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REPUBLIC OF SOUTH AFRICA

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: 73759/17

 

In the matter between:

JC SCHUTTE                                                                          APPLICANT / DEFENDANT

 

and

 

NEDBANK LIMITED                                                               RESPONDENT / PLAINTIFF

 

Heard: 20 November 2019

Judgment: 13 December 2019

 

 

JUDGMENT

 

MOVSHOVICH AJ:

[1]        This is an application to rescind a default judgment granted by the Registrar of this Court.

Background facts

[2]        The brief background facts are as follows.

[3]        In September 2017, the respondent ("Nedbank") instituted action proceedings against the applicant ("Mr Schutte") ("the action") seeking to hold the latter liable under an alleged suretyship agreement concluded in 1998.  The particulars of claim were amended in November 2017.  Mr Schutte entered an appearance to defend the action; thereafter, Nedbank applied for summary judgment.  After Mr Schutte delivered his answering affidavit in the summary judgment application, by agreement between the parties, Mr Schutte was given leave to defend on 4 January 2018.

[4]        In the meantime, on 23 November 2017, Mr Schutte served a lengthy notice in terms of rules 35(12) and (14) on Nedbank, seeking disclosure of 36 items which he averred were necessary for him to plead ("the Rule 35(12) and (14) notice").

[5]        After inter-attorney correspondence and delays in responding to the notice by Nedbank, it was agreed that Mr Schutte's legal representatives could inspect the relevant documents on 7 May 2018.  They duly did so, and requested copies of the documents, which were ultimately delivered on 9 May 2018.

[6]        Before the inspection took place, and as Mr Schutte remained in default of the delivery of a plea, Nedbank served a notice of bar on Mr Schutte on 3 May 2018.

[7]        The plea was not delivered by 10 May 2018 and thus Mr Schutte was, by 11 May 2018, ipso facto barred from delivering a plea.

[8]        In the afternoon on 11 May 2018, Nedbank served the default judgment application on Mr Schutte's attorneys.

[9]        Mr Schutte's attorneys then purported to deliver a plea electronically in the evening of 11 May 2018 ("the plea").

[10]     In the covering email to the plea, Mr Schutte's attorneys asked for the late filing of the plea to be condoned.  On 15 May 2018, that request was refused.  Mr Schutte then launched an application to condone the late filing of the plea ("the condonation application").

[11]     On 16 May 2018, the default judgment application was filed with the Registrar.

[12]     On 18 May 2018, the Registrar of this Court granted default judgment against Mr Schutte in the amount of R3,161,362.70 plus interest and costs ("the May 2018 judgment") in respect of the action.

[13]     On 15 June 2018, Mr Schutte delivered an application seeking rescission of the May 2018 judgment.

Issues

[14]      The rescission application papers are lengthy.  I do not propose to dwell on every aspect of the case.  In argument, Mr Schutte's counsel, Ms Hassim SC, advanced three bases for rescission:

[14.1]         a challenge to the jurisdiction of the Registrar to grant default judgment in circumstances where Mr Schutte resides in Australia;

[14.2]         the May 2018 judgment was erroneously sought or erroneously granted as contemplated in Rule 42(1)(a) of the Uniform Rules of Court ("the Rules");

[14.3]         the May 2018 judgment should be rescinded on the basis of Rule 31(2)(b) of the Rules.

[15]     I address each of the bases in turn.

Jurisdiction

[16]     The issue of "jurisdiction" was raised by Ms Hassim SC on the morning of the hearing of the matter.

[17]     The submission made is that the Registrar when granting default judgment did not have jurisdiction to do so because Mr Schutte is a foreign peregrinus.  In support of this proposition, Mr Schutte's counsel relied on the opening paragraph of Mr Schutte's founding affidavit in the rescission application dated 8 June 2018 where he states that "I reside in Sydney, Australia for the majority of the year and only visit the Republic of South Africa from time to time".  She also referred to various signature pages of agreements which are annexes to the rescission application and which appear to have been signed by Mr Schutte in Sydney, Australia in 2013.

[18]     This is not a matter where Mr Schutte takes issue with this Court having jurisdiction to decide the rescission application.  Jurisdiction is raised simply as a further basis to impugn the May 2018 judgment.  Whether the Registrar had jurisdiction over Mr Schutte was, however, not an issue raised in the rescission application. The question is whether the issue may be raised in argument at this late stage. In my view, not.  In accordance with a long line of authority, it is impermissible for a party to rely in argument on extracts from annexes or other alleged facts which have not been fully ventilated on affidavit.[1]  Had the matter been properly pleaded, Nedbank would have had a reasonable opportunity to deal with the allegations. 

[19]     There may be many bases on which jurisdiction of the Registrar could be founded.  This is particularly so in view of our developing jurisprudence on jurisdiction.[2]

[20]     It is noteworthy that the plea makes no mention of any complaint over the jurisdiction of this Court in respect of the action proceedings.  A default judgment application is simply ancillary to the action.

[21]     In any event, the passages and facts relied on in argument by Mr Schutte's counsel in support of the jurisdiction ground do not establish a lack of jurisdiction on the part of the Registrar.  They, at best, suggest that Mr Schutte has been in Australia from time to time.

[22]     In the circumstances, the jurisdiction challenge to the May 2018 judgment must fail.

Rule 42(1)(a) rescission

[23]     Rule 42(1)(a) provides that a judgment "may" be rescinded on the basis that the judgment was erroneously sought or "erroneously granted in the absence of any party affected thereby".

[24]     This rule encompasses within its remit judgments tainted by irregularity.[3]

[25]     Mr Schutte contends that the 18 May judgment was tainted by irregularity as:

[25.1]         it could not have been granted in view of:

[25.1.1]        the Rule 35(12) and (14) notice;

[25.1.2]        the plea; and

[25.1.3]        the condonation application; and/or

[25.2]         Mr Schutte was not afforded the five day notice period contemplated in rule 31(5)(a) of the Rules.

[26]     Mr Schutte's counsel submits that once an irregularity is established, the Court must set aside the 18 May judgment without more, and has no discretion to refuse the application.  In this regard, Mr Schutte's counsel drew on several cases which expressly held that an applicant for rescission who shows that a judgment has been erroneously sought or erroneously granted in the absence of any party affected thereby need not illustrate good cause for the rescission.  I shall return to this issue later in this judgment.

[27]     I do not agree that the grounds set forth in 25.1 above constitute an irregularity which results in the 18 May judgment being erroneously sought or granted.

[28]     The purpose of rule 42(1)(a) is to correct an obviously wrong judgment or order,[4] and requires proof that the judgment or order could not lawfully have been granted; that it was granted in the absence of a party and that such party's rights or interests were affected by the judgment.[5]

[29]     There is recent case authority from the Kwazulu Natal Division of the High Court which holds that the service of a rule 35(12) or 35(14) notice by a defendant does not have the effect of suspending the dies within which a plea is to be delivered.[6]  That judgment held that prior judgments of the then Cape Provincial Division should not be interpreted (as they have been by textbook writers) to mean that a rule 35(12) notice suspends the dies for delivery of answering papers.[7]  Gorven J, in Potpale Investments (Pty) Ltd v Nkanyiso Phumlani Mkhize 2016 (5) SA 96 (KZP), proposes as a remedy that the party seeking documents in terms of rule 35(12) and (14) should approach a court to obtain an extension of time in respect of the delivery of its pleadings.

[30]     For the purposes of this application, I need not decide whether there is tension between the Kwazulu Natal and Cape judgments and, if so, what approach is preferable.  In the present matter, the inspection of the documents requested occurred, and the documents were furnished, before the bar in terms of rule 26 fell.  Moreover, Mr Schutte did not object to the delivery of the notice of bar, by way of a rule 30 notice or otherwise.

[31]     The delivery of the plea was out of time.  Mr Schutte had, by that stage, been ipso facto barred under the Rules from delivering his plea.  In the absence of obtaining this Court's sanction for uplifting the bar or condonation of the late delivery of the plea, the plea was not before the Court.  I do not see how the grant of default judgment could be impugned on the basis of a belated and irregular delivery of the plea.

[32]     The existence of the condonation application is likewise not a reason that required the Registrar to refuse to grant default judgment.  Until the condonation application succeeded, it had no legal effect on Mr Schutte's default or the bar in terms of rule 26.  Mr Schutte was aware, as of 11 May 2018, that a default judgment application had been launched.  If he considered that his rights would be irreversibly imperilled by a default judgment and there were grounds of urgency, he could have brought his condonation application on an urgent basis.  The Registrar cannot be faulted for proceeding to grant default judgment because there was a pending condonation application.

[33]     The ground set forth in 25.2 above is, however, more compelling. Rule 31(5)(a) provides as follows:

          "Whenever a defendant is in default of delivery of notice of intention to defend or of a plea, the plaintiff, who wishes to obtain judgment by default, shall where each of the claims is for a debt or liquidated demand, file with the registrar a written application for judgment against such defendant: Provided that when a defendant is in default of delivery of a plea, the plaintiff shall give such defendant not less than five days' notice of the intention to apply for default judgment." (emphasis added)

[34]     Nedbank submitted that this rule does not apply to proceedings before the Registrar, particularly given that there is no "hearing" before the Registrar.  The rule, however, expressly refers to "filing with the Registrar a written application for judgment against [the] defendant".  It clearly applies to proceedings before the Registrar.

[35]     In practical terms, this means that a default judgment application should not be filed with the Registrar and the Registrar should not consider such application until the effluxion of a five day period after the service of the application on the defendant.  The purpose of the rule appears to be to afford the defendant an opportunity to take whatever steps are open to it to protect its rights to ward off default judgment being granted against it.

[36]     The five day period is reckoned in court days,[8] and "exclusively of the first and inclusively of the last day".[9]  Given that the default judgment application was served on Mr Schutte on 11 May 2018, the five day period would only expire immediately after the close of business on 18 May 2018, and the application could only be considered on the next business day, 21 May 2018.  The default judgment application was, in fact, filed by Nedbank on 16 May 2018 and considered and granted on 18 May 2018.

[37]     This constitutes an irregularity which renders the seeking or granting of default judgment erroneous.

[38]     Mr Schutte's counsel contends that the matter ends there, and that I have no discretion to refuse rescission.  I do not agree.  It is correct that, unlike a rule 31 or common law rescission, good cause need not be shown for an applicant to succeed.[10]  As held in Van der Merwe v Bonaero Park (Edms) Bpk 1998 (1) SA 697 (T)[11] ("Bonaero Park") and Tshivhase and Another v Tshivhase and Another 1992 (4) SA 852 (A),[12] however, the court plainly retains a discretion to refuse the application for rescission under rule 42, even if all the formal requirements are satisfied.  The presence of a discretion is underscored by the use of the word "may" in rule 42(1). 

 [39]    The discretion must be exercised judicially, but it is not, contrary to what was held in Mutebwa v Mutebwa 2001 (2) SA 193 (TkH),[13] "narrowly circumscribed" to deciding whether the court will act only on application by a party or mero motu in considering rescission.  Such a narrow reading is not supported by the words used in rule 42.  "May" is not limited in this fashion.  It is clear from the rule that "may" qualifies and relates to the words "rescind or vary" and not the words "in addition to any other powers it may have mero motu or upon the application of any party affected", which are written in parenthesis.  The words in parenthesis simply grant the power to the court to consider the matter either on its own initiative or on application by a party, and clarify that the power to rescind or vary is in addition to all other powers a court may have.    

[40]     The discretion is a wide one, which must be exercised with reference to all the circumstances.  Such a discretion is also in line with the High Court's inherent jurisdiction to regulate its own process (under section 173 of the Constitution). 

[41]     I shall return to the exercise of my discretion after dealing with Rule 31.

Rule 31 rescission

[42]     As held by the Supreme Court of Appeal in EH Hassim Hardware (Pty) Ltd v FAB Tanks CC [2017] ZASCA 145 (13 October 2017) ("EH Hassim"), an applicant for rescission under rule 31 must show good cause by "(a) giving a reasonable explanation for the default; (b) showing that his/her/its application is made bona fide and not made merely with the intention to delay the plaintiff's claim; (c) showing that he/she/it has a bona fide defence to the plaintiff's claim which prima facie has some prospect of success".  The last does not require the applicant to show a probability of success but merely a triable issue.[14]

[43]     The Court may, in the exercise of its discretion, refuse to grant rescission even where the above requirements are met.[15]

[44]     In my view, there are several factors pointing to an adequate explanation for the default and that the rescission application is bona fide:

[44.1]         the rule 35(12) and (14) notice was only complied with three days before the bar fell;

[44.2]         the documents still needed to be considered for the purposes of the plea;

[44.3]         Mr Schutte's attorney erroneously thought the bar expired only on 11 May 2018;

[44.4]         the delay in service of the plea and the consequent condonation application were minor;

[44.5]         the matter has not, on the whole, been one characterised by urgency on the part of Nedbank.

[45]     The prospects of success and the presence of triable issues present greater difficulty for Mr Schutte.  While Mr Schutte is not required to prove that his defences against the claim are likely to succeed, he must lay a factual foundation on affidavit which, if established by oral and other evidence, has a prospect of success at the trial.  In this regard, Mr Schutte's counsel submitted that the Plascon-Evans[16] principle was inapplicable to the averments made in the rescission application.  It seems to me that this is only partly true.  If Nedbank issuably denies a key factual averment in Mr Schutte's papers, it does not follow from that that Mr Schutte's averment must be disregarded.  That is a genuine dispute of fact ready for trial.  If, however, in the application, Nedbank puts up facts which Mr Schutte does not or cannot substantively gainsay and those facts eviscerate Mr Schutte's defence, then the Court can treat those facts as part of the evidence before it in deciding whether a triable issue has been established by Mr Schutte.

[46]     Mr Schutte's averments in respect of his defences amount to the following:

[46.1]         he does not remember signing the suretyship dated 29 July 1998 ("the 1998 suretyship");

[46.2]         he denies that the conditions precedent in the facility agreement dated 13 November 2013 ("the facility agreement") have been fulfilled.

[47]     The first ground need not entertain us long.  It was (correctly) not persisted with in oral argument on behalf of Mr Schutte in this Court.  The ground is a weak one.  Mr Schutte does not aver that he did not sign the suretyship, but simply that he cannot recall doing so.  In the face of the clear factual assertion on behalf of Nedbank that the suretyship was signed by Mr Schutte, there is no dispute on the papers in this respect.

[48]     At first blush, the second ground also appears questionable.  Mr Schutte's assertion of a lack of fulfilment of conditions precedent is a bald, unsubstantiated and unparticularised one.  He states as follows in his founding papers in this respect:

                        "[the facility agreement] is subject to certain conditions precedent.  As         set out in my plea, I deny that such conditions have been fulfilled,          alternatively that they have been waived by [Nedbank]."

[49]     In response, Nedbank not only denies Mr Schutte's assertion, but also avers that Mr Schutte has now been provided, pursuant to the Rule 35(12) and (14) notice, with all the documentation which establishes the fulfilment of each condition precedent in the facility agreement.  Each of the relevant documents is then attached and described.  This is thus a detailed response to the bald averment made by Mr Schutte.

[50]     In reply, Mr Schutte does not deny the averments made by Nedbank in paragraph 49 above, but simply "notes" them.

[51]     Without more, that would ordinarily have been the end of the enquiry and this defence of Mr Schutte would also have to be disregarded.  Ms Hassim SC, however, submits that there is further nuance to the defence, concerning Mr Schutte's suretyship in particular.

[52]     Mr Schutte's suretyship was plainly a condition precedent to the facility agreement coming into force.  Nedbank relies on the 1998 suretyship as the document required by the conditions precedent in terms of the facility agreement.  It points out that, in its terms, the 1998 suretyship imposes continuing security obligations on Mr Schutte, intended to cover extant and future principal obligations incurred by, inter alios, JCS Human Dynamics (Pty) Ltd ("JSC Human").  Ms Hassim SC, however, submits that it must have been contemplated by the parties that there would be a new suretyship signed for the facility agreement postdating the signature of that agreement, and reliance could not simply be placed on a document concluded 15 years earlier.  Ms Hassim SC relies on three paragraphs in the founding affidavit to ground that assertion.  Mr Schutte states as follows in those paragraphs:

                   "I cannot fathom that I would have signed a deed of suretyship for an unlimited amount for the fulfilment of obligations of an entity in circumstances where its obligations were embodied in a written instrument twelve years after the conclusion of the alleged deed of suretyship.

                   Certainly, if the suretyship dated 1998 had been in existence at date of signature of [the facility agreement - or its predecessor dated 2010], then the agreement would have referred to such particular suretyship and would probably not have required a suretyship to be concluded for the agreement to come into being.

                   The inference to be drawn with reference to the wording of [the facility agreement], is that no suretyship existed in terms whereof I had bound myself as surety in favour of [Nedbank] as at 2013."

[53]     Ms Hassim SC also submits that there would have been no point to the facility agreement mentioning a suretyship as a suspensive condition if it had already been fulfilled.  The facility agreement, it is further argued, would probably have mentioned the 1998 suretyship, had it been intended to fulfil the condition.

[54]     The founding affidavit is not a model of clarity, but Mr Schutte's substantive objection appears to be that the 1998 suretyship either fell away before the facility agreement was concluded or cannot be used as the document satisfying the requirements of an agreement concluded in 2013 and that the full assessment of the factual matrix and a proper interpretation of the facility agreement will illustrate this.

[55]     Mr Schutte, as an alleged bearer of accessory obligations, can, theoretically, rely on any defence which would have been open to JSC Human as the principal debtor, except those defences which are personal to the principal debtor.[17]  I have doubts about the prospects of Mr Schutte's remaining defence.  Not only does the wording of the 1998 suretyship and the facility agreement not, on its face, exclude a condition precedent having been fulfilled prior to the date of the facility agreement, but, as Nedbank points out, the facility has, in fact, been advanced by Nedbank and used by the principal debtor.  What adds weight to this argument is that Mr Schutte was directly or indirectly in control of the principal debtor in this case.  This suggests that the parties to the facility agreement and Mr Schutte accepted that the facility agreement came into force.  From a legal perspective, however, if one of the conditions precedent in an agreement is not fulfilled, the agreement does not come into being, notwithstanding that the parties may have performed ostensibly in terms thereof.[18] 

[56]     I note further that Nedbank has accepted that the facility agreement envisaged a "reaffirmation" of the suretyship.  It contends that this reaffirmation was complied with by the delivery of the suretyship on 29 July 1998, some fifteen years prior to the conclusion of the facility agreement.  This is a possible construction, and our courts have accepted that "it is not essential that the principal obligation exists at the time when the suretyship contract is entered into."[19]  But I do not think that I can conclude on the papers that this is the only construction to be placed on the instruments.  The question is ultimately one of interpretation in light of all admissible context.

[57]     This is not the trial court.  Ordinarily, it is difficult to determine matters of interpretation on (essentially) an exception basis.[20]  The factual matrix, and full argument on the proper construction of the facility agreement and the 1998 suretyship, may well lead to a conclusion which supports Mr Schutte's contractual interpretation.  As Megarry J remarked in John v Rees,[21] "[a]s everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."

[58]     While Mr Schutte's defence is not entirely convincing and the terms of the suretyship appear to cover ongoing legal obligations, it is conceivable that the trial court may conclude that, on a proper interpretation thereof in light of admissible facts, the facility agreement never came into force or that the 1998 suretyship was not applicable to it.  If this is the case, the accessory obligation of a surety would not arise.

[59]     I conclude thus, that Mr Schutte has made out a bona fide defence which prima facie has some prospect of success.

Discretion

[60]     Notwithstanding the above, both in the case of a rescission under rules 31(2)(b) and 42(1)(a) of the Rules, the Court retains a wide discretion to refuse rescission.  Relevant factors to be taken into account in exercising the discretion may, without limitation, include:

[60.1]         whether there is a triable issue between the parties, or whether the rescission would be an exercise in futility;

[60.2]         the nature, extent and materiality of the irregularity (relevant only to rule 42);

[60.3]         whether the irregularity caused a party not to be represented at the hearing (relevant only to rule 42);

[60.4]         past and potential future delays in the proceedings and any delays in the applicant pursuing its rescission application;

[60.5]         the importance of the matter to the parties;

[60.6]         whether rescinding the judgment will serve the interests of justice;

[60.7]         any evidence of abuse of process.

[61]     In this regard, while there is no onus on the defendant to establish that he/she/it has a potential/arguable defence on the merits at this stage of the enquiry, it is nevertheless relevant to a Judge asked to exercise his/her discretion as to whether to rescind, to ascertain whether there is a serious issue to be tried.  If there is no such issue, then the court may justifiably be inclined to refuse rescission.[22]

[62]     It seems doubtful that affording Mr Schutte the full five days contemplated in rule 31(5)(a) of the Rules would have made any difference.  After all, there is no evidence that he or his attorneys took any steps to prevent default judgment being granted right up to the date that they first came to know of the 18 May judgment, on 28 May 2018.  Thus, while being unaware of the 18 May judgment, and after the five day period expired on 18 May 2018, Mr Schutte did not act to forestall default judgment between 18 and 28 May 2018. 

[63]     Similarly, Mr Schutte's defence, while plausible, is not very strong both on the pleadings in the action and this rescission application.  He does not cite any meaningful context which is intended to corroborate his case.

[64]     I am, however, mindful that the overarching purpose of rescission in these circumstances is to allow triable issues with a prospect of success to be ventilated in action proceedings.[23]  In this regard, courts should err on the side of permitting issues to be tried even where the probabilities are not clearly in a defendant's favour, while weeding out plainly uncreditworthy defences, particularly those which are designed to or have the effect of unduly delaying the enforcement and final adjudication of a plaintiff's claim.

[65]     I cannot conclude on the papers that Mr Schutte's defence is simply a dilatory tactic.  Over two years have passed since Nedbank instituted the action.  Much of that time has been occupied by this rescission application.  The application was, however, instituted promptly after the 18 May judgment came to Mr Schutte's attention.  Prior to the 18 May judgment being granted, there were substantial delays caused in part by a failure on the part of Nedbank to furnish documents to Mr Schutte pursuant to the Rule 35(12) and (14) notice.

[66]     Although the papers in the summary judgment application are not before me, it is not entirely without significance that Mr Schutte was given leave to defend by Nedbank after he delivered his affidavit opposing summary judgment.

[67]     The case now presented by Mr Schutte may, if successful, constitute a complete defence to Nedbank's claim against him.

[68]     On balance, and while there is force in Nedbank's submissions that Mr Schutte's defence is doubtful and has not been set forth on affidavit with the clarity that one would have expected, in the exercise of my discretion, I am inclined not to shut the door on Mr Schutte, given that his defence has some prospect of success as a complete defence to Nedbank's claim.

Costs

[69]     Mr Schutte's counsel submitted that Nedbank behaved in an unacceptable fashion, put Mr Schutte to unnecessary expense and should have consented to rescission long ago.  In view of all the circumstances, Ms Hassim SC submitted that a punitive costs order should be issued against Nedbank.

[70]     On the other hand, Mr Roux SC, on behalf of Nedbank, submitted that, as Mr Schutte seeks an indulgence, costs of this rescission application should be borne by Mr Schutte, irrespective of whether he is successful in rescinding the 18 May judgment.

[71]     In my view, given the history of the matter and the above facts and circumstances, Nedbank acted reasonably in seeking to defend the default judgment granted in its favour.  Mr Schutte's defence, for the most part, (both on affidavit and in the plea) consisted in bald denials.  Most of the grounds on which Mr Schutte sought to base his defence have been abandoned or were found to be without merit.  The rule 31(5)(a) "five-day point" was introduced belatedly, in August 2019.  In any event, there is substantial doubt that had Mr Schutte been afforded the full five-day period, this would have made any difference to his conduct.  The "jurisdiction point", which was introduced on the morning of the hearing, was unsupported by averments in the record of the application, and was without merit.

[72]     Mr Schutte's papers in this application are voluminous but for the most part without substance.  Mr Schutte's solitary remaining substantive defence to Nedbank's claim prima facie has some prospect of success, but is of doubtful merit.

[73]     In these circumstances, there is every reason not to make any orders of costs against Nedbank at this stage.  It seems to me appropriate that the costs of this application should suffer the fate of the main action instituted by Nedbank (and Mr Schutte's defence therein).

The dies in terms of Rule 31(5)(a)

[74]     It is apparent from what is said earlier in this judgment that I have come to the conclusion that rule 31(5)(a), in cases where a defendant is in default of the delivery of the plea, requires five clear court days' notice to be given by an applicant for default judgment to its opponents before making such application to the Registrar.

[75]     This means that the applicant should ordinarily wait for five court days to expire after service of the application on the respondent, before filing the application with the Registrar's office.  Irrespective of when such application is filed, however, the Registrar must, in any event, not consider or make a decision on the application before he/she is satisfied that the application was served on the respondent/defendant and that a five court day period has elapsed since service.

[76]     Given the circumstances of this case, and the need to ensure that irregularities of the type described above do not recur, I shall direct that a copy of this judgment is brought to the attention of those officials in the Registrar's office who deal with default judgment applications.

Order

[77]     I thus make the following order:

[77.1]         The default judgment granted by the Registrar on 18 May 2018 is rescinded;

[77.2]         The costs of the rescission application delivered by Mr Schutte on 15 June 2018 shall be costs in the cause of the main action proceedings instituted by Nedbank Limited under case no 73759/2017;

[77.3]         The Registrar of this Court is directed to bring this judgment (and paragraphs 35, 36, 74 to 76 hereof in particular) to the attention of all officials in the Registrar's office who deal with default judgment applications.

 

 

 

 

VM MOVSHOVICH

ACTING JUDGE OF THE HIGH COURT

 

 

APPLICANT'S COUNSEL                      S Hassim SC  

 

APPLICANT'S ATTORNEYS                  Manley Inc (D Manley/WO/S4152)

                                                                        Pretoria

 

RESPONDENT'S COUNSEL                 J Roux SC

                          

RESPONDENT'S ATTORNEYS            Weavind & Weavind Inc (N Viviers/N24128)

Pretoria

                         

 

DATE OF HEARING                                20 NOVEMBER 2019

DATE OF JUDGMENT                            13 DECEMBER 2019

 

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