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[2024] ZAKZPHC 77
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David and Another v Maharaj (4910/2021P) [2024] ZAKZPHC 77 (5 September 2024)
Latest amended version 6
September 2024.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 4910/2021P
In
the matter between:-
COLIN
JOSEPH DAVID
FIRST
APPELLANT
KEVIN
PAUL DAVID
SECOND
APPLICANT
and
PRECHAND
SEVASANKAR MAHARAJ
RESPONDENT
ORDER
1.
The order granted by default on 11 August 2023 under case number
4910/2021P is rescinded.
2.
The applicants are directed to pay the respondent’s costs of
this application, jointly and
severally, the one paying the other to
be absolved on a scale as between attorney and client.
JUDGMENT
R.
Singh, AJ
Introduction
[1]
This is an opposed application for rescission of an order granted by
default against the applicants
on11 August 2023.
[2]
The said order struck out the applicants’ claim and defence to
the respondent’s claim
in reconvention. Judgment was also
granted against the applicants (as plaintiffs in the action) in
respect of the respondent’s
claim in reconvention in the sum of
R1 350 875, 97 together with interest and costs.
[3]
The order was granted in the absence of the applicants. This
application was premised in the founding
affidavit on the provisions
of Uniform Rule 42(1)(a), alternatively Rule 31(2)(b), further
alternatively the common law.
The
Facts
[4]
The following facts are common cause:
a. The applicants sued
the respondent for outstanding rental which they alleged was due
arising from a verbal agreement of lease
concluded with the
respondent.
b. The respondent denied
the existence of the lease agreement or that any monies were due to
the applicants. He delivered a claim
in reconvention wherein he
alleged that in terms of a loan agreement with the applicants, he
lent and advanced monies to them.
He further alleged that he entered
into two purchase and sale agreements with them in terms of which he
sold certain motor vehicles
to them. He alleged that the applicants
defaulted with payment of their loan obligations and instalments in
terms of the purchase
and sale agreements.
c. The applicants
delivered a plea to the claim in reconvention and denied Indebtedness
to the respondent. The applicants alleged
that they had fulfilled
payment of their obligations to the respondent.
d. Following the close of
pleadings, the applicants’ erstwhile legal representative
withdrew. The respondent applied for a
trial date. By then, both
parties had delivered their discovery affidavits.
e. The respondent served
a notice in terms of Uniform Rule 35(6) on the applicants to which
they failed to respond. Pursuant
thereto, the respondent
brought an application to compel production of the documents referred
to in the notice. This application
was served personally on both
applicants. They did not oppose the application nor did they appear
at court. The order was granted
by default on 22 May 2023. (the May
2023 order)
f. When the 22 May
2023 order was served on the applicants, they alleged that they noted
that they were reflected as the applicants
in the headings of the
order. The order called upon the respondents to produce the documents
listed in the order. The applicants
alleged that they thought that
the entire order was an error as they have not launched any
application. On 5 July 2023, they wrote
to the respondent’s
attorney enquiring about the May 2023 order. There was no response to
this email. The said email appears
to have been sent several times to
the respondent’s attorney.
g. The applicants
were then served with an application to strike out their claim and
defence to the claim in reconvention
for failing to comply with the
22 May 2023 order (the strike out application). The strike out
application was set down for 26 July
2023. The applicants delivered a
notice of intention to oppose and on 26 July 2023 and the matter was
adjourned to 11 August 2023
for the applicants to deliver their
answering affidavit. The applicants’ did not deliver an
answering affidavit by 11 August
2023 nor were they present at court.
The order was granted by default.
The
Issues
[5]
The issues to be decided are:-
a. whether the applicants
are entitled to an order rescinding the order granted on 11 August
2023;
b. who ought to pay the
costs of the present application.
The
parties’ submissions
[6]
Mr Temlett who appeared for the applicants submitted that the 22 May
2023 order was defective
due to the error in the citation of the
parties in the headings. He submitted that it is trite that once an
irregularity has occurred,
the court need look no further and rescind
the order. He relied on the provisions of Uniform Rule 42(1)(a) and
submitted that
it was not necessary for the applicants to show
“good cause” once it was established that the 22 May 2023
order was
irregular. He did not place reliance on Uniform Rule
31(2)(b) or the common law. Mr Temlett argued that had the court been
aware
that the 22 May 2023 order which was served on the applicants
was defective, it would not have granted the order on 11 August 2023.
The applicants sought the costs of the application on a scale as
between attorney and client.
[7]
Mr Naidoo SC who appeared on behalf of the respondent submitted that
the applicants were opportunistic
in raising the defect in citation
and that the order had to be looked at in context. He relied on
Natal
Joint Municipal Pension Fund vs Endumeni
Municipality
[1]
where it was stated that
a sensible meaning is preferred to one that leads to unbusiness like
results or undermined the purpose
of a document. Mr Naidoo SC further
submitted that the application was an abuse of the process of court
and that the outcome of
the trial eventually is a foregone conclusion
given that the applicants despite numerous opportunities were unable
to produce the
proof that they had made payment to the respondent. He
sought the costs of the application on a scale as between attorney
and client.
The
Law
[8]
In the matter of
Rossitter
& others vs Nedbank Ltd
[2]
,
the Supreme Court of Appeal held that ‘
a
judgment is erroneously granted if there existed at the time of its
issue a fact which the court was unaware of, which would have
precluded the granting of the judgment if the court was aware of it.’
It follows that Rule 42 empowers a court to rescind
an order or
judgment if the applicant establishes jurisdictional facts in order
for the court to exercise its discretion to set
aside the order. If
the jurisdictional facts are not established, the enquiry as to
whether an order must be rescinded ceases at
this point. In
view of this, it is not necessary for a party to show “good
cause” under Rule 42(1)(a)
[3]
.
Application of the
facts to the law
[9]
Ex facie
the 22 May 2023 order, it is evident that the names
of the parties have been transposed, namely the applicants in the
present application
are cited as the applicants in the said order
and the respondent in this application is cited as the respondent in
the order.
It is noteworthy that the applicants at the time the order
was served on them were unrepresented. They did make attempts to
ascertain
what the 22 May 2023 order was all about by forwarding
e-mails to the respondent’s attorney. No response was furnished
by
the respondent’s attorney in this regard. Instead, the
respondent’s attorney proceeded to bring the strike out
application
which served before the court on 11 August 2023. Inasmuch
as it is clear that the draft order that was sought on 22 May 2023
was
correct, it would appear that the incorrect citations of the
order occurred when the order was typed at court. I am of the view
that the respondent ought to have taken steps to respond to the
applicants’ email and ensure that the 22 May 2023 order was
typed to correctly reflect the details of the parties. This would
have been a simple exercise. I am therefore satisfied that the
applicants have met the requirements of Rule 42(1)(a) and that they
are entitled to the order of 11 August 2023 being set aside.
Costs
of the application
[10]
Generally costs follow the result and the applicants ought to be
entitled to the costs of this application
because they have succeeded
on the merits.
In casu
however, I am not satisfied that the
applicants are entitled to the costs of this application on the basis
that once this application
was issued, the respondent indicated that
he was willing to consent to the relief being granted provided the
applicants furnished
proof of payment which they rely on in the
action. The applicants did not accept this offer nor did they set
this application down
for hearing. The respondent had to take it upon
himself to set the matter down. It was unnecessary for this matter to
come before
this court as an opposed motion when the applicants could
have acceded to the offer by the respondent. In the
circumstances,
the applicants must bear the costs of this application
on a scale as between attorney and client.
Conclusion
[11]
In the result, I make the following order:
a.
The order granted by default by on 11 August 2023 under case number
4910/2021P is rescinded.
b.
The applicants are directed to pay the respondent’s costs of
this application, jointly
and severally, the one paying the other to
be absolved on a scale as between attorney and client.
R SINGH, AJ
Date
of hearing
: 29 August 2024
Date
of judgment
: 05 September 2024
APPEARANCES
For
Applicants:
Mr
J.W. Temlett
Instructed
by:
Carlos
Miranda Attorney
273
Prince Alfred Street
Pietermaritzburg
3201
Tel:
033 345 7451
Email:
cmiranda@iafrica.com
For
Respondent:
Mr
V.M. Naidoo SC
Instructed
by :
Grant
& Swanepoel Attorney Inc
Suite
1, The Mews
Redlands
Estate
George
MacFarlane Lane
Pietermaritzburg
Tel:
033 342 0375
Email:
reial@gsalaw.co.za
[1]
2012
(4) SA 593
(SCA), para 18
[2]
(96/2014)
[2015] ZASCA 196
(1 December 2015), para 16
[3]
National Pride Trading 452 (Pty) Ltd vs Media 24 Limited
2010 (6) SA
587
(ECP) at 597I-598B