted, is that
the
applicant allegedly has a counterclaim. The first version of this
counterclaim was presented in an affidavit by Mr Knight which
asserted that it was the applicant who had suffered damages. When it
was pointed out in the answering affidavit that business had
in fact
been conducted through two related corporate entities that did
business together, the applicant and an associated company,
who dealt
with Mr Price to whom deliveries had been made, Mr Knight in his
replying affidavit offered the explanation that because
the companies
were so closely associated, he had confused their identity in his own
mind.
It
is very difficult to understand how a bona fide business person, who
is a director of two companies that attend to separate branches
of
his business and presumably have separate books of account, operating
at least notionally independently although controlled
by the same
shareholders, could conceivably and honestly have come to make a
mistake of such significant dimensions. It creates
the impression of
a counterclaim having hurriedly been concocted and put on paper to
proffer a defence to avoid incurring a judgment
debt.
In
any event, when the explanation was advanced that these two companies
had operated together, is was averred the associated company
had
suffered damages which the applicant ‘had taken over’.
There is not a title of documentary evidence to support
this version.
There are no book entries. There is no cession. There is no transfer.
There are no delivery notes. There are no inter-company
notes. There
is no shred of bookkeeping of whatever nature. There is no company
resolution. There is nothing to substantiate the
allegation that is
now being placed before the court. Today, when the consequences of
this litany of all the failures to comply
with the Rules of this
Court must be explained there is again no practice note filed
timeously. No heads of argument are filed.
There is no explanation
other than that that was offered from the Bar, that instructions were
received late. There was no apology
to the first respondent and there
was no apology to the court. As I have already underlined, there has
been no application for
condonation.
Against
this background the essential elements of an application for a
rescission of judgment, are absent, namely that there must
be a bona
fide explanation for the default and that there is a bona fide
defence, that, if the judgment is rescinded, would constitute
a
defence to the first respondent’s claim.
The
history of this matter allows only one of two conclusions. There is
either a consistent purposeful attempt at evading the consequences
of
the judgment or there is a persistent abuse of the processes of this
court, or perhaps both, and the court must set its face
sternly
against these machinations that prevent honest businessmen from
enforcing their claims.
The
application for' rescission of judgment is dismissed. Because of the
woeful history of the application, it is dismissed with
costs on the
scale of attorney and client.