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[2009] ZAGPPHC 66
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Shackleton Credit Management (Pty) Ltd v Grober and Another (27212/2002) [2009] ZAGPPHC 66 (18 May 2009)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT)
Case
number: 27212/2002
In the matter between:
SHACKLETON CREDIT MANAGEMENT
(PTY) LTD
APPLICANT
a
nd
J. M. GROBER
1
ST
RESPONDENT
NEDBANK
2
ND
RESPONDENT
JUDGMENT
Delivered:
18 May 2009
POTTERILL AJ
In terms of the amended notice the Applicant is
seeking an order that the applicant be substituted for Nedcor Bank
Limited as
a Plaintiff under case nr 2712/2002. The applicant
further requests leave to consequentially amend the summons and
Particulars
of claim.
The sequence of events in this matter is very
relevant, common cause and can be summarized as follows:
The Plaintiff, Nedcor Bank Ltd issued summons
against the defendant (first respondent to this application) on 2
October 2002 and
the summons was served on the defendant on 16
October 2002.
The defendant filed a notice of intention to
defend on 18 October 2002, but despite a Notice of Bar being served
on her on 17
September 2002 no plea was filed.
On 25 March 2003 the plaintiff, Nedcor Bank
Limited ceded their claim to Lynn & Main Attorneys Inc. Lynn
and Main Inc unconditionally
ceded and made over to Nedrec(Pty)Ltd
with effect from 1 July 2006. On 27 March 2007 Nedrec (Pty) Ltd
changed its name to Lynn
and Main Holdings (Pty)Ltd. On 21
September 2007 Lynn and Main Holdings (Pty) Ltd changed its name to
Shackleton Credit Management
(Pty) Ltd, the current applicant before
the Court.
On 27 May 2005 the Registrar grants default
judgment against defendant.
On 27 May 2008 Nedcor Bank Limited abandons the
judgment against the defendant (first respondent) in terms of Rule
41(2).
The applicant argues that it
has
locus
standi
to
launch the application as it has
locus
standi
as
cessionary. Furthermore the cession took place prior to
litis contestatatio
and the cession served to divest the plaintiff (second respondent)
of all its rights. Accordingly the judgment was taken at a
time when
the second respondent had already divested itself of its rights
against the First Respondent. The judgment was thus
erroneously
sought. It is argued that the effect of the abandoning is to revert
the litigation to the point immediately prior
to the taking of the
default judgment and does not have the effect of abandoning the
entire cause of action against the first
respondent.
In the alternative application is made from the
bar that the default judgment be rescinded in terms of Rule
42(1)(a).
5
On
behalf of the first respondent it is argued that the abandoning of
the judgment had the effect of
res judicata
barring the applicant from proceeding against the first respondent.
In the alternative abandonment equates to a judgment of absolution
form the instance. The abandonment is thus a final order and no
party can proceed against the first respondent.
The respondent also argued
that a distinction should be drawn between whether cession took
place before or after
litis
contestation
when
it comes to cession of a
res
litigiosae.
Litis contestatio is the stage in litigation when
the pleadings are closed as a result of:
either party having joined issue without adding
any new matter or another pleading;
If the last day for filing a further pleading has
passed and nothing further has been pleaded;
If the parties file with the registrar an
agreement that pleadings are closed;
If the parties can’t agree that pleadings
are closed and the court on application declares them closed.
In casu
litis
contestatio
was the day after the expiry of the period in the notice of bar.
Cession thus took place after
litis
contestatio
.
In
Brummer v
Gorfil Brothers Investments (Pty) Ltd en Andere
1999(3) SA 389 (SCA) on 399 G-H the court found:
“
In beginsel is daar geen
rede om die sessie van ‘n reg voor
litis
contestatio
toe te laat, maar nie die sessie van die reg, titel en belang van die
reghebbende in die aksie, onderhewig aan die regte van die
verweerder, na
litis
contestatio
nie.”
Cession could thus take place
after
litis
contestatio
subject to the rights of the first respondent. The applicant is the
cedent and had all right, title and interest in and to the
claim.
The applicant accordingly does have locus standi to bring the
application.
In
Waikiki
Shipping Co. Ltd. V Thomas Barlow and Sons (Natal) Ltd and Another
1978(1) AD
671 the Court found on p672 H:
”
There is and can be
no distinction in principle between the position after judgment and
the position after litis contestatio. It
is not so much a question
of extending the practice of giving a cessionary after judgment such
an election to cases cessions before
judgment, but whether or not
there is any difference in principle between what occurs after
judgment and before judgment but after
litis contestation. There is
authority for the practice of permitting a cessionary after litis
contestation an election to decide
either to continue the action in
the name of the cedent or to have himself substituted of record for
the cedent. “
The respondent is submitting
that the abandonment of the claim by the cedent bars the cessionary
from being substituted. The
reason for this is the claim being
abandoned results in
res
judicata
of
the claim, alternatively absolution from the instance. In these
circumstances the cedent was the correct party to abandon the
judgment because Nedcor had the judgment in its name. At the time
that default judgment was granted the cedent however had no
title,
right or interest to the claim and the default judgment was void.
The correct procedure for the
applicant to follow would have been an application for rescission of
the judgment.
In
Jacobson v Havinga t/a Havingas 2001(2) SA 177 (T)
it was found that default judgment, until rescinded, was binding and
thus competent to sustain a plea of
res
judicata
. In
that matter a notice of withdrawal of the action was filed by the
plaintiff after default judgment had been granted and a
new summons
was issued from a different court. The court found that in the new
summons the plea of
res
judicata
was
competent because the court granting the default judgment although
not having territorial jurisdiction did have jurisdiction
in the
sense to adjudicate upon, determine and dispose of the matter. The
judgment thus stood and constituted
res
judicata
until set aside.
In
casu
the default judgment is however void and not effective as
res
judicata
inter partes.
In the alternative there is a request that the judgment be
rescinded. As it is common cause that Nedcor had already ceded its
rights they could not proceed with obtaining default judgment or
abandoning the default judgment. The application for the rescission
of the default judgment is clearly brought as an alternative to the
void abandonment. The papers before me do not strictly comply
with
the requirements of rule 42. A Court however has a discretion to
correct an obviously wrong judgment and the respondent’s
representative did not in address object to a rescission of the
judgment.
The further question is
whether the abando
nment
of this default judgment does give rise to a defence of
res
judicata
.
In certain circumstances the abandonment of a judgment could
arguably give rise to such a defence. In casu however the void
abandonment of a void judgment can not be seen as a matter that has
been finally disposed of. There was accordingly no finality
to the
issue in the matter. As stated in the Jacobson-matter (supra), the
correct procedure would be to rescind the judgment
and not
abandoning of the judgment. I cannot find that the abandonment of a
void default judgment constitutes absolution from
the instance. I
accordingly rescind the judgment.
There is then also the further
application for the substitution of the plaintiff to Schakleton
Credit Management (Pty)Ltd. In
view of the fact that they indeed
have the right interest and title in the claim they then substituted
with the Court’s
permission as the plaintiff in case number 27212/2002. The
applicant must also pay the costs for this
application.
I accordingly make the following orders:
The default judgment is rescinded
The first respondent has 10 days to file a notice
of intention to defend from the date hereof (18 May 2009)
The applicant is to be substituted as the
plaintiff under case number 27212/2002 and the summons is to be so
consequently amended.
The applicant is to carry the
costs of the application for the rescissi
on.
The applicant is to carry the costs of the
application for substitution.
________________________________
S Potterill
Acting Judge of the High Court
Attorney for Plaintiff:
LYNN & MAIN INC
(Ref: A.Lombard/cc/10664)
C/O BARNARD & KHAN ATTORNEYS.
719 Park Street.
Clydesdale.
Pretoria.
Attorney for Defendant:
VAN ZYL LE ROUX AND HUTER.
(Ref: Geldenhuys 279724)
Salu Building.
c/o Andries and Schoeman Street.
Pretoria.