---

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)           REPORTABLE: YES/NO

(2)           OF INTEREST TO OTHER JUDGES: YES/NO

(3)           REVISED

 

CASE NO:     99918/2015

12/12/2019

 

In the matter between:

 

SAGAR SHARMA                                                                                          First Applicant

ANISH CHANDRAKANT SHARMA                                                            Second Applicant

PRAKASH KUMAR SHARMA                                                                     Third Applicant

 

and

 

MERCANTILE BANK LIMITED                                                                   Respondent

 

JUDGMENT

 

MOTHLE J

[1]       ln this application the Applicants seek an order rescinding the judgment granted by default in favour of the Respondent on 13 February 2019 in the Civil Trial Roll Court. The judgment was granted by Acting Deputy Judge President Raulinga.

[2]        The Applicants were not before Court on that day. The question before Court is whether the Applicants were in wilful default of appearance. It is trite that if it appears that a default was due to gross negligence or wilfulness, the Court cannot come to his assistance.

[3]        The reasons advanced by the Applicants in support of their application for rescission of the judgment was that their erstwhile attorney of record first erroneously notified the Applicants that the matter was set down for 19 February 2019 and not 13 February 2019. They were of the view that the trial will proceed on 19 February 2019. In addition, their attorney who misinformed them of the date, withdrew on the eve of 13 February 2019 as attorney of record.

[4]        According to the Respondent, the notice of set down for 13 February 2019 was served on the Applicants' erstwhile attorney Mr Jaggan on 16 July 2018. The Respondents further claim that on the date of trial, they stood the matter down and called Mr Jaggan, the Applicant's erstwhile attorney. Mr Jaggan wrote a letter to the Respondent, delivered at Court, wherein he informed the Respondents that he had indeed misinformed the Applicants of the correct trial date, but had corrected the mistake of the date with a telephone call and a follow-up email. The letter was submitted to Court, but did not have the email he alluded to as an attachment.

[5]        It seems what transpired is that when the matter was called, counsel for the Respondent requested the Court to stand down the matter in order to contact the Applicant's attorney. At this stage, the Respondent was aware that the Applicants' attorney had withdrawn as attorney of record on behalf of the Applicants. It was on the strength of the letter that was written by Mr Jaggan which amongst others indicated that the Applicants were notified of the correct date by way of a telephone call followed-up by an email, that judgment was entered in default against the Applicants.

[6]        Mr Jaggan however in writing that letter did not attach the email sent to the Applicants as proof that they were notified of the correction to the erroneous date of trial that was previously communicated to them. The Applicants deny receiving that email as well as the telephone call for Mr. Jaggan.

[7]        The Respondent further alleged that the attorney tried to contact one of the Applicants on 13 February 2019 without success. The Applicants' answer was that on that particular day the person who was being phoned was in a meeting and not aware of the date of trial as 13 February 2019.

[8]       In regard to the other requirements of rescission whether there is a bona fide defence, it is common cause that the trial was set down to proceed in that the parties had joined issue.

[9]        The error by the erstwhile attorneys of the Applicants and the absence of proof that it was subsequently corrected does not in my view indicate any wilfulness on the part of the Applicants. I am thus of the view that the application should succeed and that the judgment obtained in default should be set aside to enable the trial to proceed.

[10]     It was conveyed to the Court that previously the r:natter was before Court and was postponed as a result of the withdrawal by the Applicants' attorney. Ordinarily, the Applicants should not be allowed to obtain numerous postponements which would appear to be an abuse of this Court. However, the circumstances of the case before me cry out for an indulgence as the error was that of their erstwhile attorney in providing them with an incorrect trial date. It is in the interest of justice that I grant them the rescission of the judgment so as to have their day in Court.

[11]       In the premises I make the following order:

1.      The default judgment granted on 13 February 2019 by this Court in favour of the Respondents against the Applicants is hereby rescinded;

2.      The costs of this application will be costs in the cause.

 

 

JUDGES P MOTHLE

Judge of the High Court

Gauteng Division

Pretoria

---