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IN THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA, PRETORIA

 

(1)      NOT REPORTABLE

(2)      OF INTEREST TO OTHER JUDGES

(3)      REVISED

 

CASE NO.: 91758/2015

10/4/2018

 

In the matter between: -     

 

MTHIMKHULU MBUYISWA SAMUEL                                                         APPLICANT

 

And

 
NEDBANK LIMITED                                                                                     RESPONDENT

 
JUDGMENT

TSATSAWANE AJ

Introduction

 

1         This is an application in terms of Rule 42(1)(a) for the rescission of a summary judgment. The summary judgment was granted on 31 March 2016 in the applicant's absence. The applicant is a "party affected" by the summary judgment as contemplated in Rule 42(1)(a).

2         In terms of the summary judgment, the Court ordered as follows -

 

"1.     Confirmation of the cancellation of the agreement.

 

2.      Return of the goods described as a NEW 2008 GWMS/C2.2; ENGINE NUMBER D0 70 925490 and CHASSIS NUMBER LGWCA23718A068769, to the plaintiff.

 

3.      Forfeiture of all monies paid to the plaintiff by defendant.

 

4.      Leave to apply for:

 

(i)       damages, if any, in an amount to be calculated in accordance with Section 127(5) - (9) of the NCA;

 

(ii)       interest on the said damages at the rate of 20.00% per annum from 29 October 2015 to date of payment.

 

5.       Costs of R200 together with sheriff's costs."

 

3        The question whether it was competent to grant summary judgment on all of the aforesaid terms was not argued before me.

4        The application is opposed by the respondent.

 

The applicant's case

 

5         In his notice of motion, the applicant seeks an order in the following terms -

 

" 1.   Rescinding and setting aside the judgment granted in favour of the Respondent/Plaintiff against the Applicant on the 31 of March 2016.

 

2.      Granting the Applicant/Defendant leave to defend the above action.

 

3.      That the Respondent/Plaintiff be directed to stop to enforce the order granted in favour of the Respondent/Plaintiff under case number 91758/2015 on the 31 of March 2016 until the matter is finalised.

 

4.      That the Respondent/Plaintiff be ordered to pay the costs of this application at an attorney and own client scale..."

 

6        The grounds on which the applicant seeks the aforesaid relief are set out in paragraph 3 of his founding affidavit and may be summarised as follows -

 

6.1        the judgment " was erroneously granted as this above Honourable Court and myself, including my attorneys of record were misled by the Respondent /Plaintiff and its attorneys of record when such judgment was obtained'';

6.2        the respondent ''proceeded to seek relief to the above Honourable Court whilst misrepresenting certain material facts, which if this Court had known of it would have refrained from granting" the summary judgment;

6.3        the respondent "gave this above Honourable Court the impression that I failed to oppose its application for summary judgment" when the applicant had filed a notice to oppose and an opposing affidavit;

6.4        the matter was not on the roll on 31 March 2016 when summary judgment was granted; and

6.5        the respondent "had enrolled the aforesaid summary judgment application under different parties as can be seen from the Court roll that case number 3 relates to a matter between Nedbank v Viridi Homes. This then goes to prove that the Respondent/Plaintiff attorneys deliberately enrolled the summary judgment application under different parties so as to mislead myself, my attorneys of record and this Honourable Court.'

 

7         The applicant's founding affidavit further deals with his alleged prejudice, bona fide defence and absence of wilful default on his part. All of these are irrelevant if rescission is sought in terms of Rule 42(1)(a). For this reason, I do not deal with these issues in this judgment. The misrepresentation upon which the applicant relies is the fact that the application for summary judgment was not on the roll.

8         There is a notice of intention to oppose summary judgment which the respondent does not dispute to have received. That, however, does not on its own constitute a defence to the application for summary judgment. Whilst this notice makes reference to an " opposing affidavit ... annexed hereto" the respondent says that it did not receive such affidavit. This notice of intention to oppose is dated 26 February 2016 and creates an impression that the relevant opposing affidavit is attached thereto.

9         It is important to note that the notice of intention to oppose is under the correct case number of this matter, i.e. 2015/91758. The opposing affidavit which the applicant says was delivered to the respondent is, however, under a wrong case number, i.e. 2015/91755 and was signed by the commissioner of oath on 2 March 2016. This was 5 days after the date on which the notice of intention to oppose was signed and delivered to the respondent.

10       In view of the fact that the notice of intention to oppose summary judgment was signed on 26 February 2016 it necessarily follows that an affidavit deposed to on 2 March 2016 could not have been attached to it. This is more due to the fact that in paragraph 3.3 of his founding affidavit, the applicant says that he served his notice of intention to oppose and answering affidavit " on the 26/02/2016 and 24/03/2016'' respectively .

11       In support of his allegations that he delivered a notice of intention to oppose, the applicant relies on a proof of fax transmission dated 26 February 2016. This proof shows that only two pages were submitted. The opposing affidavit which is three pages could not have been transmitted to the respondent on that date.

12       The applicant further relies on a document attached to his founding affidavit marked C as evidence that he delivered his opposing affidavit to the respondent on 24 March 2016. This document, however, does not constitute such evidence. The contents of this document do not even tell the Court what it is. It is clearly not a covering letter or e-mail to the respondent. It simply states that -

 

"to henry

 

Kindly find attachment Kind regards

 

…

 

Attachments area

 

Preview attachment NOTICE TO OPPOSE MTHIMKHULU 23.03.2016.pdf Sent: 24/03/2016

NOTICE TO OPPOSE MTHIMKHULU 23.03.2016.pdf'

 

13        The respondent's e-mail address or fax number does not appear on this document.

 

The basis of opposition

14       The respondent contends that the applicant has failed to make out a case for an order in terms of Rule 42(l)(a).

15       The respondent further contends that the applicant was fully aware of the date on which the summary judgment application was going to be heard. This date appears on the notice of application for summary judgment to which the applicant responded by delivering a notice of intention to oppose the summary judgment application. Of importance, the respondent disputes that the applicant delivered an affidavit resisting summary judgment. Despite this challenge, the applicant failed to produce evidence of delivery of his opposing affidavit.

16        In my view, when the applicant prepared and delivered his notice of intention to oppose, the applicant was aware of the date and time on which the summary judgment application was enrolled for hearing. It is indeed so that his attorney came to Court on that date - due to the fact that he knew that it was on that date that summary judgment was going to be sought against the applicant.

 

The provisions of Rule 42(1)(a)

17       Rule 42(1)(a) provides that a Court may rescind an order or judgment erroneously sought or erroneously granted in the absence any party affected by it. The Court may do this on application to it or on its own.

18       The rule has been interpreted to mean that a judgment is erroneously granted if there existed, at the time of granting the judgment, facts of which the Court was not aware, which would have precluded the granting of the judgment and which would have induced the Court, if it was aware of them, not to grant the judgment. This remains the correct legal position and there is no need to add to it. See Naidoo v Matlala NO 2012 (1) SA 143 (GNP) and Thomani v Sebeka 2017 (1) SA 51 (GP).

19       The error upon which the applicant relies is that this matter was not on the roll and that the matter which was on the roll is that of Nedbank v Viridi Homes. For this contention, the applicant relies on a copy of the Court roll of 31 March 2016. It is correct that the matter of Nedbank v Mthimkhulu was not on that roll and that it was the matter of Nedbank v Viridi Homes which was on that roll. This matter Nedbank v Viridi Homes, however, appears under the case number of this very matter of Nedbank v Mthimkhulu. Mr. Geach on behalf of the applicant contended that this is an error contemplated in the Rule 42(1)(a). Mr. Minaar on the other hand contended that this is not such an error. None of them referred me to any authority for their propositions. They left me on my own to solve this difficulty.

20       The purpose of the Court roll is mainly to tell practitioners as to which Judge is going to hear which matters and in which Court such matters are going to be heard. This also enables practitioners to take the steps which they must take in the event that matters which are supposed to be on the roll are erroneously not on the roll. In this case, the matter of Nedbank v Mthimkhulu did not appear on the Court roll of 31 March 2017. The matter of Nedbank v Viridi Homes which appeared on that roll appeared under the case number of Nedbank v Mthimkhulu.

21       The Judge who granted summary judgment must have seen the discrepancy in the names of the parties. This, however, is not in my view what would have influenced the Judge to grant the summary judgment on an unopposed basis. It is not the roll which influences a Judge to grant an order - it is what is contained in the Court file and what is presented to the Judge by counsel which influences a Judge to grant an order. In this case, it is not suggested that the Judge granted the order sought to be rescinded against the applicant on the basis of the papers filed in the case between Nedbank v Viridi Homes. It is also not suggested that the Court file which was before the Court on that date is that of the matter of Nedbank v Viridi Homes.

22       The notice of application for summary judgment -

 

22.1      expressly states that "this matter is placed on the Roll for Thursday, the 31 day of March 2016' at 10h00 for summary judgment;

22.2      tells the respondent (the applicant herein) of the terms of the summary judgment to be sought against him on that date;

22.3      shows that the applicant's attorneys of record received the application for summary judgment on 25 February 2016 - more than a month before the date on which the summary judgment application was enrolled for hearing.

 

23      The applicant says that he filed an affidavit resisting summary judgment. The respondent says that it did not receive such opposing affidavit. There is no evidence before me to suggest that the applicant placed his opposing affidavit in the Court file before 31 March 2016. There is also no evidence that such affidavit was served upon the respondent. At the hearing of this application, the applicant did not produce any of this evidence. Even if that may have been so, the applicant would still have been required to deliver heads of argument and appear in Court to argue the matter. The Practice Manual in this Court requires a respondent in a summary judgment application to file heads of argument to contend as to why summary judgment ought not to be granted. The applicant did not do so.

24       The applicant further says that his attorney of record came to Court on 31 March 2016 and did not find the matter on the roll and concluded that the matter was indeed not on the roll and was not going to be heard on that date. He was wrong for the following reasons -

 

24.1      the notice of application for summary judgment told him that the matter "is placed on the Roll for Thursday, the 31 day of March 2016'' at 10h00;

24.2      he did not receive a notice removing the matter from the roll to justify his conclusion that the matter was not going to be heard on that day

24.3      if the applicant's attorney of record was indeed correct in believing that the matter was not on the roll, the Practice Manual of this division makes provision for such a scenario. It provides that such a matter must be brought to the attention of the presiding Judge of the Court on whose roll the matter ought to have appeared after which the presiding Judge then gives directives for its hearing.

24.4      In my view, if the matter was simply erroneously not placed on the roll and notice of its set down had been given to the opponent, as was done in this case, it does not constitute an error contemplated in Rule 42(l)(a) for the presiding Judge to then proceed to hear that matter and to grant judgment if there is no opposition, as was the case in this matter.

 

25       In the circumstances, I am not persuaded that summary judgment was erroneously sought or erroneously granted in the manner contemplated in Rule 42(1)(a) on the basis contended for by the applicant. This, however, does not conclude the matter.

26       The default judgment sought to be rescinded was granted purportedly in terms of Rule 32. Rule 32 provides for summary judgment to be granted "on each of such claims in the summons as is only"

 

26.1         on a liquid document;

26.2         for a liquidated amount in money;

26.3         for delivery of specified movable property; or

26.4         for ejectment.

 

27       Summary judgment is only competent in respect of the claims provided for in Rule 32(1) . Accordingly, if a claim is not one of those listed in Rule 32(1), summary judgment ought not to be granted in respect of such a claim. In my view, not all of the orders which form part of the summary judgment order were competent to be granted in terms of Rule 32(1) due to the fact that they do not fall under any of the claims provided for therein.

28       In the premises, since the Court may on its own rescind an order erroneously sought or erroneously granted, I am of the view that it would not be in the interests of justice if I do not set aside those orders which were not competent to be granted in terms of Rule 32(1). This, however, does not entitle the applicant to the costs consequent upon the setting aside of such orders due to the fact that the applicant did not raise the point. The respondent, however, is entitled to its costs due to the fact that it has successfully opposed the rescission application on the grounds relied upon by the applicant.

29       I make the following order -

 

29.1      Paragraphs 1, 3 and 4 of the summary judgment granted in this matter are rescinded and set aside.

29.2      The respondent's claims in respect of the above-mentioned orders shall proceed in the ordinary manner.

29.3      The respondent' s costs of this application shall be paid by the applicant.

 

 

 

Kennedy Tsatsawane

Acting Judge of the Gauteng Division of the High Court of South Africa, Pretoria.

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