2
ALSISCAN (PTY) LTD FIRST DEFENDANT
IAN ALEXANDER PACE N.O. SECOND DEFENDANT
MARTHA JANSE VAN RENSBURG THIRD DEFENDANT
_________________________________________________________________
J U D G M E N T
_________________________________________________________________
RATSHIBVUMO DJP:
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand-down is deemed to be
12H00 on 27 December 2024.
[1] Introduction.
This is an application for the rescission of judgment that was granted against
the Applicant on 05 December 2022, in favour of the Respondent (Plaintiff in
the main action), under the same case number as this application. On that date,
default judgment was granted against Alsiscan (Pty) Ltd, trading as Saverite
Machado (first defendant in the main action – the first defendant ), Ian
Alexander Pace N.O. (in his capaci ty as Executor of the deceased’s estate of
the Applicant’s deceased’s husband) and the Applicant. The Applicant and her
deceased husband had signed deeds o f suretyships in respect of the first
defendant’s debt. The default judgment is in the amount of R1 105 171.23, with
interest charged by ABSA Bank Limited, plus 2.5% per annum and costs; to
3
be paid jointly and severally, in solidium , the one paying, the other to be
absolved. The Applicant was involved because she and her deceased husband
had signed deeds of suretyships in respect of the first defendant’s debt.
[2] The application is premised on Rule 31(2)(b) of the Uniform Rules. Heads of
argument prepared for the Applicant suggest s though that the application is
also based on common law. Rule 31(2)(b) provides,
“[A] defendant may within 20 days after acquiring knowledge of such judgment apply
to court upon notice to the plaintiff to set aside such judgment and the court may, upon
good cause shown, set aside the default judgment on such terms as it deems fit.”
[3] It is trite that in showing good cause, an applicant for rescission of judgment
must not only show absence of wilful default, but reasonable prospects of
success in the main action . As for absence of wilful default, the Applicant
asserts that she was unaware of the judgment as it was granted in her absence.
At the time the application was launched, she did not know the date, place and
time of service of the summons. Although she requested these details from the
Respondent several times, it refused to provide her with a copy of the return of
service. When it was finally disclosed as an annexure to the Respondent’s
answering affidavit, it turned out that summons was served at her erstwhile
residential address which she had not been occupying after she relocated to
Australia in August 2020 following the death of her husband. She avers that
had she received the summons; she would have served a notice to defend as
she has bona fide defences against the claims lodged against her in the main
action.
[4] Bona fide defence.
In this application, several defences were raised against the Respondent’s claim
which were presented as bona fide defence in an attempt to show good cause.
4
These can be summarised as follows: First, the amount claimed by the
Respondent is inaccurate for the following reasons.
4.1 Respondent failed to furnish the Applicant with signed proof of
delivery of certain goods ordered by the first defendant . The
Applicant had asked for th is information in an email dated 07 July
20211 and this information was not furnished to her. The Applicant
submits therefore that the amount in respect of the invoices not
accounted for should be subtracted from the total amount claimed as
it should be deemed as goods not delivered to the first defendant.
4.2 Claims were submitted to Shield for credit notes in respect of goods
that were damaged or goods that exceeded their expiry dates. The
Respondent failed to issue credit notes and as a result, the Applicant
submits that the amount claimed should be credited against the first
defendant’s account and thereby subtracted from the total amount
claimed by the Respondent.2
4.3 Certain payments made by the first defendant in respect of its account
held with Shield are not reflect ed in the account presented by the
Respondent. The Applicant attached Annexures FA 5.1 to FA5.9 as
proof of payments totalling R556 000.00. This amount too, submits
the Applicant, should be debited from the total amount claimed
against the first defendant and thereby, against her.
4.4 Further remittances were submitted to Shield indicating the amounts
for claims that were submitted and request for proof of delivery which
1 See Annexure FA2 attached to the founding affidavit on p.25 of the paginated bundle.
2 See Annexure FA3 attached to the founding affidavit on p.26 of the paginated bundle.
5
was never made available.3 The Applicant submits that these amounts
too, should be subtracted from the total figure claimed against the first
defendant.
[5] The s econd bona fide defence raised by the Applicant pertains to the
Respondent’s f ailure to claim the debt due from the first defendant’s
liquidators. This comes after the first defendant was placed under voluntary
liquidation following the death of the Applicant ’s husband who was direct ly
involved in its day-to-day management. The Applicant discovered that the
Respondent’s claim was not included in the liquidator’s liquidation and
distribution account. She now avers that since the deed of suretyship she signed
did not expressly renounce the benefit of excussion, she is therefore entitled to
rely on it.
[6] Lastly, the Applicant claims that Shield, of whom the first defendant was a
member, could not have lawfully sold or merged its business to Massmart
Wholesale (Pty) Ltd as the first defendant was unaware of that merger.
According to the Applicant, Shield had a duty to notify the first defendant of
its intention to merge its business with Massmart Wholesale (Pty) Ltd. Had this
been done, she and/or the first defendant would have raised an objection to
prevent that merger.
[7] The Respondent opposes the application for rescission . It avers that the
Applicant was in wilful default. It further denies that the Applicant has any
bona fide defence to the claim against her. In response to each of the alleged
bona fide defences, the Respondent answered them as follows . The first
defence relating to in accurate amount having been claimed, Anthea Holland,
3 See Annexure FA6 & FA7 attached to the founding affidavit on p.92-94 of the paginated bundle.
6
the deponent to the Respondent’s answering affidavit responded under oath
saying, “I am unable to admit or deny the contents of this paragraph,
accordingly, the Applicant is put to the proof thereof.”4
[8] As for the Applicant’s request for proof of delivery, the Respondent attached
documents to the answering affidavit which it alleges to be proof of delivery
and/or credit notes for the invoices. There are those invoices and/or credit notes
which the Respondent admits to having not credited in favour of the first
defendant. The Respondent however alluded this to the discrepancies on the
side of the first defendant’s records. Some of the invoices are said to be simply
illegible by the Respondent.
[9] In her replying affidavit, the Applicant attributed the illegibility of the invoices
to the fact that the originals were sent to the Respondent while she took pictures
for the sake of record keeping. She denied that invoice S10340 was credited on
the Respondent’s statement, in favour of the first defendant, as alleged. To this,
the Respondent’s allegation was denied. Several other invoices totalling more
than R80 000.00 remain unaccounted for as per replying affidavit.5 While this
dispute over the wrong amount being claimed suffices in my view, to be
regarded as bona fide defence, or raising triable issues, I shall proceed and deal
with the other defences raised, for the sake of completeness.
[10] The second defence raised by the Applicant is the one in which she
laments being prejudiced when the Respondent failed to claim the amount due
by the first defendant from its liquidators . The Respondent referred the court
to a clause in the deed of suretyship in which the parties agreed to,
4 See paragraph 14 of the answering affidavit on p. 143 of the paginated bundle where the deponent was
responding to allegations forming part of Annexure FA3.
5 See paragraph 5.7 of the replying affidavit on p. 290 of the paginated bundle.
7
“[T]he suretyship being bound also as co-principal debtor may not require the creditor
to look to the principal debtor before claiming from him/it, and the creditor may hold
any one or more of the sureties liable for the whole debt.
It shall be in the discretion of the creditor to determine the extent, nature and duration
of the facilities (if any) to be allowed to the debtor.”6
[11] The Respondent asserts that on a proper construction of the clauses above,
the Applicant agreed that she has no right to demand from it to first attempt to
claim from the principal debtor before lodging a claim against her as surety .
The Respondent submits therefore, that the Applicant waived her right to
demand the beneficium ordinis seu excussionis et divisionis . Without further
evidence to the contrary, I find no fault in the Respondent’s interpretation of
the clauses referred to above.
[12] The last defence is the one in which the Applicant challenges the merger
of the Respondent and Shield claiming, it prejudiced her. The Respondent
denies the Applicant’s claims by referring to the agreement on purchase and
sale forming the basis of the claims against the Applicant. The Respondent
thereby disputes that the first defendant was a member of Shield.
[13] It is noteworthy that the summons containing the particulars of claim are
not part of the bundle that served before this court, and same is not in the file.
The agreement forming the basis of the claims and/or particulars of claim do
not appear from the Applicant and Respondent ’s affidavits before the court
although they may have been part of the summons. None of the parties to this
application deemed it necessary for this court to have sight of the same. I am
therefore unable to assess if this claim is a bona fide defence.
6 See clauses 1.3 & 2 of the deed of suretyship attached to the replying affidavit as Annexure AA4 on p. 158 of the
paginated bundle.
8
[14] The importance of an applicant in a rescission of judgment, to show bona
fide defence is not for the court to evaluate and made a finding on it , but to
consider if triable issues have been raised to the extent of raising reasonable
prospects of success, in the main action. Good cause has been interpreted by the
Supreme Court of Appeal in the context of condonation, in Madinda v Minister
of Safety and Security7 to entail,
“a consideration of all of those factors which had a bearing on the fairness of granting
condonation and affecting the proper administration of justice. Relevant factors might
include (i) the prospects of success in the proposed action, (ii) the reasons for the
delay, (iii) the sufficiency of the explanation offered, (iv) the bona fides of the
applicant, and (v) any contribution by other persons or parties to the delay and the
applicant's responsibility therefor.”
[15] The fact that the amount claimed against the Applicant is disputed, and
the Respondent cannot counter that dispute, stating rather that it cannot deny
or confirm the Applicant’s assertion, is good enough to hold that there is a
triable issue. If requested, the court can allow the default judgment to stand but
amount granted therein to be varied, deducting onl y the figures that are in
dispute so the same could be referred for trial, if there would be any surplus
remaining in favour of the Respondent. This was however not requested by any
of the parties, and no clear calculation of the balance was presented to the court
as the undisputed claimed figure.
[16] Wilful default.
The Respondent went to a great length to demonstrate that the Applicant must
have been in wilful default , when she failed to deliver a notice to defend the
action. What remains undisputed, is that the summons was not served on the
Applicant personally. All that the Respondent could do was to create doubt on
whether the summons did not reach her attention. The Respondent ’s basis in
7 2008 (4) SA 312 (SCA). See also Minister of Safety and Security v De Witt 2009 (1) SA 457 (SCA).
9
creating that doubt is the fact that the Applicant knew that her domicillium
citandi as it appears in the deed of suretyship, remained unchanged in the
records held by Shield and/or the Respondent.
[17] The Respondent rightly submit ted that the Applicant had a duty to have
the deed of suretyship amended to reflect her current address , or to notify
Shield and/or Respondent of that change, the moment she relocated from the
known address. The Respondent also referred to the efforts by the Applicant’s
relatives in advising her to notify Shield and/or the Respondent of her change
of address. This was seemingly went unheeded.
[18] The Respondent also argued that it was very unlikely that McGavie &
Associates, did not tell her about the summons. McGavie & Associates are the
attorneys who initially acted as agent for Mr. Pace, who was nominated and
later appointed, an executor of the estate of the Applicant’s deceased’s
husband. This, after the Respondent’s attorneys , on 10 February 2022,
informed McGavie & Associates that they wanted to lodge a claim against the
Applicant’s late husband estate. Mr. Pace later renounced his executorship after
he was served with the summons . The Respondent finds it unfathomable that
McGavie & Associates would not have contacted the Applicant and advised
her of the renunciation of the executorship by Mr. Pace, and about the summons
which appear t o have caused Mr. Pace to renounce his appointment as an
executor in the first place.
[19] This sequence of events is however denied by the Applicant. According
to the Applicant, she indeed learned about the summons from the erstwhile
attorneys acting as agents for Mr. Pace . This was however in January 2023,
while the default judgment had already been handed down in December 2022.
10
At that stage, the time to deliver a notice to defend the action had already
lapsed.
[20] All that one can make from the Respondent’s submissions above is a good
case to support the notion that the Applicant was negligent in not giving a
notification of a change of address to the Respondent. This resulted in her not
receiving the summons personally. Furthermore, without a confirmation from
McGavie & Associates to the effect that they notified her of the summons
against her and the deceased’s estate, and the date of such notification, the court
cannot find as a fact that she was indeed notified as claimed. To suggest that
the Applicant was aware of the summons does not even find support from the
return of service from the Sheriff. The Respondent can therefore only claim
that service of the summons was valid albeit not personal.
[21] The fact t hat service of the summons was valid appears to be common
cause. It is for this reason that the judgment’s validity is not challenged. The
uphill battle for the Respondent is to show that the Applicant was in wilful
default to defend the action, without first proving that she was aware of the
summons’s existence. The obvious way to prove that a party is aware of the
pending action, is through the Sheriff ’s personal service of the summons .
Without this, evidence must be presented before the court to prove that she was
aware of its existence. Unfortunately for the Respondent, more is required than
the assumptions of what may have happened between the Applicant and the
attorneys acting as agents for Mr. Pace. There is therefore no basis to reject the
Applicant’s submission to the effect that she was not in wilful default as she
was not aware of the existence of the summons.
[22] Condonation.
The last aspect to be considered is the condonation for late filing of this
application. As highlighted above, rule 31(2)(b) requires that the application
11
should be brought within 20 days after the applicant became aware of the
default judgment. If one looks at the pace at which the Applicant brought this
application, she seemed to have had no sense of urgency. The application was
so delayed that the Applicant’s counsel in his heads of argument, argued that it
should be considered under common law where there is no time limit to bring
it. Under common law, the Applicant only has to show good cause, which
includes, bringing the application within a reasonable time.8
[23] Whether the application is considered under rule 31(2)(b) or under
common law, the court is bound to consider the explanation for the period that
lapsed before the application for rescission was lodged. This is because the
Applicant brought a condonation for the court to still consider the application
under rule 31(2)(b) even beyond the 20 days period. It is trite that with
condonation, the court can extend the time limits set out in the rules. Everything
boils down to whether there is a reasonable explanation for the delay, which is
one of the aspects to be considered even under common law.
[24] The Applicant took 15 months to bring the application from the time she
became aware of its existence. There is no doubt that the court has to frown at
the Applicant’s display of lack of urgency even after she was made aware of
the time limits by her own legal representative. I am however of a view that
condonation should be allowed or that the explanation should be considered as
demonstrating good cause for the following reasons. I have already indicated
above that the Applicant has a bona fide defence to the claims against her. I am
of a view that even if there is some unexplained delay, the reasonable prospects
of success should compensate for that. In Melane v Santam Insurance Co Ltd9,
Holmes JA said,
8 See Chetty v Law Society, Transvaal 1985 (2) SA 756 at 761C-G.
9 1962 (4) SA 531 (A) at 532C-E.
12
“Among the facts usually relevant are the degree of lateness, the explanation
therefor, the prospects of success, and the importance of the case. Ordinarily these
facts are interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion, save of course that if there
are no prospects of success there would be no point in granting condonation. Any
attempt to formulate a rule of thumb would only serve to harden the arteries of what
should be a flexible discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation may help to compensate for
prospects of success which are not strong. Or the importance of the issue and strong
prospects of success may tend to compensate for a long delay.” [My emphasis].
[25] However, the Applicant has some explanation for her delay. Even though
she learned of the default judgment in January 2023, it was not until August
2023, that she came back into the country. During the same month of January
2023, she requested her uncle to secure the services of the attorneys to help
bring the application for rescission. She also gave a full account o f how the
delay came about which includes her sending documents using Dropbox app
which the attorneys could not open, and a very long delay at the hands of her
attorneys and the counsel that was briefed.
[26] The Respondent is not without a blame in the whole debacle. On more
than one occasion, the Applicant asked, through her attorneys for the
Respondent to furnish her with the Sheriff’s return of service of the summons,
before finalising her founding affidavit. This was not forthcoming and there
was no explanation for not availing it. The first time the Applicant saw the
return of service was when it was attached to the Respondent’s answering
affidavit as an annexure.
[27] The court therefore considers the interests of justice, the amount involved
in the claim, the prejudice that may be suffered by each of the parties if the
judgment is or is not rescinded and the importance of the case to the m, that it
14
INSTRUCTED BY: CLOETE ATTORNEYS
C/O: WDT ATTORNEYS
MBOMBELA
FOR THE RESPONDENT: ADV. TJ LINDHOUT
INSTRUCTED BY: GJERSÖE INCORPORATED
C/O STEGMANNS INC
NELSPRUIT
DATE HEARD: 31 OCTOBER 2024
JUDGMENT DELIVERED: 27 DECEMBER 2024