Standard Bank of South Africa v Kara and Another (527/2008) [2008] ZAFSHC 48 (19 June 2008)

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[2008] ZAFSHC 48
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Standard Bank of South Africa v Kara and Another (527/2008) [2008] ZAFSHC 48 (19 June 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 527/2008
In the matter of:
THE STANDARD BANK
OF SOUTH AFRICA
Respondent
and
AZZIZ KARA
1
st
Applicant
CERLEST LUCAL KARA
2
nd
Respondent
JUDGEMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
8 MAY 2008
_____________________________________________________
DELIVERED
ON:
19 JUNE 2008
_____________________________________________________
[1] On
the 2 November 2007 judgment was granted in this court against the
applicants in favour of the respondent for payment of the
sum of R515
632,90, interest and costs on the attorney and own client scale
together with a further order declaring the applicant’s
immovable
property situated in the Heilbron district, Free State Province,
executable.
The judgment was granted
pursuant to applicant’s failure to repay monies loaned and advanced
to them by the respondent and secured
by a mortgage bond registered
in its favour over applicant’s said immovable property.
[2] According
to the applicants service of the summons in that matter was effected
at their chosen
domicilium
citandi et executandi
outside the jurisdiction of this court and outside the Free State
Province, on Saturday 6 October 2007. The applicants contend that,
according to their calculation the time for entering an appearance to
defend would have expired on the 6 November 2007 being 21 court
days
from the date of service of the summons. This calculation clearly
excludes weekends, Sundays and Public Holidays. The applicants’
reckon the period of 21 days to include only court days and not
calendar days. On this calculation appearance to defend was entered
timeously on the 5
November
2007. They contend therefore that judgment by default was
erroneously sought and erroneously granted in their absence on
the 2
November 2007 and have bought this application for rescission of that
judgment in terms of the provisions of Rule 42(1)(a)
of the Uniform
Rules of this court.
[3] Although
the applicants do not rely on the provisions of Rule 31 or the common
law they have nevertheless deemed it prudent to
mention in their
application that no time was lost once they became aware of the
judgment on the 15 November 2007 in taking the necessary
steps to
lodge this application for rescission. Accordingly they disclaim any
charge of wilful default on their part in delaying
in the bringing of
this application which was formally lodged on the 4 February 2008.
There is in any event ample authority for
the view (this has been
conceded by the respondents) that since the applicant’s do not rely
on the provisions of Rule 31(2)(b)
or the common law no onus rests
upon them to show good cause. Once they have proved that the
judgment was granted as a result of
an error in the calculation of
the
dies
induciae
they
are entitled to rescission of that judgment.
See:
HARDROAD
(PTY) LTD v ORIBI MOTORS (PTY) LTD
1977 (2) SA 576
(W) at 578 G.
TSHABALALA
v PEER
1979 (4) SA 27
(T) at 30 D.
TOPOL
v L S GROUP MANAGEMENT SERVICES (PTY) LTD
1988 (1) SA 639
(W) at 650 D – J.
[4] The respondents’
contend that the
dies
induciae
of 21 days refers to calendar days only in line with the provisions
of section 4 of the Interpretation Act, No. 33 of 1957, and that
the
period for entry of appearance to defend thus expired on the 29
October 2007. In bringing this application for rescission three
months after judgment was granted, respondents contend further that
the applicants have delayed unnecessarily and therefore this
court
should find that the application was not brought within a reasonable
time and on that ground alone dismiss the application.
[5] The issue before me
is thus one of law and revolves around the correct interpretation to
be accorded to the calculation of the
dies
induciae
referred to in Rule 19 of the Uniform Rules of Court. Rule 19(1)
reads as follows:
“
Subject to the provisions of
section 27 of the Act, the defendant in every civil action shall be
allowed ten days after service of
summons on him within which to
deliver a notice of intention to defend, either personally or through
his attorney: Provided that
the days between 16 December and 15
January, both inclusive, shall not be counted in the time allowed
within which to deliver a notice
of intention to defend.”
Section
27 reads as follows:
“
The
time allowed for entering an appearance to a civil summons served
outside the area of jurisdiction of the court in which it was
issued
shall be not less than –
twenty-one days if the summons is to
be served at a place more than one hundred miles from the court out
of which it was issued;
and
fourteen days in any other case.”
A “court day” is
defined in the Rules as follows:
“
A court day shall mean any day
other than a Saturday, Sunday or Public Holiday, and only court days
shall be included in the computation
of any time expressed in days
prescribed by these rules or fixed by any order of court;”
It has been settled law
since
ROSSLEE
v ROSSLEE
1971 (4) SA 48
(O) at 50 B that the definition of court day in Rule 1
applies only to the computation of periods of time prescribed in the
Rules
and not to the periods prescribed in section 27 of the Supreme
Court Act, No. 59 of 1959. Accordlingly it has been held since that
the computation of periods prescribed in section 27 was dictated by
the provisions of section 4 of the Interpretation Act, No. 33
of
1957. This judgment has found general approval in other
jurisdictions. See
MOOI
RIVER VALLEY SEED POTATO GROWERS’ ASSOCIATION v STEYN
1975 (3) SA 642
(N) at 647;
VISSER
v VORSTER
1986 (2) SA 598
(NC) at 601;
ROSSOUW
v PRINSLOO v POTGIETER
1984 (2) SA 603
(T).
Section
4 of the Interpretation Act provides as follows:
“
When any particular number of days
is prescribed for the doing of any act, or for any other purpose, the
same shall be reckoned exclusively
of the first and inclusively of
the last day, unless the last day happens to fall on a Sunday or on
any public holiday, in which
case the time shall be reckoned
exclusively of the first day and exclusively also of every such
Sunday or public holiday.”
It was common cause that
the sheriff was fully within his rights to serve the summons in this
matter on Saturday the 6 October 2007
in accordance with the
provisions of Rule 4(1)(c) which provides as follows:
“
No service of any civil summons, or
order or notice and no proceeding or act required in any civil
action, except the issue or execution
of a warrant of arrest, shall
be validly effected on a Sunday unless the Court or a Judge otherwise
directs.”
[6] The respondents
accordingly contend that the period of 21 days which had to be
calculated from Sunday the 7 October 2007 expired
on Monday the 29
October 2007 in accordance with the provisions of section 4 of the
Interpretation Act 1933. They contend further
that the request for
judgment by default was filed with the Registrar on the 21
October
2007 that is two days after the
dies
induciae
expired
and that judgment was rightly granted by default on the 2 November
2007 there being no entry of appearance to defend in that
time. The
respondents therefore argue that the applicants have not shown that
the judgment was erroneously sought or granted.
[7] The applicants
contend that, in the context of the equality clause in section 9, the
right to just Administrative Action contained
in section 33 and the
right to have access to the courts, contained in section 34 of the
Bill of Rights, this court should find that
their interpretation of
the
dies
induciae
excludes Public Holidays, Sundays and weekends and refers only to
court days and not to calendar days. It was argued on behalf of
the
applicants that such an interpretation is more in line with the
legislature’s intention to accord to every citizen the right
to be
treated equally before the law, the right to be entitled to equal
protection by and before the law and the right to have equal
and
unfettered access to the courts.
Mr. Snyman, on behalf of
the applicants, invited me to make the finding that, having regard to
the equality provisions in the Bill
of Rights, to hold that persons
residing within the courts jurisdiction are subject to court days
whilst others outside its jurisdiction
are subject to ordinary days
is discriminatory. He argued that such a distinction triggers a
failure to grant equal protection and
benefit to a particular class
of litigant, namely those residing outside the court’s
jurisdiction. He submitted that not having
a uniform computation of
time for the entry of appearance for all litigants has actively
disadvantaged the applicants and that if
there was to be a
computation which provided for the
dies
to be
calculated on the basis of only court days, that is excluding
weekends, Public Holidays and Sundays, it would embrace the concept
of equality of litigants before the law. Such an interpretation he
argues would be good in law and would have the effect that the
judgment sought by the respondent and granted to the respondent on 2
November 2007 was erroneously and prematurely granted. He has
urged
me to disregard case authority decided prior to the inception of our
constitutional democracy, more particularly prior to the
coming into
operation of the Constitution of the Republic of South Africa Act,
1996 (Act 108/1996) on the grounds that these cases
gave no
consideration to the equality of litigants before the court and that
accordingly the interpretation of the
dies
induciae
,
in so far as it was dealt with in those cases can no longer be
regarded as good in law.
[8] The question which
arises therefore is whether the distinction in the type of
dies
provided for in the Rules and in the Supreme Court Act of 1959
discriminates unfairly as between litigants depending on whether they
are
incolae
or
peregrini
to the court’s jurisdiction. I fail to see how a provision in the
Supreme Court Act 1959 which affords a
peregrinus
litigant
more than twice the number of days it affords to
incolae
of the court to enter appearance to defend can on that account alone
be discriminatory. On its own case the applicants have failed
to
show this. I refer to the examples quoted in the applicant’s heads
of argument:
“
21.1 if Summons was served on 18
April 2008 and ten ordinary court days were allowed, the dies would
expire on 8 May 2008 for an ordinary
litigant (weekends and holidays
excluded.)
21.2 if
Summons was served on 18 April 2008 and twenty one ordinary days were
allowed, for a litigant living one hundred kilometres
away from the
court and outside its jurisdiction, the dies would expire on 8 May
2008.
21.3 if
Summons was served on 18 April 2008 and fourteen ordinary days were
allowed, in all other cases (possibly for a litigant living
one
hundred kilometres away from the court but inside its jurisdiction,)
the dies would expire on 28 April 2008.”
In my view these
examples admirably and unambiguously demonstrate the legislature’s
commitment to the concept of equal treatment
of all litigants before
the law when enacting the provisions of section 27 of the Supreme
Court Act 1959. It was at no stage the
case of the applicants that
they have been unfairly and unequally treated. Indeed it was always
and only the case of the applicants
that they laboured
under
the mistaken belief that they had 21 court days in which to enter
appearance to defend and that entry of appearance had been
done
timeously, according to their calculations.
[9] In the circumstances
I am unpersuaded that the judgement was erroneously sought and
erroneously granted and the application is
dismissed with costs.
_____________
S. EBRAHIM, J
On
behalf of applicant: Adv. C. Snyman
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of respondents: Adv. J. P. Daffue
Instructed
by:
Matsepes
Incorporated
BLOEMFONTEIN
/em