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[2009] ZAGPPHC 125
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Mokwena v Boschplaats Boerdery (Pty) Limited and Another (39828/2008) [2009] ZAGPPHC 125 (23 October 2009)
IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, HIGH COURT PRETORIA)
CASE NO: 39828/2008
In the
matter between:
SONTAGA
ROBERT MOKWENA
APPLICANT
And
BOSCHPLAATS
BOERDERY (PTY) LIMITED FIRST APPLICANT
THE
SHERIFF FOR DISTRICT OF LETHABA SECOND
APPLICANT
JUDGMENT
MAVUNDLA,
J.
[2] On 22
August 2008, Hartzenberg J interdicted the present first respondent
and the second respondent from giving effect of the
aforesaid order
of J Ledwaba pending the outcome of the present application.
[3]
Before dealing with the merits of this matter, I need to remind
myself of what the authorities state with regard to an application
for rescission of a judgement. There are three ways in which a
judgment taken in the absence of one of the parties may be set aside,
namely in terms of:
(i) Rule 31(2) (a);
1
(ii) rule 42 (1)(a);
2
(iii) Common law.
[5] In
casu, both counsel for the applicant and for the first respondent are
ad idem that this application is being brought in terms
of common
law. Under common law the Court has discretion to grant rescission of
judgment where sufficient or good cause has been
shown.
3
For the applicant to succeed, he must show good cause (a) by giving a
reasonable explanation of his default; (b) by showing that
his
application is made bona fide; and (c) by showing that he has a bona
fide defence to the plaintiff's claim which prima facie
has some
prospect of success, vide Colyn v Tiger Food Industries Ltd/ t/a
Meadow Feed Mills (Cape).
4
[6]
Although in the matter of Chetty v Law Society, Transvaal
5
the Appellate Division Court said that:
"It is not sufficient
if only one of these two requirements is met; for obvious reasons a
party showing no prospect of success
on the merits will fail in an
application for rescission of a default judgment against him, no
matter how reasonable and convincing
the explanation of his default.
And ordered judicial process would be negated if, on the other hand,
the a party who could offer
no explanation of his default other than
his disdain of the rules was nevertheless permitted to have a
judgment against him rescinded
on the ground that he had reasonable
prospects of success on the merits."
[7]
Notwithstanding what has been said in the Chetty matter, I must
nonetheless bear in mind the qualification by the Supreme
Court of
Appeal in the Colyn v Tiger Foods Industries matter
6
that: "Even if one takes a benign view, the inadequacy of his
explanation may well justify a refusal on that account unless,
perhaps, the weak explanation is cancelled out by the Defendant being
able to put a bona fide defence which has not merely some
prospect,
but a good prospect of success (Melanev Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532 OF)."
[8]
The first respondent issued summons against the applicant under case
number 19518/08 and alleged that it was the owner of
immovable
properties portion 2 of farm Kranskop and farm Boschhoek 415 both
situated in the Province of Limpopo and sought the
eviction of the
applicant on the basis that the latter is in illegal occupation of
the said farms.
[9] It is
common cause that summons were issued on 17 April 2008 and dully
served upon the applicant, who entered an appearance
to defend
through K. P. Seabi Attorney. An application for summary judgment was
served on K. P. Seabi and Associates on 29 May
2008 and enrolled for
23 June 2009.
[10] In
casu, the applicant's erstwhile attorney of record, KP Seabi
Attorneys, withdrew as attorneys of record, by serving notice
of
withdrawal as attorneys of record on 5 June 2008 and filing same with
the registrar on 6 June 2008. Appellant attached to his
founding
papers a letter from Seabi wherein Seabi states that he had a
consultation with the applicant on 27 May 2008 and informed
him of
the financial difficulties in regard to this case and that he, Seabi,
would not be in a position to brief counsel further
in this matter.
The applicant paid Seabi a cheque of R8 000. 00 which cheque was
dishonoured by the bank.
7
[11] The
applicant has explained that the cheque of R8000. 00 he gave to Seabi
was post dated, but the latter pre-maturely deposited
the said cheque
and as the result it was dishonoured. It would seem that the
applicant had by the 27 May 2008 paid Seabi a sum
total of R24
000.00.
8
[12] The
applicant further states that he became aware of the granting of the
summary judgment on 1 July 2008 during a meeting at
the offices of
the Department of Land Affairs in Tzaneen when one Van Zyl from the
respondent's offices informed him that summary
judgment was granted
on 28 June 2008.
[13]
Applicant avers that Seabi did not tell him of the date of the
application for the summary judgment. After Seabi withdrew as
attorney of record, the applicant says that he approached other
attorneys but could not get immediate help. He approached Mr.
Rathelele of Tzaneen on 6 June 2008.
[14]
According to the applicant concedes that Seabi telephoned informed
him telephonically that there was an application for summary
judgment, bit did not tell him when is such application enrolled for.
He says that he is a lay person, does not know what the summary
judgment process entail and that had he known he would have informed
Rathelele during a consultation that Seabi had mentioned in
a
telephonic discussion summary judgment.
[15]
Without repeating every averment he has made, it suffices to point
out that, the application for rescission was not immediately
launched
until on 22 August 2008. It would seem that this delay was as the
result of the fact that counsel was consulted during
June 2008 and
required that he be furnished with complete documentation relating to
this matter. The counsel was in Pretoria, Rathele
was based in
Tzaneen. These factors eventually necessitated giving instructions to
a correspondent attorneys based in Pretoria,
the present attorneys of
record Sambo-Mlahleki Attorneys. It is further averred by the
applicant that Sambo had difficulty in obtaining,
inter alia,
documents relating to one of the cases under case number 24706/2006,
whose court file was found empty, and further
documents in possession
of Seabi, who it would seem that he was only prepared to have these
released against tender of further
payment, and only presented his
bill of costs towards his fees in August 2008.
9
[16] The
documents pertaining to the aforesaid case number were subsequently
obtained from his erstwhile attorneys Smit and Marais
during about 6
August 2008. Armed with all necessary documentation counsel was
consulted about 19 August 2008, who subsequently
prepared this
application for rescission. It needs mention that the application was
in two parts, firstly Part A in the form of
urgent interdict,
restraining the implementation of the eviction order of the Ledwaba
J, pending finalization of this rescission
application under Part B.
[17] It
is contended by Mr. Terblanche that the applicant has no explanation
for his default other than to blame his former attorney,
Mr. Seabi
who withdrew on 23 June 2008. The applicant's new attorneys M C
Rathele only came on record on 28 June 2008, two days
after the grant
of the summary judgment. The application for rescission was only
launched on 28 August 2008 after the founding
affidavit was deposed
to on 21 August 2008.
[18] Mr.
Terblanche further submits that the alleged negligence of his former
attorney does not avail the applicant, in this regard
he relies on
the following cases: Bristow v Hill
1975 (2) SA 505
(N); De Wet v
Western Bank Ltd
1979 92) SA 1031
(a); Tshabalala v Peter
1979 (4) SA
27
(T); De Souza v Kerr
1978 (3) SA 635
(W); Topol v LS Group
Management Services (Pty) Ltd 1988 (1) 639) W).
[19] What
I need to decide, is whether the applicant was in wilful default. His
erstwhile attorney withdrew as attorney of record
on 5 June 2008.
Seabi informed the applicant per fax of his withdrawal as attorney of
record. However, Saebi did not inform the
applicant that there is an
application for summary judgment set down on 23 June 2008. Saebi did
not inform the applicant that the
there was an application for
summary judgment.
[20] In
the matter of Reinecke v Incorporated General Insurance Ltd
10
Wessels JA pointed out that the Court is "loath to penalise a
blameless litigant on account of his attorney's negligence."
[21]
Before the Court can visit an applicant with the remissness of his
attorney, the applicant must show that none of such remissness
has
anything to do with him, vide Mbuthuma v Xhosa Development
Corporation Ltd.
11
[22] In
casu, Seabi withdrew from the matter because of none payment by the
applicant of his fees. It is a well known fact that
attorneys cannot
brief counsel without having been placed in funds. However, the
applicant's explanation that Seabi prematurely
deposited the post
dated cheque of R8000, 00, seems to be the reason why Seabi ended up
withdrawing. In my view, the applicant
cannot be blamed for the
withdrawal of his attorney under those circumstances. Further the
applicant states that Seabi did not
inform him of the date of the
summary judgment application. I am of the view that the applicant's
explanation for his absence is
satisfactory and I therefore accept
it; vide Rose and Another v Alpha Secretaries Ltd.
12
[23]
Indeed, the application was only brought in 28 August 2008 whereas
the judgment was granted 28 June 2008. The applicant's new
attorneys
of record, Rathele, only came on record on 28 June 2008, few days
after Seabi withdrew as attorney of record. In my view,
the applicant
did not delay in giving instructions to another attorney after Seabi
withdrew. The subsequent delay in bringing the
application much
earlier has been fully explained. This subsequent delay was
occasioned by the fact that Rathele did not immediately
get the
applicant's file contents much sooner from Seabi, so as to prepare
the relevant application.
[24] In
my view, in casu, the delay in bringing the application for
rescission much earlier than August 2008 cannot be ascribed
to any
remissness on the part of the applicant. Neither can it be said that
his present attorneys of record were remiss in not
bringing the
application much earlier. There seems to have been logistical
problems as well as factors beyond their control, the
difficulty in
obtaining all the documents much earlier, and the inflexibility on
the part of Seabi in not being prepared to release
documents to his
colleagues until all his fees have been paid as well as the dispute
around his fees.
13
[25] In
the matter of Cavalinias v Claude Neon Lights S.A. Ltd
14
the Court referring to the matter of Silber v Ozen Wholesalers (Pty)
Ltd
15
said:
"In the judgment of
the Court Shreiner, J.A., said that "good cause" was not
confined to disclosing of a substantial
defence (p352): that "good
cause" should not be further defined (p353); that to show good
cause "the defendant must
at least furnish an explanation of his
default sufficiently full to enable the Court to understand how it
really came about and
to assess his conduct and motives".
[26] In
my view the explanation advanced by the applicant for the delay in
bringing the application, and the circumstances resulting
in the
granting of the summary judgment against him, needs to be measured
against the presence or otherwise of a bona fide defence,
for me to
decide whether or not to exercise my discretion and condone the delay
and accept the explanation.
16
[27] It
is generally stated that a weak explanation can be off set by a
strong presence of a bona fide defence. The defence need
not be set
out in full detail and be proven on the standard as is required
during trial, but it would suffice if a prima facie
defence is made,
if proven during trial would succeed, vide Sanderson Technitool (Pty)
Ltd v Intermenua (Pty) Ltd;
17
Standard Bank of SA Limited v EL-Naddaf and Another.
18
[28] It
is submitted on behalf of the applicant that the respondent has
failed to comply with the PIE in that the relevant municipality
had
not been joined when the application for his eviction was brought.
For this submission, reliance is made on the matter of The
Occupiers
of Shorts Retreat v Daisy Dear Investments.
19
[29] On
behalf of the respondents it is contended that because the applicant
uses the relevant land for commercial farming, PIE
does not apply. It
is further contended that in the event I find that PIE does apply,
this is not a defence for purposes of an
application for rescission,
but a procedural related aspect. It is further contended as an
alternative that, in the event I find
that PIE does apply but
Extension of Security of Tenure Act 62 of 1997 (ESTA) does. Further
it is further contended that should
I find that PIE applies, this
does not afford applicant with a defence to the merits, for purposes
of a rescission application.
It if further contended that should find
that PIE does apply, such application should be restricted to only
the land where the
applicant has shown that he resides thereon and
that in respect of the other land, I should find that PIE does not
apply and the
applicant should not be permitted to continue with his
commercial farming. It is further contended that there is a dispute
of fact
as to whether the applicant resides on the property and that
therefore; on the application of the Plascon-Evans rule
20
the application should be dismissed.
[30] It
brooks no argument that PIE is mandatory, vide The Occupiers of
Shorts Retreat v Daisy Dear Investments (supra) et P.E Municipality
v
Various Occupiers
21
In Ndlovu v Ngcobo
22
it was decided that the onus rest on the owner to show that the right
of the occupier, in the case of an occupier of more than
6 months, to
occupy the property has lapsed. He must also show that he served on
the relevant municipality in terms of s7 of the
Act. Vide also the
other cases therein cited.
[31] In
Cashbuild (South Africa) Pty v Scott and Others
23
Poswa J dealt with the right to housing and the protection of this
right and the legislative imperatives on the State provide by
s25 and
the s26 of the Bill of Rights. Poswa J further pointed out, correctly
so, in my view, that the Legislature through s26
wanted to ensure
that the right to housing was made meaningful. Masipa J, in the Blue
Moonlight Properties case (supra),
24
Moonlight Properties v Occupiers of Saratoga Ave.
25
[32] It
might be so that PIE, in casu raises only a procedural issue as it is
contended on behalf of the respondent. The eviction
of the applicant
impacts on the right to property, the right to housing, which rights
are constitutionally enshrined. Further more,
the applicant avers in
his replying affidavit that his brother, Johannes, lives in
Bellville, Stand 290 Block 12. which is his
home, and his mother
lives on the land opposite to his brother's home and that he and his
wife and children live on the property,
from which he is sought to be
evicted. It can further be accepted that all the aforesaid people
have been residing on the respective
places for more than six months,
and that therefore PIE is applicable. In the light of the Cashbuild
(South Africa) Pty v Scott
and Others and Blue Moonlight Properties
case (supra),
26
in my view, it is imperative that before eviction can be granted,
even the procedural aspects must be complied with. I am of the
view
that the defence of PIE raised by the applicant, for purposes of
granting rescission, is a bona fide and good defence. I am
consequently of the view that in the exercise of my discretion, the
explanation proffered by the applicant for the granting of
the
summary judgment in his absence, the delay in bring the application
are satisfactory and coupled with the defence herein mentioned,
justify the granting of condonation and the rescission, as I intend
to do herein below.
[33] In
casu, the applicant has raised various other defences, inter alia,
that he purchased the property from one Lizamore and
only in 1992 was
a deed of sale entered between himself and Lizamore,
27
and that when the respondent purchased the property from Lizamore, it
was and or its representatives were aware of the existing
contract
between the applicant and Lizamore
28
and that therefore the applicant is entitled to seek the setting
aside of the transfer of the property in to the name of the
respondent
and have the property registered in applicant's name.
29
[34] I
have been referred to the matter of Bowring NO v Vrededorp Properties
CC and Another
30
where it is stated that the first purchaser of land is entitled to
claim transfer of property directly from subsequent purchaser
who
acquired the property with the knowledge of the first sale. This
defence raised by the applicant, in my view, has good prospects
of
success.
31
In my view, the applicant has established a prima facie and bona fide
defence. In the result I am of the view that the rescission
should be
granted.
[35] The
respondent has raised a conditional counter claim, that in the event
I grant rescission, I should interdict the applicant
from continuing
to conducting commercial farming on the property pending finalization
of the action. This counterclaim is premised
on the fact that the
relevant property is now registered in the name of the respondent and
that the applicant as a retentor over
the property has only the right
to retain the property and not for purposes of exercising his lien
and for purposes of holding
security and not to utilise the property
for any other purpose. From this counterclaim sought, it can be
accepted that the respondent
concedes that the applicant is
conducting commercial business on the farm.
32
[36] In
my view, it is not only the applicant's right to lien that is
involved, but also his constitutionally enshrined rights,
inter alia,
in terms in terms of s22 to conduct business and trade, in terms of
s25 to use and exploit the land in issue, vide
Reddy v Siemens
Telecommunications (Pty) Ltd.
33
Not only are these aforesaid rights involved but his right to dignity
also. Through the exercise of his right to business and trade,
the
exploiting of the land through farming, the applicant, I assume, will
eek a meaningful living through which his right to dignity
will be
realised.
[37] In
my view, what the respondent seeks in his counterclaim is to limit,
inter alia, the applicant's fundamental rights, to earn
a living,
which rights imbue him with dignity. Where there is a tension between
the applicant's fundamental rights and the respondent's
common law
right, I need to make a value judgment.
34
In my view, where the tension of these rights arise in circumstances
where there is a dispute over the relevant land, as in casu,
the
singular right of the respondent must yield to the fundamental rights
of the applicant.
35
In the result I am disinclined to grant the respondent the restrain
interdict, pending the finalization of the main action and
I shall
therefore have to dismiss this counterclaim.
[38] With
regard to costs the applicant prays that the costs of this
application should be costs in the cause. The respondent in
his
counterclaim also sought that the costs should be reserved to be
determined in the main trail. Although the applicant is the
successful party in both the application for rescission and the
counterclaim, he would be entitled to costs on the principle that
the
costs follow the event. However, since the parties are seemingly ad
idem that the costs should be costs in the vent, I shall
make such an
order as to costs.
[39] It
needs mention, however, that both parties employed the services of
senior counsel. In my view, having regard to the issues
raised in the
matter, the parties were justified in employing the services of
senior counsel. I mention this so that when the costs
are determined
in the main matter, there would be no dispute in regard to this
aspect.
[40] In
the result I make the following order:
1. That the summary
judgment granted by Ledwaba J on 23 June 2008 is rescinded;
2. That both the costs of
this application and the costs of the conditional counterclaim shall
be costs in the cause.
N .M.
MAVUNDLA
JUDGE OF
THE COURT
HEARD ON
THE : 01/09/09
DATE OF JUDGEMENT : 23
/10/2009
APPLICANT'S ATT :
SAMBO-MLAHLEKI ATTORNEYS
APPLICANT'S ADV : S K
HASSIM
RESPONDENTS' ATT : ROOTH
WESSELS MALULEKE ATTYORNEYS
RESPONDETS' ADV : MR. F.H
TERBLANCHE SC
1
Rule 31(2)(a) of the Uniform Rules of the High Court.
2
Rule 31(2)(a) of the Uniform Rules of the High Court.
3
Promedia Drukkers & Uitgewers (EDMS) Bpk v Kaimowitz and Others
1996 (4) SA 411
at 417J
4
2003 (6) SA 1
(SCA) at 7F-8G the Supreme Court of Appeal at page 9
para[11].
5
1985 (2) SA 746
(AD) at 765D-E.
6
At para [12] (supra).
7
Annexure E2. is the letter of Seabi dated 11 July 2008. In the said
letter addressed to the applicant's present attorneys of
record, it
is stated that "On 28 May 2008 after receiving the summary
judgment application Seabi telephoned the applicant
advising him of
the summary judgment application.
8
Vide paginated page 15 para4.20, namely R20 000; R2500;
R1500=R2400.00.
9
Vide paginated page 19 paragraph 4.26 of the founding affidavit of
the applicant.
10
1074 (2) SA 84
(AD) at
92 F.
11
1979 (1) SA 681
(A.D.) at 685 F-G.
12
1947 (4) SA 511
(A.D.) at p519:Tindall. J.A., said:
"It seems to
me undesirable to attempt to frame a comprehensive test as to the
effect of an attorney's negligence on his
client's prospects of
obtaining relief under sub-rule (2), or to lay down that a certain
degree of negligence will debar the
client and another degree will
not. It is preferable to say that the court will consider all the
circumstances of a particular
case in deciding whether the
applicant has shown something which justifies the court in holding
in the exercise of its wide
discretion that sufficient cause for
granting relief has been shown.".
13
Vide paginated page 20 of the founding affidavit.
14
1965 (2) SA 649
(TPD) at 651C.
15
1954 (2) SA 345
(AD).
16
Colyn v Tiger Food Industries Ltd/ t/a Meadow Feed Mills (Cape)
(supra) at 7F-8G; vide Rose and Another v Alpha Secretaries Ltd
(supra).
17
1980 (4) SA 573
(W) at 575H-576A.
18
1999(4) SA 779 (W) at 784.
19
(9255/2008)
[2009] ZASCA 8
- (3 July 2009).
20
Plasco-Evans Paints Ltd v Van Riebeeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) ; Reddy v Siemens
2007 (2) SA 486
(SCA)
21
[2004] ZACC 7
;
2005 (1) SA 217(CC)
par. 4.5.
22
2003 (1) SA 113
(SCA).
23
2007 (1) SA 332
(TPD) at 340 para [28]-[32].
24
Vide page 480 paragraph [37]- [38] and page 480E et paragraph [51].
25
[2008] ZAGPHC 275
;
2009 (1) SA 470
(WLD) at 478G where Masipa J stated that:
"[40] Of
significance also is that the occupiers are relatively settled in
that they have made the property their home.
A court generally
should be reluctant to grant an eviction order against relatively
settled occupiers unless it is satisfied
that a reasonable
alternative is available, even if only as an interim measure
pending ultimate access to housing in the formal
housing programme
(See Port Elizabeth Municipality v Various Occupiers."
26
Vide page 480 paragraph [37]- [38] and page 480E et paragraph [51].
27
Paginated page 30 paragraph 9.4
28
Paginated page 35 paragraph 9.13 etc.
29
Paginated page 47 paragraph 14.
30
2007 (5) SA 391
(SCA) at 391 F-G.
31
Vide Cussons en Andere v Kroon
2001 (4) SA 833
(CC) at 839C-H.
32
At paginated page 214 under para 49.2 the respondent states inter
alia: 'Applicant must be however be evicted immediately, and
his
business activities and farming operations terminated."
33
2007 (4) SA 486
(SCA) at 497 A-B.
34
vide Reddy case (supra) at 496 para [15].
35
Vide Silberberg and Schoeman's The Law of Property, 5th Edition at
page 582.