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[2008] ZAWCHC 126
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Van Eeden and Others v Basson Attorneys (A594/07) [2008] ZAWCHC 126 (1 January 2008)
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO. A594/07
In the matter between:
M I VAN EEDEN
First Appellant
ISODAVID TRUST
Second
Appellant
KOLGANS ESTATE CC
Third Appellant
and
BASSON ATTORNEYS
Respondent
JUDGMENT
Z F JOUBERT AJ
1. The three Appellants appeal against the dismissal by a Magistrate of an
application brought by them for the rescission of a judgment
granted agarnst
them on 26 November 2002 by the Clerk of the Court at Bredasdorp Magistrate's
Court. The judgment dismissing the
rescfsston appiication was handed down by a
Magistrate in Bredasdorp Magistrate's Court on 6 June 2007. The Magistrate
handed down
an ex
tempore
judgment on 6 June 2007 dismissing the
rescission application, and provided his reasons in terms of Rule 51 of Act 32
of 1944 on 16
July 2007.
2. The matter has a strange and somewhat convoluted history. In addition, the
papers contain serious allegations of fraudulent conduct
with allegations that
documents annexed to the affidavits by the parties constitute forgeries. Not
surprisingly, mis has led to factual
disputes, which are not capable of
resolution on the papers as they stand. However, ft is not necessary to resolve
these disputes
for the purposes of the determination of this appeal.
3. In 2002, the Respondent, who is an attorney practising for his own account
in Napier, issued summons against the three Appellants
in the Magistrate's Court
in Bredasdorp. The particulars of claim, which were signed by the Respondent
himself, are far from perfect.
The Second Respondent
(sic)
is stated to
be the First Appellant and one de Lacie in their capacity as trustees of the
Isodavid Trust. Neither the summons nor
the particulars of claim cite them
Nominee Officio.
The Third Defendant is stated to be the First Appellant,
in her capacity
as a member
of the Third Respondent close corporation.
The particulars further aver that the Respondent and the
"verweerdef
(presumably the First Appellant) agreed on the rate of interest to be
charged. It is further alleged that the amount claimed represents
agreed fees
and disbursements, inclusive of interest, for professional services rendered by
the Respondent to
"verweerders"
(presumably all three Appellants). There
is thereafter a paragraph containing the bald averment that the
"verweerders"
(presumably ail three Appellants) are jointly and severally liabEe to the
Respondent for the amount claimed. No averments are made
fn support of the
allegation that the liability of the three Appellants is joint and several.
4. After an appearance to defend had been entered on behalf of the
Appellants, the Respondent saw fit to apply for summary judgment
against all
three Appellants and deposed to an affidavit in support of the application for
summary judgment. This affidavit only
served to further muddy the waters. In
paragraph 3 of the affidavit, the Respondent states the following:
"Die Verweerderes is aan Eiser die bedrag van R50419,60 verskuldig, op
gronde in die dagvaardtng uiteengesit, trouwens, Mev van Eeden
erken dat
Verweerders gesamenttik en afsonderiik, reeds meer aan die Eiser verskuidig is,
ooreenkomstia haar nota gemaak oo Aanhanosei "A" hierbv aanQeheo
, Geen
beswaar word hoegenaamd teen die bedrag verskuldig en aangetoon op die
rekeningstaat, aangeteken nie, en aangesien eerste verweerder
opdragte gee wat
verband hou met tweede en derde verweerders is stegs een rekening ge-open waarop
die dienste geiewer aan die iaasgenoemde
verweerders aangesui word. Daar word
ook geen
beswaar
hierteenoor aangeteken
we.
Die feit dat eerste verweerder namens af die verweerders erken dat die
bedrag aan Aoofikant verskuidig meer is as die bedrag in die
dagvaardtng
verrneid. stei die bedrag in die dagvaardirtg vermeid aeivk aan 'n aeUkwideerde
vordenna. aanaesten die verweerders se
uitdrukTtke erkennina. *r\ afstanddoenina
van 'n versoek
om
taksasie daarsiei
. **
(Own emphasis)
5. In terms of Rule 14(1)(b), if the claim is founded on a liquid document,
a copy of such document may be annexed to the application
for summary judgment.
However, the document annexed as annexure "A" to the Respondent's affidavit is
no more than a statement of
account reflecting a balance carried over of R46
073,25 with a few entries relating to faxes, letters and telephone calls and the
like, and reflecting a balance due in the amount claimed. The
"nota gemaak op
Aanhangsel "A" hierby aangeheg"
referred to in the Respondent's affidavit
reads as follows:
“
Ek saf u besigheid verkoop om so die geld te
delg".
6. This is a far cry from an admission by the First Appellant that the
Appellants are liable jointly and severally to the Respondent
for more than the
amount claimed, as is stated
twice
in the paragraph quoted from the
affidavit, and by no means amounts to a "...
uitdruklike erkenning, *n
afstanddoening van *rt versoek om taksasie ..."
as deposed to on oath by the
Respondent.
7. However, it appears that the application for summary judgment was not
proceeded with, as the First Appellant signed a consent to
judgment in terms of
Section 58 of Act 32 of 1944 on 12 November 2002. In terms of this consent, the
First Appellant
agreed to pay the amount outstanding in monthly
instalments of R500
P
00 as from 30 November 2002. There is no mention
of the Second and Third Appellants in the body of the document, and there is
nothing
in the document to indicate that they consent to judgment.
8. In
her application for rescission, brought on behalf of herself
and the other two Appellants, the First Appellant states that on 26 February
2007, the Sheriff of Bredasdorp served a warrant of execution issued under Case
No. 1614/2006 on her. She immediately contacted her
attorney to ascertain what
judgment had been taken against the Appellants as, according to her, the
Appellants owed the Respondent
no monies. On 28 February 2007, the Appellants'
attorney wrote a letter to the Respondent in this regard, and received no reply.
On 5 March 2007, he attended at Court and drew the file for Case No. 1614/2006
and ascertained that no summons had ever been issued
under this case number, but
that the Respondent had applied for default judgment on the basis of a consent
to judgment in terms of
Rule 58, a copy of which was annexed to the application.
This was however a different consent to judgment to the one signed in 2002
by
the First Appellant This consent to judgment purports to have been signed in
2004, and the first two pages thereof differ from
those of the previous one. The
First Appellant denies ever signing this consent to judgment. She further states
that she receh/ed
no notice whatsoever from the Respondent in regard to this
application for judgment. It is noteworthy that on page 3 of the 2002
consent,
the space for the year is left blank. Otherwise, this page appears to be
identical to the third page of the 2004 consent,
except that the year "2004"
appears thereon in the space which is left blank in the 2002 consent.
9. In paragraph 12 of her founding affidavit in the rescission application,
the First Appellant states the following in this regard:
"Ek net noort aanhangsei & onderteken me en is dit duidelik dat
Respondent die iaaste bfadsy van aanhangsei C uitgehaai net en
by aanhangsel B
gevoeg net As daar na die oorspronklike aanhangsei B gekyk word kan gesien word
dat die pen waarmee B geskryf is
verskil op biadsy 3 van bfadsye 1 en 2. Ek sou
nooit aanhangsel
8
geteken het nie aangesien Appiikant geen gefde aan
Respondent verskuldig is nie
f
gestaaf deur aanhanselD."
The Respondent denies the allegation.
10. During the hearing, the Respondent abandoned the judgment which he
obtained on the basis of the 2004
"consent",
that is to say, the 2006
judgment, and writ of execution accord ingly falls away. However, the Respondent
persisted in his opposition
to the
application for the rescission of the 2002
judgment. In regard to this judgment, the First Appellant states that she signed
2002 consent
to Judgment as the parties had settled the matter on 12 November on
the basis that payments would be made in instalments, although
the Appellants
felt that they were not liable to the Respondent. She states that thereafter the
First Appellant and the Respondent
agreed that the full amount of the alleged
indebtedness wouEd be set off by the Appellant selling Erf 136 Napier (which
apparently
belonged to the Respondent). She states that she sold the property,
and at the same time also referred other transactions to the
Respondent,
including those relating to Erf 288 Napier, Erf 714 and Erf 345 Napier, in
respect of which the Respondent, according
to her, retained commissions which
were due to her. She states that after she had sold Erf 136 and owed the
Respondent nothing further,
he kept behind fiirther commissions and she claims
that he is in fact indebted to her. She further claims that he signed a
document,
which is annexed to her application as annexure
U
D°,
in which he acknowledges that she is not indebted to him. The signature which
appears on this document is remarkably similar
to his, but he denies signing the
document and this is a further dispute which cannot be resolved on the
papers.
11. The Respondent himself avers that the 2006 judgment was sought and
obtained in error as he had apparently lost sight of the fact
that he had
already obtained a Judgment. In an application in terms of Section 63 of the Act
to enable him to execute upon the judgment,
he relies upon an affidavit deposed
to by a member of his staff in which she claims that the relevant file had
inexplicably been
"misfitea".
In view of the ongoing business
relationship between the parties, this is a remarkable state of affairs. It is
further remarkable
that for a period of some t here or four years after judgment
had been obtained, no effort was apparently made by the Respondent
to obtain
payment.
12. It is dear that the 2002 judgment shoufd never have been sought or
granted against the Second and Third Appellants. As far as
t he First Appellant
is concerned, I am of the view that the Magistrate shouid have found that the
First Appellant showed
"good
cause
1
* and that there were good
reasons why the judgment should be rescinded.
13. In my view, on the common cause facts, and leaving aside the factual
disputes which are irresoluble on the papers, there ts no
probable inference
that there is ho
bona fide
defence and that the application for
rescission was not
bona fide.
I am of the opinion that the appeal should
succeed with costs, and that the judgment of the Magistrate should be set aside
and substituted
with an order that the judgment granted in Case No. 917/02 in
the Magistrate's Court in Bredasdorp be set aside.
Z F JOUBERT, A J
Ek stem saam, die
APPEL SLAAG MET KOSTE.
die vonnis toegestaan in die
fahddroshof te Bredasdorp onder saak nommer 917/2002 is tersyde gestel en
vervang met die volgende.
Die
VONNIS TOEGESTAAN IN DAARDiE SAAK
NOMMER IS TERSYDE GESTEL
DESAI, J