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[2023] ZAWCHC 309
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Smith and Another v Sheriff Cape Town North and Others (6810/2021) [2023] ZAWCHC 309 (29 November 2023)

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 6810/2021
In
the matter between:
PETER
GEOFFREY SMITH
First
Applicant
IRENE
SUSAN SMITH
Second
Applicant
and
SHERIFF
CAPE TOWN NORTH
First
Respondent
GIULIO
DI GIANNATALE
Second
Respondent
ZELDA
DI GIANNATALE
Third
Respondent
Heard:
9 November 2023
Delivered:
29 November 2023 (Electronically)
JUDGMENT
PILLAY, AJ
INTRODUCTION
1.
This is an application for an Order in the following
terms:
1.1.
That the default judgment granted against the applicants
on 17 August 2022 under case number 6810/2021 be rescinded and set
aside.
1.2.
That the applicants be granted leave within 15 days of
the granting of this Order to deliver a Plea (with or without a Claim
in
Reconvention), an Exception or an Application to Strike Out.
1.3.
Costs of the urgent proceedings heard on 6 December 2022
under the above-mentioned case number against the second and third
respondents
on a scale as between attorney and own client,
alternatively costs to be taxable and payable immediately.
1.4.
Costs of this application only in the event that it is
opposed, by such parties opposing the same jointly and severally as
the case
may be, on a scale as between attorney and own client,
alternatively costs to be taxable and payable immediately.
2.
This application has a long history, the relevant
aspects of which may be summarised as follows:
2.1.
On 20 April 2021 the second respondent instituted an
action against the applicants for damages.  The claim is for
damages that
the second and third respondents (“
the
respondents
”
) allege that they have
suffered as a result of the applicants’ failure to disclose
certain defects in an immovable property
sold to the respondents.
2.2.
On 19 May 2021 the applicants filed a notice of
intention to defend.
2.3.
On 17 June 2021 the applicants filed an Exception to the
Particulars of Claim.
2.4.
In response, the second respondent brought an
application for the joinder of the third respondent.
2.5.
The application for joinder was unopposed but according
to the applicants, its outcome was never communicated to them.
An
Order for the joinder of the third respondent (as the second
applicant in the main proceedings) was granted on 15 December 2021.
2.6.
The respondents allege that they delivered a Notice of
Bar on 18 February 2022 on the applicants’ attorneys.
2.7.
On 17 August 2022 the respondents made application for
default judgment.
2.8.
On 19 November 2022 a Deputy Sheriff of the first
respondent arrived at the applicants’ home to execute a court
order that
had been granted.
2.9.
On 6 December 2022 the applicants proceeded by way of an
urgent application to interdict the first respondent (Part A),
pending
a rescission application to be brought by the applicants
(Part B).
3.
In terms of the Court Order of 6 December 2022:
3.1.
Pending the final determination of the application for
the relief sought in Part B thereof, to be instituted within 30 days
of the
date of the Order, the first respondent was interdicted and
restrained from removing and executing on the applicants’
assets
that were judicially attached on 19 November 2022 in terms of
an inventory that was attached to the Order.
3.2.
The parties were granted leave to supplement their
papers as may be necessary for the purposes of Part B.
3.3.
Should the applicants fail to institute an application
for the relief sought in Part B within 30 days of the date of the
Order,
the respondents were granted leave to set the matter down
accordingly, including the issue of costs.
3.4.
The costs of the application shall stand over for
determination under Part B.
4.
The applicants seek rescission of the default judgment
on the basis that:
4.1.
The Notice of Bar was not served on the applicants.
4.2.
The default judgment was made without notice having been
given in terms of Rule 31(4).
5.
The application for rescission is founded on:
5.1.
Rule 42 (1) (a) of the Uniform Rules of Court, which
allows for a Court to vary an order or judgment that was erroneously
sought
or erroneously granted in the absence of any party affected
thereby.
5.2.
Rule 31 (2)(b) which provides that 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.
6.
This application is opposed by the respondents primarily
on two grounds:
6.1.
That there was proper service of the Notice of Bar on
the applicants’ correspondent attorneys.
6.2.
That although notice was not given for default judgment
as required by Rule 31 (4), such non-compliance had been condoned and
default
judgment had, as a result, been properly granted.
7.
In what follows, I shall first address the applicable
legal principles, after which I shall address the evidence in the
matter.
I conclude with my findings.
THE LAW
8.
It is trite that,
as a general rule, a Court has no power to set aside or alter a final
Order.
[1]
The instances in which
it is permitted to do so are narrowly circumscribed under the Rules
or in terms of the common law. This
is to preserve the doctrine of
finality and legal certainty.
9.
The
SCA has repeatedly held that the failure to give notice of
proceedings where such notice was required constitutes an
irregularity
which justifies rescission of the Order granted.
[2]
10.
In
Theron
NO v UDM (WC Region)
1984
(2) SA 532
(C) at 536E, this Court held:
“
Rule
42 (1) entitles any party affected by a judgment or order erroneously
sought or granted in his absence, to apply to have it
rescinded. It
is a procedural step designed to correct an irregularity and to
restore the parties to the position they were in
before the order was
granted. The Court's concern at this stage is with the existence of
an order or judgment granted in error
in the applicant's absence and,
in my view, it certainly cannot be said that the question whether
such an order should be allowed
to stand is of academic interest
only. In any event, it is "very doubtful" whether it is
necessary to establish that
a reversal would confer a benefit upon
applicant. See Featherstonehaugh v Suttie
1913 TPD 171
at 178.
The Court has a
discretion whether or not to grant an application for rescission
under Rule 42 (1). In my view the Court will normally
exercise that
discretion in favour of an applicant where, as in the present case,
he was, through no fault of his own, not afforded
an opportunity to
oppose the order granted against him, and when, on ascertaining that
an order has been granted in his absence,
he takes expeditious steps
to have the position rectified.”
11.
It is well
established that a judgment may be said to have been “
erroneously
granted if there existed at the time of its issue a fact of which the
judge was unaware, which would have precluded
the granting of the
judgment and which would have induced the judge, if aware of it, not
to grant the judgment.
”
[3]
12.
In
Rossitter
and Others v Nedbank Limited
(96/2014)
[2015] ZASCA 196 (1 December 2015)
the
SCA held at par 15 and 16:
12.1.
The notice of intention to apply
for default judgment did not comply with the prescripts of Rule
31(5)(a) read in conjunction with
paragraph 2.3 of the Practice
Manual in that the notice did not provide a time and date on which
default judgment would be sought
(in circumstances where the Summons
had been served more than six months before the application for
default judgment). The Respondent's
notice was therefore lacking and
procedurally defective.
12.2.
If it is shown in an application for rescission under
Uniform Rule 42(1)(a) that
the default judgment was erroneously sought or granted, a Court
should, without more, grant the order
for rescission.  It is not
necessary for a party to show good cause under the subrule.
12.3.
Generally 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 and which would have induced the Court, if
aware of it, not to grant the judgment.
12.4.
There can be no doubt that if the
Registrar had been made aware of the procedural defect in the Rule
31(5)(a) notice, default judgment
would not have been granted.
13.
In
Lodhi
2 Properties Investments CC v Bondev Developments (Pty) Ltd
2007
(6) SA 87 (SCA) at par 24, the SCA held that if notice
of proceedings to a party was required but was lacking
and judgment
was given against that party, such judgment would have been
erroneously granted.  According to the SCA, this
is so not only
if the absence of proper notice appears from the record of the
proceedings as it exists when judgment is granted
but also if,
contrary to what appears from such record, proper notice of the
proceedings has in fact not been given . . ."
14.
During the course
of argument, the respondents placed much emphasis on the judgment of
Obiang
v Van Rensburg and Others
(A119
/ 2022) [2023] ZAWCHC 17; [2023] 2 All SA 211 (WCC) (3 February
2023)
.
That matter concerned an appeal
against
the dismissal of an application for rescission of judgment. The
appellant was the Vice President of the Republic of Equatorial

Guinea. The first respondent instituted action proceedings and
obtained a judgment against the appellant for damages for his
unlawful
incarceration, torture and assault in prison. One of the
issues in that matter concerned the rescission of an Order that
granted
the striking out the appellant’s defences. According to
the majority judgment of this Court, there were no facts to show that

the service of the application to strike out and the notice of set
down should be declared not to be good service.  The majority

judgment found that the appellant tried to cast doubt on whether he
received the first striking out application by alleging that
he may
or may not have received it. It held that there needs to be more and
that there was nothing advanced to doubt the first
respondent’s
evidence.  It was in the context of these facts, that this Court
held as follows:
14.1.
Service is a matter within the discretion of the Court
in deciding whether or not to issue a rescission.
14.2.
Defective service could be condoned. Even if service was
defective, it was not invalid. According to the majority judgment, it
should
be condoned given the circumstances of the appellant’s
non-compliance with the Court Rules.
14.3.
No formal condonation application is required to condone
any defects in service. Service is at the Court’s discretion
and
the Court has the inherent jurisdiction to regulate its process.
THE EVIDENCE
15.
According to the founding affidavit:
15.1.
On 19 November 2022, a Deputy of the first respondent
executed an Order by attaching the applicants’ property,
including a
collection of 35 vintage and other guitars.
15.2.
On enquiry with the Sheriff, the first applicant was
handed a Warrant of Execution: Immovable Property dated 2 November
2022 whereby
the applicants were execution debtors.
15.3.
The first applicant immediately telephoned his attorney,
Mr Roberts who arrived while the Deputy Sheriff was carrying out his
attachment.
Mr Roberts asked to see a copy of the Writ and permitted
the Deputy Sheriff to carry out his duties so that Mr Roberts could
soon
contact the respondent’s attorneys to determine how the
circumstances came to pass.
15.4.
An exchange of correspondence between the attorneys for
the parties culminated in a letter written by the respondents’
attorneys
of record on 28 November 2022 giving the applicants until
30 November 2022 by which to pay R 307 657. 47,  failing
which
the respondents would uplift the attached property without
further notice.
15.5.
In the meantime, Mr Roberts contacted the applicants’
correspondent attorney to confirm whether a Notice of Bar had in fact

been served on them. According to an affidavit deposed to by the
correspondent attorney, it is confirmed that no Notice of Bar
had
been served on the applicants’ correspondent attorneys.
It is explained that the correspondent attorneys do not
have any
record of such service on its offices and that it is not their
practice to simply sign and date a document in that they
would always
stamp the document with the stamp of the firm in the event that it
was physically delivered.
15.6.
The Notice of Bar is signed for by an unknown person.
15.7.
Pursuant to the answering affidavit that was filed in
the urgent application (determined on 6 December 2022), the
applicants came
to understand for the first time that judgment by
default had been granted on 17 August 2022 and that a Notice of Bar
had purportedly
been served on the applicants’ correspondent
attorneys.
15.8.
Nowhere in the application for default judgment is there
a notice of set down as is required by Uniform Rule 31 (4).
15.9.
The applicants further allege the existence of a bona
fide defence to the plaintiffs’ claim and contend further that
they
have not been in wilful default.
16.
According to the answering affidavit (which the second
respondent has deposed to):
16.1.
The respondents served a Notice of Bar on the
applicants’ correspondent attorneys at the specifically
appointed and elected
address. The following is stated by way of
elucidation on this point:
“
13.
On or about 18 February 2022, the messenger of the respondents’
correspondent attorneys, Van Der Spuy
& Partners, physically
served a Notice of Bar on the applicants correspondent attorneys. A
copy of the served Notice of Bar
with the acknowledgement of receipt
dated 18 February 2022 is attached hereto and marked as Annexure
GDG4.
14.
The above-mentioned signature is exactly the same as the signature
and handwriting as is seen on the
notice of motion for the joinder
application and index received on 26 November 2021 by the applicants’
correspondent attorneys.”
16.2.
The Notice of Bar was served personally on the
applicants’ correspondent attorneys and the affidavit filed on
behalf of the
respondents do not confirm that the Notice of Bar was
not received by their office in that he does not state that he acted
as correspondent
at the time when the Notice of Bar was served or was
in charge of the file at the time, only that he is currently in
charge.
16.3.
There is no explanation from the correspondent attorney
as to what procedure is followed at the offices to receive documents
and
which person accepts documents on behalf of the firm.
16.4.
Despite the fact that the Notice of Bar reflects “served
by email”, physical service remains valid service of the Notice

of Bar.  It is alleged in this regard that it was never put
forward by the respondents that the Notice of Bar was served by

email. According to the respondents, it has always been their case,
that the Notice of Bar was served personally on the applicants’

correspondent attorneys as is evidenced by the signature and date
acknowledging same.
16.5.
While it is correct that the stamp of the attorneys does
not appear on the Notice of Bar, it is alleged that this was nothing
more
than an omission on their end as no alternative explanation is
offered.
16.6.
It is accepted that the Notice of Set Down did not
comply with Rule 31 (4). The following is stated in this regard:
“
64.
The Notice of Bar, properly served on the applicants, informed them
that should they fail to deliver their
Plea within the time stated,
the matter shall be set down for Default Judgment.
65.
I am also advised that any non-compliance of Rule 31 (4) alleged can
be condoned by the Court hearing
the Default Judgment. I am advised
that Judge Slingers granted condonation and granted the Default
Judgment. The granting of the
Default Judgment is in the Court’s
discretion.
…
68.
The Default Judgment was granted after due process was followed by
the respondents.
69.
Any non-compliance with the Rules, which is denied, was condoned by
the above Honourable Court hearing
the application for Default
Judgment.
70.
The Default Judgment was therefore properly obtained and there was no
irregularity in the proceedings.”
16.7.
The respondents further allege the absence of a bona
fide defence.
THE ALLEGED NON-COMPLIANCE WITH
RULE 31(4)
17.
Rule 31(4) provides as follows:
“
(4)
The proceedings referred to in subrules (2) and (3) shall be set down
for hearing upon not less than five
days' notice to the party in
default: Provided that no notice of set down shall be given to any
party in default of delivery of
notice of intention to defend.”
18.
According to Western Cape Practice Directive 18, in all
matters to be heard in the Third Division a Notice of Set Down must
be filed
with the registrar by no later than noon (12 p.m.) on the
court day but one prior to the date of the hearing.
19.
It is common cause that there was non-compliance with
Rule 31(4).  In my view, this is fatal for the following
reasons:
19.1.
First
, it is clear that Rule
31(4) is peremptory in its terms. It follows that non- compliance
gives rise to a procedurally defective
application for default
judgment unless condonation has been granted.
19.2.
Second
, it is clear that no
condonation is sought in the application for default judgment and nor
is there any reference to non-compliance
with Rule 31(4).  The
chronology provided in the application ends with a Notice of Bar
having been served and filed on 18
February 2022.  The Draft
Order that is attached to the application makes no reference to
non-compliance with Rule 31(4),
and condonation being granted as a
result thereof.
19.3.
Third
,
the Deponent to the answering affidavit (who is the Second Plaintiff
in the matter) avers that he was “advised”
that the Judge
granted condonation and granted default judgment.  No
explanation is given as to how this knowledge came to
the attention
of the Deponent; it is also not confirmed by anyone with first-hand
knowledge of this.  The allegation of condonation
having been
granted is founded hearsay by the Deponent, which is not, save in
exceptional circumstances, allowed in affidavits.
Even then, the
Deponent must state the source of his information, and affirm under
oath that he believes the statement to be true
and give reasons for
such belief.
[4]
Although
there was no application for the striking out of these hearsay
allegations, in light of the allegations being denied,
they have no
probative value whatsoever and can be ignored.
[5]
19.4.
Fourth
, I do not accept that
the findings in
Obiang
are
of application in the present matter.  In
Obiang
,
service had occurred but it had been alleged to be defective. In
assessing whether the service was deficient or not, the Court
had
regard to the equivocation on the part of the appellant and whether
on the facts of that matter, in the exercise of its discretion,

service had occurred. By contrast, in this matter, it is common cause
that there was no service of the Notice of Set Down. This,
in
circumstances where such service is a peremptory requirement and
there is no evidence of condonation having been sought or granted.

The difficulties are heightened by the fact that the answering
affidavit is founded on hearsay evidence on this score.
19.5.
Finally
, the result of the
aforegoing, is that default judgment was taken in circumstances where
the applicants had no knowledge that default
judgment would be sought
and as a result, were deprived of the opportunity to place their case
before Court.
20.
For all of these reasons, I am of the view that the
failure to have served a Notice of Set Down in accordance with Rule
31 (4) constitutes
a ground for reliance on Rule 42 (1)(a).
This, in my view, is dispositive of the matter.  I shall however
proceed to
consider the further ground, namely, that the Notice of
Bar was not served on the applicants.
THE NOTICE OF BAR
21.
The following aspects of the evidence are of relevance:
21.1.
As stated, the answering affidavit alleges that the
Notice of Bar was served by the messenger of the respondents’
correspondent
attorneys, on the applicants’ correspondent
attorneys. There is no confirmatory affidavit by the messenger of the
respondents’
correspondent attorneys and nor is this person
identified.  It is also not explained how the Deponent to the
answering affidavit
came to acquire this knowledge.
21.2.
A Notice of Bar is attached to the founding affidavit.
It bears a date stamp of the office of the Chief Registrar at the
Western
Cape High Court, reflecting a date of 21 February 2022.
The handwritten date which appears from the Notice is that of 18
February 2022.  The Notice of Bar is addressed to the Clerk of
the Court and to the correspondent attorneys for the applicants.
It
reflects the words “service by email” and bears a
signature against a handwritten date reflecting that of 18 February

2022.  There is a dispute of fact on the papers as to whose
signature is reflected on the Notice of Bar as having received
it on
behalf of the applicants correspondent.
21.3.
Also attached to the founding affidavit is an email
chain from Charmaine Meyer at SVN Attorneys (Steenkamp Van Niekerk
Inc) to Natasha
Du Preez at Van Der Spuy Attorneys.  This email
reads:  “
Good day Natasha, Kindly
find attached hereto Notice of Bar to be served on the opponents.
Please provide me with a copy of
the served notice for our records.
Thank you kindly.
”
In response,
Ms Du Preez states:  “
Dear
Charmaine, we confirm receipt of your instructions and shall let you
have proof in the usual way.
”
21.4.
An email dated 22 February 2022 from Natasha Du Preez to
Charmaine Meyer reflecting an attachment of a Notice of Bar states:

“
Included, is proof of delivery of the
notice of bar.
”
21.5.
A diary entry, taking the form of a handwritten note,
states that the Notice of Bar was served.
22.
Notwithstanding the above evidence that was included in
the application, it is not without significance that the respondents
do
not identify exactly who served the Notice of Bar, the time at
which it was served or any other relevant details pertaining to
service.  There is also no confirmatory affidavit in this
regard, which is of particular significance given that it is apparent

from the answering affidavit that the Deponent himself had no
personal knowledge of the alleged service.
23.
The allegations in the answering affidavit pertaining to
service by the messenger of the correspondent attorneys constitute
hearsay
evidence.  As stated, save in exceptional circumstances,
such evidence is not allowed in affidavits.  No case has been

made out for the admission of such evidence, which is in any event,
disputed by the applicants.
24.
For this reason too, the requirements for the granting
of default judgment have not been met.  In the circumstances, I
am of
the view that the default judgment granted on 17 August 2022
falls to be rescinded and set aside and that the applicants ought to

be given a reasonable opportunity to plead to the Particulars of
Claim (with or without a Claim in Reconvention).
THE TIMING ISSUE
25.
The respondents further take issue with the timing of
this application and argue that in light of the order of 6 December
2022,
the applicants had 30 days in which to launch this application.
On this timeline, the respondents contend that the application for

rescission should have been brought by 5 January 2023.
26.
The respondents did not address oral argument on this
point but made clear that they were not abandoning the point.
27.
I am of the view that there is no merit to this
argument. On an application of the definition of “court day”
in Uniform
Rule 2, the application was timeously brought.
28.
In any event, the Order of 6 December 2022 expressly
made provision that should the applicants fail to institute an
application
for the relief sought in Part B within 30 days of the
date of this Order, the respondents are granted leave to set the
matter down
accordingly, including the issue of costs.  The
respondents have taken no steps to have the matter set down.
29.
In the circumstances, I am of the view that there is no
merit to the argument in respect of timing.
COSTS
30.
What remains to be determined is the issue of costs.
There is, in my view, no reason to depart from the ordinary rule that
costs
should follow the event and that the successful party is
awarded costs as between party and party.
31.
I am not satisfied that a case for costs on an attorney
and own client scale has been made out.
32.
I am of the view that the second and third respondents,
jointly and severally, the one paying the other to be absolved,
should bear
the costs of this application (inclusive of the urgent
proceedings heard on 6 December 2022 under the above-mentioned case
number)
as taxed or agreed on a party and party scale.
ORDER
33.
In the circumstances, I make the following Order:
33.1.
The default judgement granted against the applicants on
17 August 2022 under case number 6810/2021 is rescinded and set
aside.
33.2.
The applicants be granted leave within 15 days of the
granting of this Order to deliver a Plea (with or without a Claim in
Reconvention),
an Exception or an Application to Strike Out.
33.3.
The second and third respondents, jointly and severally,
the one paying the other to be absolved, shall bear the costs of this
application
(inclusive of the costs in the urgent proceedings heard
on 6 December 2022 under the above-mentioned case number) as taxed or
agreed
on a party and party scale.
K Pillay
Acting Judge of the High Court
Appearances
:
For
the Applicants:
Advocate
A Brouwer
Instructed
by:
Roberts
Inc
(ref:
D Roberts)
For
the 2
nd
& 3
rd
Respondents:
Advocate
H Lerm
Instructed
by:
Steenkamp
Van Niekerk Attorneys
(ref:
C van Niekerk)
[1]
Colyn
v Tiger Foods Industries Ltd t/a Meadow Feeds
Mills (Cape)
2003 (6) SA 1
(SCA)
("
Colyn
")
at par 4.
[2]
Top
Trailers (Pty) Ltd and another v Kotze
[2019]
JOL 45953
(SCA);
Lodhi
2 Properties Investments CC v Bondev Developments (Pty) Ltd
2007 (6) SA 87 (SCA);
Rossitter
and others v Nedbank Limited
[2015]
JOL 34894 (SCA).
[3]
Nyingwa
v Moolman NO
1993
(2) SA 508
(Tk) at 510.  Confirmed by the Constitutional Court
in
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector

Including Organs of State and Others
(CCT
52/21) [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) (17 September 2021)
at par 62.
[4]
See
Batista
v Commanding Officer, Sanab, SA Police, Port Elizabeth
1995
(4) SA 717
(SE) at 722B and the authorities cited therein:
Geanotes
v Geanotes
1947
(2) SA 512
(C);
Dennis
v Garment Workers' Union, Cape Peninsula
1955
(3) SA 232
(C);
Syfrets
Mortgage Nominees Ltd v Cape St Francis Hotels (Pty) Ltd
1991
(3) SA 276
(SE) at 285.
[5]
Batista
v Commanding Officer, Sanab, SA Police, Port Elizabeth
1995
(4) SA 717
(SE) at 722B.