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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

(REPUBLIC OF SOUTH AFRICA)

PRETORIA

CASE NO: 50189/10

DATE: 4 NOVEMBER 2014

In the matter between:

J[...] P[...] O[...].............................................................................................................................APPLICANT

AND

P[...] D[...] S[...].........................................................................................................................RESPONDENT

JUDGMENT

MSIMEKI J:

INTRODUCTION

[1] The applicant, in the application, seeks an order:

1. “Dat kondonasie verleen word aan die Applikant vir die laat liaseer van die aasoek om tersydestelling van die vonnis;

2. Dat die verstek vonnis dateer 25 August 2011 in sy geheel tersyde gestel word;

3. Dat die verstek vonnis dateer 5 Oktober 2011 in sy geheel tersyde gestel word;

4. Dat die Applikant gelas word om sy kennisgewing van verdediging te liaseer binne 10 dae na datum van toestaan van die bevel;

5. Dat die koste van die aansoek,slegs indien geoponeerd;

6. Verdere en/of altematiewe regshulp”

BRIEF BACKGROUND FACTS

[2] The parties had a love relationship and lived together for 5 years. They conducted two businesses one in South Africa known as Budsoft CC in which they both held 50% members interest. They conducted the other business known as Household Enterprise in Mozambique.The business was run for approximately eight months. The business in Mozambique came into being after the close corporation in South Africa was unsuccessful. The applicant contends that the respondent, in Mozambique, started another relationship with another man. This, according to the applicant, caused him to terminate their relationship. The respondent then pulled out of the business. This, the respondent denies. It is the applicant’s further contention that he, on his return to South Africa, discovered that the respondent had removed all his movable property from his primary residence being his home on his farm Kareennpan on which they both lived. Going back to Mozambique, the applicant further contends, he found that the respondent had removed all their business equipment, his mobile home as well his boat and fishing equipment. Back home the respondent instituted an action against the applicant claiming:

CLAIM 1: payment of R535.000.00 for money lent and advanced, and

CLAIM 2: payment of R375.000.00 representing the value of the respondent’s jewellery which the applicant is alleged to have been in possession of and which he is alleged to have disposed of with the knowledge that the jewellery had belonged to the respondent. It is the respondent’s contention, that she validly took judgment by default against the applicant and attempted to sell the applicant’s immovable property when no movable property could be found to satisfy the judgment. The applicant then launched an urgent application which served before Bertelsmann J. The application was: to set aside the warrant of execution against immovable property dated 02 May 2012; to set aside the notice of the sale dated 28 February 2013; and to set aside the sale of portions 6 and 28 of the farm 177 Kareenpan Wolmaranstad scheduled to take place on 11 April 2011.On 09 April 2011 Bertelsmann J granted the relief and ordered the Applicant to launch the application for the rescission of the judgment within 7 days of the court order. Such application was indeed launched on 15 April 2013. The application is opposed.

[3] As is evident from the notice of motion, the applicant seeks condonation for the late bringing of the application for rescission of the default judgments of 25 August 2011 and 05 October 2011. Condonation is also opposed.

[4] The applicant contends that he has furnished reasonable and acceptable explanation for the delay in bringing the application. The applicant further contends that he has bona fide defences to the two claims. This again is disputed by the respondent who contends that the delay is excessive and not accompanied by bona defences.

[5] It is important, at the outset, to mention that default judgment may be rescinded in terms of:

1. Rule 42( 1 )(a),(b) or (c) of the Uniform Rules of Court, and

2. Rule 31(2)(b)

Rule 27(3) provides:

“(3) The Court may, on good cause shown, condone any non- compliance with these rules.”(my emphasis)

Rule 27(3), indeed, must be read together with Rules 42 and 31.

Rule 31(2) (a) which forms the basis of a default judgment is noteworthy.

It provides:

“(2) (a) Whenever in an action the claim or, if there is more than one claim any of the claims is not a debt or liquidated demand and a defendant is in default of delivery of notice of intention to defend or of a plea, the plaintiff may set the action down as provided in sub rule

(4) for default judgment and the court may, after hearing evidence, grant judgment against the defendant or make such order as to it seems meet.” (my emphasis)

[6] Rule 31 (2) (b) provides:

“(b) A defendant may within twenty days after he or she has 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 to it seems meet.”(my emphasis)

[7] Rule 42(1) provides:

“(1) The Court may, in addition to any other powers it may have,mero motu or upon application of any party affected, rescind or vary:

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

(b) An order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

(c) An order or judgment granted as the result of a mistake common to the parties.”

[8] An application for rescission of judgment can also be brought under common law.

[9] Before an application can be granted certain requirements have to be met. These are:

1. that good or sufficient cause must be shown, and

2. that there must be a bona fide defence.

These requirements must be met by the party that seeks relief. I shall now deal with each one of them.

GOOD OR SUFFICIENT CAUSE

The examples of good cause have never been exhaustive. In simple terms all it means is that there must be reasonable and acceptable explanation where the judgment was allowed to go by default. See De Wet and Others V Western Bank Ltd 1979 (2) SA 1031 (A) at 1042. Before dealing further with these requirements I shall first determine if the applicant’s conduct leading up to the launching of the application is condonable.

[10] Mr Pretorius, for the respondent, applied for condonation for the late filing of the practice note and heads of argument. The application was not opposed and I granted it.

[11] The claims are embodied in one combined summons and particulars of claim. The combined summons was served on one Johan Barnard and not on applicant personally. The respondent, in the absence of appearance to defend, applied for default judgment which was granted on 25 August 2011 in respect of claim l.The adjudication of claim 2 was postponed sine die. This, because the claim relates to damages. On 05 October 2011 the court considered claim 2 and granted judgment by default for payment of R375.000.00 and costs. The applicant, in respect of claim 1, had been ordered to pay R535.000.00, interest and costs to the respondent.

[12] The applicant, in the urgent application, explained that he, for the first time, had known that the two judgements by default had been taken against him on 06 July 2012 when the warrant of execution was served on his neighbour, Mr Louw Scholz.

[13] Mr Pretorius submitted that condonation ought not to be granted by reason of the applicant’s failure to comply with the North Gauteng Practice Manual and Directives. Mr Pretorius further submitted that the applicant took too long to lodge the application and failed to explain the excessive delay. The applicant, Mr Pretorius further submitted, simply has been in wilful default or acted in reckless disregard of the Court Rules. Mr Blignaut, for the applicant, disagrees submitting that the explanation was properly proffered in the urgent court and that same, in his view, is still reasonable and acceptable.

[14] Bertelsmann J, in the urgent court, granted the relief and set aside the warrant of execution, the notice of the sale dated 28 February 2013 and the sale of portions 6 and 28 of farm 177 Wolmaranstad scheduled for 11 April 2013 and ordered the applicant to bring the application to rescind the judgments within 7 days of the court order. Mr Blignaut submitted that the urgent court would not have granted the relief and given the applicant indulgence to bring the application to have the two judgments rescinded if the applicant had not furnished reasonable and acceptable explanation regarding what transpired in this matter.

[15] Mr Pretorius submitted that the applicant had to give two explanations, the one in the urgent court and the second in this court. The applicant, according to him, failed to give an explanation before this court as he again relied on the explanation that he had furnished in the urgent court. Mr Blignaut disagreed.

[16] Mr Blignaut submitted, just as the applicant contended, that upon becoming aware that the two judgments had been taken, the applicant instructed his attorneys to attend to the rescission. The applicant explained that he, in the process, fell ill and was hospitalised which delayed his consultation with his attorneys. The application, according to him, at the time, was nearly finalised. Mr Pretorius did not regard the applicant’s explanation reasonable and acceptable.

[17] It is indeed so that in considering whether or not the applicant has disclosed the good cause, as Mr Pretorius correctly submitted, the court in its exercise of the judicial discretion has to have regard to the degree of non-compliance, explanation of the delay, prospects of success, the other party’s interest in finality, the evidence of unnecessary delays and the degree of negligence. See in this regard Saloojee V Minister of Community Development 1965 (2) SA 135 (A) at 138 D-F; Kgobane & Another V Minister of Justice & Another 1969 (3) SA 365 (AD) at 369 D-F and Melane V San tarn Insurance Co. Ltd 1962 (4) SA 531 (AD) at 532.

[18] In Melane V Santam Insurance Co. Ltd (supra) at 532 Holmes JA, dealing with sufficient cause said that the factors mentioned in paragraph 17 above are interrelated and that there would be no point in granting condonation where there are no prospects of success. At 532 D-E the Judge said:

“Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be 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.’Ymv emphasis).

[19] A proper consideration of the facts and the circumstances of the case reveal the following in respect of Claim 2:

1. An amount of R 62.000.00 was erroneously considered when quantum was determined. This means that judgment was erroneously taken in respect of this amount. The respondent concedes that judgment may be rescinded in respect of this amount in Claim 2.

2. Rule 42 (1) (a) deals with judgments which are erroneously sought and erroneously granted in the absence of any party which can be rescinded. The amount of R62.000.00 relates to the 4 last items on Mr George Venter’s valuation list which do not form part of Annexure “A” to the respondent’s particulars of claim.

3. The number of items on annexure “A” to the plaintiffs particulars of claim does not correspond with the number of items on the valuation list. Even if the last four items on the valuation list are removed the numbers of the items still do not correspond. The respondent has 28 items while the valuation list has 30. Removing the last four items from the valuation list still leaves us with 26 items which still do not correspond in number with those of Annexure “A” to the respondent’s particulars of claim.

4. The respondent then requested that R62. 000.00 be deducted from R 375.000.00 which then would mean that Claim 2 would then amount to R348.000.00.

5. The applicant, in his reply, contends that this cannot assist the respondent as Mr Venters valuation reflects an amount of R410.000.00 while the respondent sued for payment of R375.000.00 and not R410.000.00.

6. Mr Venter’s calculation is incorrect as the addition of the amount on his annexure “A” on page 41 of the papers gives us R416.000.00 and not R410.000.00. The applicant contends that it remains unclear as to where the R62.000.00 must be deducted from in the light of the existence of these different amounts.

7. Mr Venter valued items which he did not personally and physically see. Reliance was placed only on the list that he appears to have been furnished with.

8. The valuation list does not have the weight of the diamond, the form and the colour thereof.

9. The respondent concedes that there is no red or green diamond valued at R10.000.00. The amount no longer forms part of Claim 2.

10. The respondent laid a charge of theft of her jewellery under case number 139/7/2010 (SAP: Wolmaranstad) against the applicant. The State did not proceed with the charges preferred against the applicant. He was not prosecuted. The jewellery, at the time, was valued at R359.000.00 while the respondent sued for payment of R375.000.00. The amounts differ from the valuation figure of R410.000.00.

[20] It is noteworthy that Mr Pretorius submitted that in the event that the court granted the condonation that the applicant seeks, the second Claim only, ought to be rescinded. This, because Mr Pretorius could not explain away the problems referred to above that the respondent faces in respect of Claim 2.

[21] Regarding Claim 1, the applicant submitted that:

1. The respondent alleged that she had lent and advanced to him the amounts totalling R535.000.00 without specifying the dates on which such amounts were allegedly lent and advanced.

2. Claim 1 had become prescribed as, according to him, a period of more than 3 years has expired since the monies were allegedly lent and advanced.

3. The monies were not lent and advanced to him in his personal capacity. The monies, according to him, were contributions by the respondent to the two businesses that they conducted which would entitle her to a 50% share in the businesses. The respondent denies all this.

[22] In De Wet and Others V Western Bank Ltd (supra) Trengove AJA dealing with courts discretion under common law said:

“...the Court’s discretion under the common law extended beyond, and was not limited to, the grounds provided for in Rules 31 and 42 (1), and those specifically mentioned in the Childerley case. Those grounds do not, for example, cover the case of a litigant, or his legal representative, whose default is due to unforeseen circumstances beyond his control, such as sudden illness, or some other misadventure; one can envisage many situations in which both logic and common sense would dictate that a defaulting party should, as a matter of justice and fairness, be afforded relief.”

[23] The facts and circumstances of this matter, logic and common sense, after a proper consideration of evidence as a whole, as a matter of justice and fairness, demand that the applicant be provided with an opportunity to place evidence to the contrary, if any, before the court for due adjudication by it.

[24] The concessions made on behalf of the respondent and the evidence as a whole enable me to find in favour of the applicant regarding the relief that the applicant seeks. Even if prescription did not run in respect of Claim 1, it is evident that the applicant demonstrates the presence of bona fide defences in respect of both claims. The applicant has disclosed averments which, if established at the trial, would entitle him to the relief sought. It is also trite that he need not deal fully with the merits of the case and produce evidence which demonstrate that the probabilities are actually in his favour. See Terrace Auto Services Centre (Pty) Ltd & Another V First National Bank of South Africa Ltd 1996 (3) SA 209 (W) at 212. The applicant, in my view, has made out bona fide defences which carry some prospects of success for the court to exercise its discretion in his favour. The application, therefore, should succeed.

COSTS

[25] Mr Blignaut submitted that although Berstelsmann J, in the urgent court, had ordered that the applicant pay the taxed costs of the application in terms of paragraph 5 of the court order, it would, in this case, be prudent that costs be costs in the cause. Mr Pretorius, on the other hand, submitted that in the event that the application was granted the applicant should be ordered to pay the respondent’s costs. I do not agree.

[26] Having regard to the facts and the circumstances of the matter, I am sufficiently persuaded to agree with Mr Blignaut’s submission.

[27] I, in the result, make the following order:

1. An order is granted in terms of prayers 1,2,3, 4 and 5 as amended of the Notice of Motion dated 15 April 2013.

M.W. MSIMEKI

JUDGE OF THE NORTH GAUTENG

HIGH COURT, PRETORIA

COUNSEL FOR THE APPLICANT: Adv. D F Blignaut

INSTRUCTED BY: JP KRUYSHAAR ATTORNEYS

COUNSEL FOR THE RESPONDENT: Adv. J J Pretorius

INSTRUCTED BY: HANNES VAN WYK INC

DATE OF HEARING: 24/10/2014

DATE OF JUDGMENT: 04/11/ 2014

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