SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: A2024- 040877
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
RAYMOND MACK DANIELS Appellant
And
SIMUL ENTERPRISES CC First Respondent
THE SHERIFF, GERMISTON NORTH Second Respondent
JUDGMENT
Noko J (Ntlama Makhanya AJ concurring).
Introduction
2
[1] This is an appeal against the whole judgment and order granted on 1
February 2024 by the Regional Magistrate TD Ntoko, sitting at Germiston
Regional Court . The cour t a quo dismissed an application for rescission with
costs on attorney and client scale. The second responden t is not opposing the
appeal and reference to the respondent in this lis means the first respondent.
Parties
[2] The appellant is Mr Raymond Mack Daniels as the sole member of Alexjay
Catering CC which is trading as Applebite Express CC (registration number
2008/167560/23) and carrying business at 2[ …] C[…] Avenue, E […], Edenvale.
[3] The first respondent is Simul Enterprises CC, a close corporation with its
registered address at [ …] M[…] C[…] Drive, R[…] I[…] P, G[…] P[…], G[…],
Johannesburg.
[4] The second respondent is S heriff, Germiston North cited in his capacity as
the Sheriff of the high Court carrying his business at 2 […] S[…] Street, cnr V […]
Avenue, E […], Johannesburg.
Background [5] The respondent sued out summons with rent interdict on 18 September
2020 against the appellant for the arrear rental in the sum of R211 880.00. The
sheriff simultaneously with service of summons attached assets of the appellant’s
busines s to the value of R 221 888.00. The appellant entered appearance to
defend on 6 October 2021 and was served with notice of bar on 2 2 November
2021 after failing to serve the plea on time. The respondent subsequently served
a notice on intention to amend on 28 April 2023 which was objected to by the
appellant by the appellant on 14 May 2023.
3
[6] The respondent waited for the notice to amend1 to lapse and proceeded to
serve another notice of intention to amend on 7 August 2023 which was followed
by filing amended pages on 24 August 2023 since the appellant did not object
thereto. The respondent then served notice of bar on 22 September 2023 on the
appellant and his attorney. The notice of bar did not elicit any reaction from the
appellant and respondent applied for default judgment on 23 October 2023 which
was granted. A warrant of attachment was issued, and sheriff attached the
appellant’s assets on 3 November 2023 to the value of R2 11 888.002.
[7] The appellant instituted application for the rescission of the judgment on
25 January 2024 under two parts. Part A being an application to stay the
execution of the warrant pending Part B which was the application for rescission
of judgment .
Before court a quo
[8] The appellant instituted application for orders under two parts . Part A
being an application to stay the execution of the warrant pending Part B which
was the application for r escission. The parties agreed to the stay of the warrant of
execution which was made an order of court. In the application for rescission the
appellant contended that the judgment was granted erroneously on a number of
grounds.
[9] The court a quo found that the application falls within the purview of the
provisions of rule 49
3 which provides for the rescission of a judgment at the
instance of a party against whom a judgment was granted in his absence. Such a judgment may be rescinded if the party was not in wilful default and good cause
is found exist .
1 Amending the claimed amount from R239 000.00 to R425 519.45.
2 The appellant’s counsel indicated in the Heads of Argument at para 28 (CL 03 -10) that the value
of the attached goods is R2 21 888.00 but at para 31 (CL 03- 11) stated the amount to be R 211
888.00.
3 Magistrate’s Court Rules.
4
[10] The appellant contended that the judgment was granted erroneously on
the basis that , first, the appellant’s plea dated 15 March 2021was delivered
timeously after receipt of the first notice of bar and as such the request and the
granting of the default judgment was incompetent . Secondly, that the judgment
amount of R425 519,45 was granted in error since the value of the attached
assets in the sum of R 221 880.00 should have been deducted from the total
amount claimed. Thirdly, that the lease agreement was amended and the rental
amount was reduced and the amount sued for was incorrect; fourthly, that the
respondent failed to serve an application for default judgement on the appellant
before lodging same with the court a quo. Lastly, that the judgment amount
granted was in excess of the jurisdiction of the Regional Magistrate Court.
[11] The court a quo found that the appellant failed to prove that a plea was
served to the respondent and/or filed at the court . Further , that the contention
that the value of the attached goods should have been deducted has no basis in fact and law. That there are no merits in arguing that the rental amount has
changed as the agreement contained an entrenchment clause in terms of which
any amendment cannot be effected unless reduced into writing and signed by both parties. The requirement for service of the application for default judgment
applies only in the high court and not in the magistrate court . Lastly , that the
agreement between the parties provides for consent to jurisdiction in terms of
section 45 of the Magistrates’ Court Act .
4 In conclusion, the court a quo held that
there was no good cause shown by the appellant and dismissed the application
for the rescission, with costs , on a scale between attorneys and client . In
addition, the court a quo found that t he admission by the appellant that there is
money owing to the respondent is sufficient to conclude that there is no bona fide
defence.
On appeal
4 Act 32 of 1944 (as amended).
5
[12] The appellant disavowed the argument that the amount claimed was
above the reach of the m agistrate.
[13] The appellant raised several contentions in support of the appeal . First,
the appellant contended that t he default judgment was obtained erroneously as
the applicant al though stated that all document s were filed but there wa s an
affidavit by a candidate attorney who stated that the original documents could not
be traced. In retort , the respondent submitted, correctly, that it is not unusual that
when a party is unable to produce the original documents filed with the court that
an affidavit be submitted with the application for default judgment. This contention is unsustainable.
[14] Secondly, the appellant contended that the value of the goods attached
through the hypothec was R 221 880.00 which amount would have settled the
amount claimed by the respondent. In the premises , argument continued, it was
improper for the respondent to obtain judgment for any higher amount. In retort ,
the respondent submitted that this argument is flawed. The fact that there is
attachment of goods does not imply that the estimate value thereof is cash in the
respondent’s hands . The attachment is just securi ty and would bar any other
creditor to execut e the said property. Further , that t he respondent has an option
after obtaining judgment either to proceed and sell the attached goods or execute
any other way possible including the attachment of the members’ interest in the
CC. This understanding is subject to the proviso that the debtor shall be notified
so that the assets should be freed from the hypothec. In any event , so argument
went, the argument that the value of the attached assets should have been
deducted was not raised, initially , by the appella nt.
[15] Thirdly, th e appellant further contended that the plea was served after the
recei pt of the notice of bar. As such , it was improper for the respondent to obtain
judgment by default. The appellant’s attorneys are, however , unable to provide
6
any evidence that the said plea was served as they have not been able to access
the attorney’s server .
[16] The argument advan ced by the appellant that the plea was deliver ed was
aimed at defeating the contention that there was wilful default on the appellant’s
part. The respondent denies that appellant has served a plea at their offices and
same was also not found in the court file.
[17] In addition, as was set forth in State Capture Commission ,
5 the
Constitutional Court found that “absence” for the purposes of the rule means
being “precluded from participating” in the proceedings.6 Accordingly, if a person
positively elects not to attend, then such a person is not “absent” for the purposes
of the rule. The appellant was served with notice of bar and chose not to
participate in the proceedings , the respondent argued.
[18] Fourthly , that the lease agreement was amended by the parties during
Covid -19 and the court a quo should not have granted the judgment which did
not take into consideration that the agreement was varied. This contention could
not be sustained as it was demonstrated that the agreement has a non- variation
clause. In this regard I find that this argument is unsustainable.
[19] The appellant further sought to disp ute the amounts which were due to the
municipality which challenge was never raised in the initial application before the
magistrate court . This was not properly introduced and cannot be entertained on
appeal.
7
5 Zuma v State Capture Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector Including Organs of State and Others 2021 (11) BCLR 1263 (CC) .
6 Id at paras [60] to [64].
7 See Seedat v S 2017 (1) SACR 141 SCA at para [21], where the court held that : “There should
be a reasonable sufficient explanation, based on allegations which may be true, while the
evidence which it is sought to lead was not let at the trial. There should be a prima facie likelihood
to the truth of the evidence. The evidence should be materially relevant to the outcome of the
trial.” This was a criminal case and was referred as on the basis of parity of reasoning and also
that proper motivation should be advanced if a party seek to introduce new evidence.
7
[20] The respondent , on the other hand, contended that the application for
rescission of judgment required a party to show that he had a good cause. The
good cause requires a clear explanation that the party did not wilfully default and
further , that such a party has a good defence. The appellant alleges that the plea
was served but failed to provide proof that it was indeed delivered. The notice of
bar was served on both the attor ney and the appellant personally and both
elected not to serve a consequential amendment to the plea if indeed the first
plea was served after the first notice of bar .
[21] The respondent contended further that the appellant’s contention that the
respondent i mproperly obtained judgment as the original documents were not
filed is also unsustainable as the respondent’s attorneys filed an affidavit stating
that the originals could not be found.
[22] The appellant further contended that the summons were stale and this
could not be properly substantiated with the relevant applicable l egal principles .
The respondent stated that rule 10 of the Magistrate C ourt rules which provided
for the lapsing of the summons after 12 mon ths has been repealed and th is
contention remain unsustainable. In addition, the Magistrate Court rules unlike
High Court rules do not enjoin a party to serve application for default judgment
after notice of bar was served.
[23] The Court , respondent argued further , should also impose costs on
attorneys and client scale in the appeal as there was no genuine dispute raised or even explanation for the default.
Issues
[24] The issue for determination is whether the appellant has presented a
persuasive case to upset the judgment of the court a quo. That a good case was made out for the rescis sion of judgment in terms of rule 49.
8
Legal prin ciples and analysis.
[25] It is trite that Rule 498 of the Magistrates Court Act enjoins an applicant for
rescission to show good cause for the judgment to be rescinded. I t was stated in
Chetty9 that: “the term good cause (or sufficient case) defies precise of
comprehensive definition, … but it is clear that in principle and in the long -
standing practice our courts two essential elements “sufficient cause” for
rescission of a judgment by default are:
(i) That the party seeking relief must present a reasonable and
acceptable explanation for his default; and
(ii) that on the merits such party has a bona fide defence which, prima
facie , carries some prospects of success.
[26] The above sentiments were echoed by the Constitutional Court in
Barnard,
10 where it was stated that : “This Court recently repeated the well -known
requirements: first, the applicant must give a reasonable and satisfactory explanation for its default; and second, it must show that on the merits it has a
bona fide defence which prima facie carries some prospect of success.” As it
would be shown below , the appellant appears to have fa iled from both fronts.
[27] With regard to the explanation for the default , the appellant’s contention
was that he did not default as a plea had been served but cannot provide any
evidence to support as its IT system were inaccessible. The respondent or its
attorneys or the court did not have a copy. The old Latin maxim “ actio incumbit
8 Rule 49(1) provides that “ A party to proceedings in which a default judgment has been given, or
any person affected by such judgment, may within 20 days after obtaining knowledge of the
judgment serve and file an application to court, on notice to all parties to the proceedings, for a
rescission or variation of the judgment and the court may, upon good cause shown, or if it is
satisfied that there is good reason to do so, rescind or vary the default judgment on such terms as
it deems fit : Provided that 20 days ’ period shall not be applicable to a request for rescission or
variation of judgement brought in terms of subrule (5) or (5A).
9 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 757B – C.
10 Barnard Labuschagne Incorporated v Commissioner, South African Revenue Service and
Another 2022 (5) SA 1 (CC) at para [46]. See also Secretary , Judicial Commission of Inquiry into
Allegations of State Capture v Zuma and Others 2021 (5) SA 327 (CC) at para [71].
9
probatio” (“he who alleges must prove”) finds application. Bar any evidence that
there was no default or explanation for the default then cadit questio.
[28] The highwater mark of the appellant’s defence is that the hypothec
accords the respondent not only the security but also serve as proof that the
estimate value of the attached goods is cash in the respondent’s account. As
such , the said value should have been deducted from the total sum claimed and
judgment should have been ordered for the reduced amount . This argument
reveals creativity and ingenuity on the part of the appellant but cannot be
supported with the trite law or current jurisprudence. The authors of Wille’s
Principles of South African Law state s that: “On attachment the land lord acquires
a real right of security and is entitled to prevent removal of the goods from the
premises and to claim their return if so removed”.
11 The benefit of the attachment
is only to have the assets as security and not for a party become the owner
thereof or value in his pocket.
Conclusion
[29] On the basis of the aforesaid there is no basis to argue that the process to
obtain judgment was irregular as the said amount was not deducted. Equally so,
the argument of hypothec cannot be invoked to lay the basis for the argument
that there is a bona fide defence. This would extend to the second requirement of
the wilful default. The appellant ’s concession s that no processes were delivered,
that nothing was done after the receipt of the second notice of bar and further an
admission before the court a quo that rental applies is a fatal blow to his course.
11 See Bradfield G, Du Bois F, et seq “Willes ’s Principles of South Africa law ” 9th Ed, Juta, 2007,
page 658- 659. See also Kerr AJ The Law of Sale and Lease 2nd edition Lexi s-Nexis -
Butterworths , 1996, at 359 where it was stated that: “ When a lessor issue s ummons in the
Magistrate Court for the rent of any premises he may include in such s ummons a notice
prohibiting any person from removing any of the furniture or other effects thereon which are
subject to [his] hypothec for rent until another order relative thereto has been made by the court.
If he ask s for and obtains in the judgement confirmation of the interdict , it is extended until
execution or further order of the court . An interdict does not in itself give the less or any greater
right over against other cr editors than he had: it merely tends, by means of the threat of criminal
proceedings for contempt of court , to prevent those who know of its existence from removing the
property and thus diminishing the left lesser security. ” (Emphasis added).
10
[30] In the premises , I remain impervious that the court a quo has not
misdirected itself or applied incorrect le gal principles in the dismissal of the
application for rescission of judgment . The appeal is therefore bound to fail.
Costs
[31] It is trite that the costs are ordinarily within the discretion of the court and
further that they follow the result. These established princip le brooks no further
ventilation and any attempt to upset same in this lis would be unwarranted.
Order
[32] In the premises I order as follows:
The appeal is dismissed with costs including costs of counsel at scale B .
M V NOKO
Judge of the High Court
Gauteng Division, Johannesburg.
DISCLAMER: This judgment was prepared and authored by Judge Noko and is
handed down electronically by circulation to the Parties /their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date for hand- down is deemed to be 12 May 2025 , at 12:00
Date s:
Hearing: 28 January 2025.
Judgment: 12 May 2025
Appearances:
For the App ellant : A P Allison .
11
Instructed by : Tshepo M ohapi attorneys
For the First Respondent : N Lombard.
Instructed by : TWB Attorneys