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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 LOCAL DIVISION, JOHANNESBURG

CASE NO: 14/30734

In the matter between:

JANET PRETORIUS	Applicant
and
VISAGIE DRILLING CONTRACTORS	Respondent

 

 

JUDGMENT

 

CRUTCHFIELD AJ:

[1] The applicant claimed the rescission of a default judgment granted by the Registrar of this Court (‘the Registrar’), on 2 July 2015, together with condonation for the late filing of the rescission application (‘the application’).

[2] I was informed from the bar that the applicant brought the rescission application in terms of Rule 31(2) (b) of the Uniform Rules of Court (‘the Rules’).

[3] The default judgment (‘the judgment’) was granted against the applicant qúa second defendant, and three additional defendants jointly and severally the one paying the other to be absolved, for:

3.1 Payment of the sum of R667 534.19;

3.2 Interest at the rate of 15.5% per annum from 9 May 2014 to date of final payment; and

3.3 Costs of suit.

[4] Neither party referred to the applicant’s failure to join the three defendants liable with the applicant under the judgment, as parties to this application.   

[5] The judgment arose from a deed of suretyship (‘the suretyship’) signed by the applicant.

[6] The respondent, the judgment creditor, opposed both the claims for condonation and rescission.

[7] The applicant failed to file a replying affidavit and heads of argument.  Accordingly, the respondent prepared the court file and set the application down for argument.

[8] The respondent agreed to the applicant furnishing the replying affidavit and heads of argument at the hearing in order for the matter to proceed to finality.

[9] I deal firstly with the applicant’s claim for condonation of the late filing of the rescission application.

[10] Rule 31(2) (b) provides that a party bring a rescission application within twenty (20) days of learning of the judgment. This application incepted on 2 March 2018. 

[11] The overarching requirement for condonation of non-compliance with the Rules is that the condonation sought serves the interests of justice. A court’s discretion to grant condonation flows from s 173 of the Constitution,[1] in terms of which a High Court is entitled to regulate its own process. That discretion includes the power to prevent any abuse of the court’s procedures.

[12] Condonation may be granted upon an applicant demonstrating ‘good cause’, the elements of which are well known. Firstly, a reasonable explanation that allows a court to truly understand how the default occurred must be furnished. Additionally, the application must be made bona fide and not merely with the intention of delaying the judgment creditor in its claim.  Finally, the existence of a bona fide defence in respect of which the applicant, prima facie, has some prospect of success.  A probability of success is not required, a triable issue will suffice. [2]

[13] A reckless or intentional disregard of the Rules justifies the refusal of condonation.[3]   

[14] The applicant carried the onus to demonstrate that condonation should be granted.

[15] The applicant’s version ran along the following lines:

15.1 The applicant admitted that she became aware of the judgment during July to August 2015, when the sheriff served a writ of execution upon her and informed her of the judgment.

15.2 At that stage, the applicant had sold and transferred her shares in Khulisa Piping (Pty) Ltd, (the first defendant in the action pursuant to which the judgment arose), to a third party, the Du Plessis Family Trust IT No TT1477/09, (‘the Trust’), on 15 March 2015. 

15.3 A purported agreement of sale between the applicant and the Trust represented by one André George du Plessis, allegedly a trustee of the Trust (‘the trustee’), was annexed to the application as proof of the sale and the terms thereof, (‘the agreement’).

15.4 Upon learning of the judgment, the applicant contacted the trustee who undertook to the applicant that the Trust would resolve the issues underlying the writ of execution and make payment in settlement of the judgment.  

15.5 The applicant did not proffer any proof of this alleged interaction with the trustee.  Nor did the applicant furnish a confirmatory affidavit by the trustee in respect of the allegations that related to him or the Trust.

15.6 The applicant did not set out any basis as to why the agreement bound the respondent, or, relieved the applicant of her obligations under the suretyship to the respondent as the applicant contended the agreement did.

15.7 Notwithstanding, the applicant alleged that her single interaction with the trustee served to resolve her liability under the judgment.

15.8 Thereafter, on 5 February 2018, the deputy sheriff served a Notice to Appear in Court (Section 65A(1)), upon the applicant, causing her to attend upon her attorneys of record in this application.

15.9 The applicant alleged that she was bona fide in her belief that the trustee was attending to the judgment, and that she did not deliberately delay in bringing the application some two and a half years after becoming aware of the judgment.  

[16] Thus, the applicant contended that she was entitled to condonation of the late filing of the rescission application.

[17] The applicant persistently denied signing the suretyship in her affidavits. The applicant’s counsel, correctly in my view, conceded the applicant’s signature of the suretyship at the hearing. 

[18] In so far as the applicant denied that she knew she was signing a suretyship, the applicant is identified by name and identity number in the first paragraph of the suretyship document below the heading ‘SURETYSHIP’ printed in capital letters and underlined.

[19] The applicant raised various defences in the alternative in respect of the validity of the suretyship. It is not necessary for me to deal therewith in the light of the view I take of this application.

[20] The respondent’s stance was that the applicant was in wilful default in respect of both the applications for condonation and rescission. 

[21] The respondent demonstrated that the applicant was not wholly forthright in her averments to this court and that the applicant did not disclose certain events material to her alleged bona fides.

[22] The applicant omitted to mention inter alia, that she signed a nulla bona certificate pursuant to an attempted attachment of her movables by the deputy sheriff on 11 April 2016. The respondent furnished a copy of the nulla bona certificate evidencing the applicant’s signature thereto.

[23] Nor did the applicant disclose that on 29 March 2017, the applicant’s attorney of record acting on behalf of the defendants in the action, requested the respondent to consent to the late filing of an application for rescission of the judgment. The respondent refused to do so. Notwithstanding, yet another year passed before the applicant launched this application. 

[24] The applicant is obliged, in demonstrating ‘good cause’, to furnish a ‘valid and justifiable’ reason for her non-compliance[4] with the twenty (20) day[5] period. The longer the duration of the default the better the explanation should be.  Reckless non-compliance with the Rules justifies the refusal of condonation.[6]

[25] The applicant’s own version of the events subsequent to her acquiring knowledge of the judgment revealed that she did nothing, from the time of her alleged interaction with the trustee during July August 2015, until February 2018 after the Notice to Appear in the Section 65(a) court was served upon her.  The applicant’s attorney’s intervention on 29 March 2017 does not serve to improve the applicant’s explanation. 

[26] Not once did the applicant take a single step purposed at ensuring that the trustee was attending to the judgment, as she allegedly believed he was doing. That failure alone raises significant doubt in respect of the applicant’s alleged bona fide belief that she had resolved her liability under the judgment.

[27] The applicant was silent on the steps, if any, taken by her in respect of the judgment pursuant to the attempted attachment of her movables when the writ was reserved on her on 11 April 2016.

[28] The attempted attachment ought to have alerted the applicant to the fact that the trustee was not complying with his undertaking, and, caused the applicant to take action accordingly.  Notwithstanding, the applicant did nothing for approximately two (2) years thereafter, until February 2018.

[29] The respondent’s acceptance of an offer by another of the defendants to enter into a payment plan with the respondent did not relieve the applicant of her obligations quá surety, to the respondent as the applicant alleged the acceptance did.

[30] The monetary amounts under the judgment are significant.

[31] Given those amounts, it is surprising that the applicant failed to take any steps whatsoever to ensure that the trustee was attending to the judgment as allegedly undertaken by him.

[32] The applicant’s failure to do anything in respect of the judgment for almost two years after the attempted attachment of her movables on 11 April 2016 is a matter of particular concern to me

[33] The applicant’s inaction in the face of the trustee’s manifest failure to comply with his undertaking, renders the applicant’s alleged bona fide belief that she had resolved her liability under the judgment (notwithstanding that in law she had not done so), wholly improbable.

[34] The applicant did not proffer any explanation for her inaction, which, in my view, can justifiably be regarded as a reckless disregard of the judgment and its consequences.

[35] Moreover, despite the respondent’s refusal to agree to condonation during March 2017, the applicant persisted in failing to take any steps to rectify her position for another year thereafter, conduct that the applicant did not explain. 

[36] The applicant’s supine attitude undermines, significantly so, the applicant’s contention that she did not deliberately delay in bringing the application, and, that she bona fide believed that the trustee was attending to the judgment.

[37] In the circumstances, there is no reasonable explanation justifying the applicant’s launch of the application some two and a half years after she became aware of the judgment.

[38] In Darries,[7] the SCA found that where non-observance of the Rules has been ‘flagrant and gross’, a court should be slow to grant condonation.

[39] The Constitutional Court in Unitas[8] considered a delay of eleven (11) months together with the absence of a reasonable explanation for the delay, as ‘inordinate’.  

[40]     Whilst the relief sought in Unitas was moot, the prospects of success in respect of the main application were an insignificant consideration in the light of the inordinate delay and the absence of a reasonable explanation for that delay.[9]

[41] The extent of the applicant’s non-compliance is severe.  The applicant’s explanation for that non-compliance is wholly inadequate. It points to a reckless disregard of the judgment, and a wilful failure on the applicant’s part to cure her default timeously.

[42] Additionally, I am not persuaded of the applicant’s bona fides in this application.

[43] Granting condonation in the face of the applicant’s delay together with the absence of an adequate explanation for that delay, would serve to undermine the respondent’s entitlement to finality of the litigation, (albeit that the respondent did not place reliance thereon at the hearing), and, the administration of justice. In short, an order of condonation in this matter would be inimical to the interests of justice.[10]

[44] In the light thereof, I am of the view that this is not a matter in which I should grant condonation, and I intend to give an order consistent therewith.   

[45] Given that the failure of the condonation application is dispositive of the application in its entirety, it is not necessary for me to deal with the rescission application.

[46] The respondent claimed costs on the attorney and client scale pursuant to the alleged absence of a triable defence and the application being an attempt to delay payment to the respondent.

[47] I have found that the applicant recklessly disregarded the judgment and that the applicant was not wholly bona fide in respect of this application. As a result thereof, I am of the view that an order for costs on the attorney and client scale is appropriate and I intend to grant such an order. 

THE DEPUTY SHERIFF

[48] The conduct of the deputy sheriff in this matter remains to be considered. 

[49] The deputy sheriff’s return of service reflects service on the applicant in terms of Rule 4 (1) (a) (ii), on Mrs Anel Thomas – the person in charge of the premises –at 09h43 on 8 September 2014 at […] A Street, Visagie Park, Nigel. Mrs Anel Thomas, (the third defendant in the main action) signed for acceptance of the document and undertook to hand it to the applicant. 

[50] The applicant provided the address […] A Street, Visagie Park, Nigel, as her residential address on the suretyship signed by her, immediately below her signature. There is no doubt that the applicant resides at the address.  

[51] Notwithstanding the deputy sheriff’s return, the applicant denied receipt of the summons and contended (in her founding papers) that the summons was served at 81 North Street, Nigel, Khulisa Piping (Pty) Ltd’s place of business.

[52] However, the applicant, in reply, furnished a version at variance with that stated in her founding papers, and, with the deputy sheriff’s return of service. The applicant alleged that the summons was served at […] B Street, Visagie Park, Nigel, being the residential address of Mrs Anel Thomas (‘Thomas’).

[53] The applicant relied in respect of her version in reply, upon an affidavit of Mr L Nxawe, the deputy sheriff who served the summons (‘Nxawe’), and an affidavit of Thomas. 

[54] Nxawe stated in his confirmatory affidavit that he served all four summonses on the four defendants on Thomas at […] B Street, Visagie Park, Nigel. Thomas confirmed as much.

[55] Nxawe’s confirmatory affidavit was problematic.  He did not withdraw or amend the original return of service or explain why that return was defective, and declined to explain his sudden about-face in respect of the service of the summons.

[56] The applicant drew my attention to the fact that the returns of service rendered by Nxawe indicated that service in respect of the first, second and third defendants was effected on Thomas all at exactly the same time but at three different addresses.

[57] A sheriff or deputy sheriff’s return of service constitutes prima facie proof of the contents thereof.[11] Accurate returns of service are critical to the effective and efficient functioning of our courts where reliance is placed on them daily.

[58] Nxawe’s unexplained conduct in furnishing an affidavit significantly at variance with his original return of service, without providing an explanation for that variance, serves to undermine the administration of justice and should not be overlooked.

[59] Accordingly, I intend to request the respondent’s attorneys of record herein to convey this judgment to the attention of the South African Board for Sheriffs[12] (‘the Board’), together with a request that the Board, acting in terms of Chapter IV of the Sheriff’s Act, investigate the conduct of Nxawe referred to in this judgment below the heading ‘The Deputy Sheriff’, and, take whatever steps the Board considers appropriate pursuant to their findings.  

[60] The respondent’s attorneys are to convey the judgment and request to the Board within one month of the date on which this judgment is handed down, and, to copy the applicant’s attorneys of record on the correspondence to the South African Board for Sheriffs.   

[61] By reason of the foregoing, I grant the following order:

1. The application is dismissed with costs on the scale as between attorney and client.  

2. The respondent’s attorneys of record are requested to convey this judgment and this Court’s request (referred to in prayer 2.1 below), within one month of the date on which this judgment is handed down, to the attention of the South African Board for Sheriffs.[13]

2.1 The South African Board for Sheriffs is requested, in terms of Chapter IV of the Sheriffs Act:

2.1.1 To investigate the conduct of Deputy Sheriff L Nxawe, deputy sheriff for the District of Nigel,  referred to in this judgment below the heading ‘The Deputy Sheriff’; and

2.1.2 To take whatever steps the South African Board for Sheriffs considers appropriate to the outcome of the investigation.

3. The respondent’s attorneys are requested to copy the applicant’s attorneys of record on the correspondence to the South African Board for Sheriffs.

 

 

_________________________________________________

A A CRUTCHFIELD SC

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG.

 

 

COUNSEL FOR THE APPLICANT: Ms K Potgieter.

INSTRUCTED BY: De Beers Attorneys.

COUNSEL FOR RESPONDENT: Mr R G Cohen.

INSTRUCTED BY: Esterhuyze Attorneys.

DATE OF HEARING: 16 October 2018.

DATE OF JUDGMENT: 19 November 2018.

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