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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

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION. PRETORIA

Case number: 8816/2009

Date: 14 July 2014

Not reportable

Not of interest to other judges

In the matter between:

SHAUKAT ALLI MOOSA................................................................................................................Applicant

v

MAHOMED RAFIK OSMAN SIDDI-AKOO N.O.

In his capacity as trustee of the O S Akoo

Family Trust (IT[...])...............................................................................................................Respondent

In re:

MAHOMED RAFIK OSMAN SIDDI-AKOO N.O.

In his capacity as trustee of the O S Akoo

Family Trust (IT[...]).....................................................................................................................Plaintiff

v

SHAUKAT ALLI MOOSA.....................................................................................................First Defendant

RANAVAV (PROPRIETARY) LTD..................................................................................Second Defendant

Heard: 14 April 2014

Delivered: 14 July 2014 JUDGMENT

A.A.LOUW J

Introduction

[1] The applicant (first defendant in the action) applies for a rescission of the default judgment granted against the first and second defendant on 27 May 2010. The application is launched over two years after the judgment which forms the subject matter of the application, was granted.

[2] The respondent, in his capacity as trustee of the OS Akoo Family Trust (IT[...]) (the trust) instituted action against the applicant and two other defendants for an order:

(a) declaring that the trust is the lawful owner of 25% of the issued capital and loan account in the company Ranavav (Pty) Limited who was the second defendant in the action;

(b) directing the first defendant to transfer one half of the shareholding and loan account which was held in his name, into the name of the trust;

(c) directing the company to record the true state of affairs;

(d) costs against the first defendant only.

[3] The matter came before the Honourable Mr Justice Legodi over the period 25 to 27 May 2010. The applicant elected not to take part in the proceedings and the respondent was successful in the action and was granted the relief sought.

[4] Legodi J granted leave to the SCA. A few days before the hearing of the appeal, on 23 January 2012, a letter was directed by the registrar of the SCA to the respective attorneys. This letter refers to the decision Pitelli v Everton Garden Projects CC¹ This decision makes it clear that no appeal lies against a judgment granted by default. On 9 March 2012 the appeal was struck off the roll.

[5] The applicant now applies for rescission of the judgment in terms of rule 42(1 )(a) and the common law. Herbstein and Van Winsen² explain the ambit and application of the rule as follows:

“It is against the common-law background which imports finality to judgements in the interests of certainty, that rule 42 was introduced to cater for mistake. Not every mistake or irregularity may be corrected in terms of the rule. It is, for the most part, a restatement of the common-law

“It has been stated that the rule “is a procedural step designed to correct expeditiously an obviously wrong judgment or order and the need to proceed rapidly to correct an order mistakenly granted has been stressed. ”

“The court will normally exercise its discretion in favour of an applicant who, through no personal fault, was not afforded an opportunity to oppose the order against him and who, having ascertained that such an order has been granted, takes expeditious steps to have the position rectified. This is in line with the common-lawposition

The proceedings at the trial

[6] An application for postponement was made at the outset by the applicant, on the basis that a liquidator was not joined to the proceedings. This application for postponement was refused on the basis that the liquidator in question was aware of the litigation, chose not to join in the proceedings and to abide by the decision of the court.

[7] After dismissal of the first application for postponement, counsel for the respondent commenced with an opening address. Out of the blue, counsel for the applicant indicated that there was a “dispute” as to his mandate. The matter stood down, after which counsel for the applicant indicated for the first time that his mandate was apparently only to apply for a postponement of the trial and not to proceed with the trial on the merits. This led to a second application for postponement which was also refused. The Honourable Legodi J pointed out that:

“It became quite very clear that this (being the termination of the mandate of the advocate) appeared to have been a strategy to obtain a postponement by all means.” And also that “I must say that I regarded the termination of the mandate of the Counsel who initially appeared for the first defendant as nothing else but a plot to force this court into a postponement I am saying this because the Counsel at the start of his application for postponement never indicated to the Court that he was briefed only to do the postponement. Even after court (sic) had refused the application for postponement he said nothing to suggest that he was briefed only for the postponement, nor did he suggest that he was not ready to proceed with the trial. It apparently came as a shock to him as well when he was told in the middle of an opening statement by Counsel on behalf of the plaintiff that his mandate may no longer be required by the first defendant. Based on this, and on the suggestion that there was another Counsel briefed for trial, I refused the second application for a postponement. ”

[8] The applicant attempted a third bite at obtaining a postponement by informing the court that an advocate from the Durban Bar, Advocate Lennard, had been briefed in the matter but that she could not attend to the trial since there was death in the family. Both these allegations subsequently proved to be untrue. Neither was the specific advocate briefed on trial and she also did not have bereavement in the family. This is alleged in the answering affidavit and not disputed in the replying affidavit. In his reply he refers to an application to strike out which application was not moved before me. The application asks for paragraphs 15 to 26.3 to be struck in toto as these allegations are allegedly offensive, scandalous and irrelevant. In his reply the applicant then proceeds to state:

“I reserve my right to deal with the remainder of these averments and/or allegations in the event of the interlocutory application being unsuccessful.”

[9] These events at the trial clearly show that the applicant was in wilful default. Furthermore, in my view, the three engineered applications for postponement were also contemptuous of the court.

Further delays by the applicant

[10] The application for leave to appeal was five and half months late.

[11] More importantly, after the judgment of the SCA on 9 March 2012 it took the applicant four months to deliver this application. This is an unreasonable delay having regard to the fact that this is a simple application consisting of 21 pages and that all the relevant facts have been canvassed over and over during the appeal process. In the SCA the applicant was represented by senior and junior counsel.

Defences raised by the applicant

[12] The applicant raises three defences which alleges entitles him to a rescission of judgment:

(a) that all the trustees of the OS Akoo Family Trust had not been joined in the action, and that consequently the trust had no locus standi to seek the relief it obtained;

(b) that Roshan Morar NO, the receiver of the Rollco Partnership, was not joined in the proceedings before the court; and

(c) that any claim on behalf of the trust had become prescribed.

[13] I am not going to analyse these defences for the reasons that appear from my conclusion below.

Conclusion

[14] In Chetty v Law Society, Transvaal³ the following was stated:

“It may be that in certain circumstances, when the question of the sufficiency or otherwise of a defendant’s explanation for his being in default is finely balanced, the circumstance that his proposed defence carries reasonable or good prospects of success on the merits might tip the scale in his favour in the application for rescission. (Cf Melane v Santam Insurance Co Ltd1962 (4) SA 531 (A) at 532.) But this is not to say that the stronger the prospects of success the more indulgently will the Court regard the explanation of the default. An unsatisfactory and unacceptable explanation remains so, whatever the prospects of success on the merits. In the light of the finding that appellant's explanation is unsatisfactory and unacceptable it is therefore, strictly speaking, unnecessary to make findings or to consider the arguments relating to the appellant’s prospects of success. Nevertheless, in the interests of fairness to the appellant, it is desirable to refer to certain aspects thereof. ’⁴

This is such a case.

[15] The applicant was in wilful default by not having briefed counsel for the trial. To this day no explanation has been given for this. Instead of playing open cards with the court by telling the court the reason for his predicament, this was not done. Instead the applicant attempted to “engineer” three postponements and lied to the court.

[14] Given the circumstances, the four months taken to lodge this application is also an unreasonably long period.

[15] No court will come to the assistance of an applicant who acted as set out in para 15 above.

Order

The application is dismissed with costs.

A.A. LOUW

Judge of the High Court

For the Applicant: A POLITIS

Instructed by: LOCKHAT & ASSOCIATES

For the Respondent: N A CASSIM SC

Instructed by: ABBAS LATIB & CO

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