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2024
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[2024] ZAGPPHC 783
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Zervas v Greeff (Leave to Appeal) (68763/2018) [2024] ZAGPPHC 783 (14 August 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Case
No:
68763/2018
Reportable: No
Of interest to other
Judges: No
Revised: No
SIGNATURE
Date: 14/08/2024
In the matter between:
JAMES OPENSHAW
ZERVAS
Applicant
and
FREDERICK CHRISTOFFEL
GREEFF
Respondent
In re:
FREDERICK CHRISTOFFEL
GREEFF
Plaintiff
SCENIC ROUTE TRADING 502
CC
1
st
Defendant
t/a DEVCO GROUP (IN
LIQUIDATION)
JAMES OPENSHAW
ZERVAS
2
nd
Defendant
JUDGEMENT
– APPLICATION FOR LEAVE TO APPEAL
MOOKI J
1
The applicant seeks leave to appeal the
court’s refusal to rescind a default judgement made against the
applicant on 19 November
2021. The judgement refusing the rescission
was delivered on 31 August 2023.
2
The applicant filed a notice seeking leave
to appeal on 21 September 2023. He did nothing since filing the
notice. It was
left to the respondent to set the matter down
for a hearing.
3
The following are the grounds for the
application. The applicant contends that the court ought to have
found that:
3.1
Judgement was granted in the absence of the applicant.
3.2
There existed facts which, had the court been aware of, would not
have granted default judgement.
Specifically, that default
judgement would not have been granted had the court been aware of the
belated amendment to incorporate
the written deed of suretyship.
3.3
The applicant had a mistaken believe that the respondent was
proceeding only against the first defendant.
3.4
The respondent could not have relied on the written suretyship
agreement, because the amendment was
fraudulent.
3.5
The applicant was not indebted to the respondent
3.6
The respondent had not proved his claim.
3.7
The court ought to have found that default judgement was granted on
hearsay evidence.
3.8
The application was launched within a reasonable time.
3.9
The applicant showed good cause to have the judgement rescinded.
4
The
must be prospects of success, based on a sound rational basis for
saying that there are prospects of success, for a court to
grant
leave to appeal. The applicant has not met the test for the granting
of leave to appeal. There are no prospects of success
and there is no
compelling
reason to grant leave.
[1]
5
I am not persuaded that the court erred in
its finding that judgement was not granted in the absence of the
applicant, or that the
applicant was mistaken that the respondent was
proceeding only against the first defendant. Similarly, I am
not persuaded
that default judgement was granted on hearsay
evidence.
6
The court dealt with the amendment,
including that the applicant was aware of the making of the amendment
and, further, that the
amendment was made in accordance with the
rules. Reliance on the amendment as a ground of appeal is
unsound.
7
The issue of the applicant’s
indebtedness or otherwise to the respondent is addressed in the
court’s findings that the
applicant had not met the
requirements for a rescission. It was unnecessary for the court to
address the issue expressly.
8
The applicant referred the court to a
decision in case number 21846/18 as confirmation that the applicant
showed good cause for
a rescission. It was submitted that the issues
in case number 21846/18 are similar to those before this court and
that this court,
as the court in case number 21846/18, ought to have
determined that the applicant showed good cause.
9
This court determined the application with
reference to issues as presented to this court. The court
cannot make determinations
with reference to findings by another
court.
10
The
applicant contends that the respondent had not proved its claim. That
was because the deponent to the affidavit in support of
default
judgment had no personal knowledge of events in 2015; and further
because there was no evidence, in the default judgment
proceedings,
of amounts lent to the applicant. Default judgement is considered
with reference to a claim as pleaded before court.
The default
judgement was considered on that basis.
11
The
applicant, in the rescission application, averred that he had other
matters, such as those dealing with debt collections, and
that those
matters required his urgent attention before he could attend to the
rescission application. The applicant was aware
of the need for a
rescission application. He formed a view as to which matters,
according to him, were a priority. The requirements
for prosecuting a
matter in court are not premised on when a litigant decides to
prosecute a matter.
12
I
make the following order:
(i)
The application is dismissed.
(ii)
The applicant is ordered to pay costs.
OMPHEMETSE
MOOKI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance
:
On behalf of the
applicant
J C De Beer SC
Instructed by:
E Neethling
Attorneys Inc.
On behalf of the
respondent
N. G. Louw
Instructed by:
Warrener De Agrela &
Associates Inc.
[1]
Ramakatsa and Others v African National Congress and Another
(724/2019)
[2021] ZASCA 31
(31 March 2021), para 10