REPORTABLE JUDGMENT

IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case No: 27659/2010

In the matter between:
TOWER CONSTRUCTION 						Applicant

and
ANNEKE VAN DER WALT 						First Respondent

Instructing Attorneys
Counsel for Respondent 						Adv. Barthus
Date of Hearing 							31 October 2012
Date of Judgement 							20 November 20112

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 27659/012
In the matter between:

TOWER CONSTRUCTION CC				Plaintiff/Respondent
versus

JUDGMENT DELIVERED ON 20 NOVEMBER 2012

MANSINGH, AJ

[1[ This is an application in terms of Rule 31(2)(b) of the Uniform Rules of Court for the rescission of a default judgment granted on 10 July 2012, by Henney J.

[2] The respondent sued the applicants jointly and severally for R907 147,20 for building work completed by the respondent to the applicants’ eight roomed guest house. The amount claimed is the total sum per the final payment certificate.
[3] Summons was served on the applicants on 23 December 2010 and a Notice to Defend received on 12 January 2011.

[4] The Respondent did not pursue its application for summary judgment and removed it from the Roll on 15 February 2011.

[5] The applicants failed to file their plea. A notice of bar was served on 14 May 2012. Consequently applicants were barred in terms of the Rules on 21 May 2012. Applicants’ plea was filed on 24 May 2012.
[6] It is clear that there was no agreement between the parties for an extension of time for the late filing of the plea.
[7] When applicants’ attorney requested an extension, they were told that the Respondent would not consent thereto.
[8] Applicants’ submitted that they made an assumption that the Respondent consented to an extension based on the fact that there was no reply to their written request for an extension. The written request had though inadvertently been sent to the incorrect email address but had not been returned to sender as the incorrect address was a valid email address.
[9] Respondent submitted that this contention was flawed and implausible considering that Applicants’ had specifically requested a response to their letter for an extension of time. If anything, Respondent’s non-reply could only have been construed as a refusal to consent to an extension. Further, the Notice of Bar was served on 14 May 2012 and would have dispelled any mistaken belief.

[11] The reason proffered by Applicants’ attorneys of record for failing to attend to the Rule 31(5)(a) application is that the attorney was on leave.
[12] Default judgment in terms of Rule 31 (5)(a) was granted on 10 July 2012. 

[13] The requirements for the removal of bar and rescission of judgment are similar, in that applicant must provide:
13.1 a satisfactory explanation for the delay;

[15] In terms of Rule 31(2)(b) a court will on “good cause shown” grant the rescission of a default judgment.

[17] It was conceded by the respondent and correctly so, that the applicants cannot be held liable for the negligence of their attorney for failing to file the plea timeously or attending to the Rule 31(5)(a) application.
[18] Accordingly, that disposed of this leg of the argument.
[19] To succeed in its application, applicants need then only satisfy the second leg of the Rule, namely a good defence.

[20] Respondent submitted that since the bar had not been removed prior to this application for rescission, the Plea and Counterclaim are in principle not before this Court. Consequently, it is essential that the defence must be set out in the application for rescission as required by the Rule.
[21] Respondent submitted that the defence was not contained in the application for rescission. Further, that in any event, the plea amounts to a bare denial and the counterclaim alleging defective workmanship, is wholly unsubstantiated. In shock, respondent contends that it is a fabrication in bad faith to frustrate the respondent’s relief.
[22] Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (0), set the test in applications for rescission of default judgments as:

[25] Respondent then submitted that the case of Brangus supra, has now raised the bar for the test in rescission of default judgments, in that, there must now be a “substantial defence”.

[29] Hence, the judgment does not raise the bar. There is no issue of the standard of the test but a mere application of the test, in circumstances, that not even a bald statement was made to the defence sought to raise.

And at 575-576 para 12, which reads:

[32] In my view the test is now more lenient than before. A more lenient test also accords with the values of a constitutional era, specifically access to courts and to prevent the possible injustice of a judgment being executed where it should never have been taken in the first place.

[33] The applicants’ founding affidavit in the application for rescission specifically states at para 15, that the applicants’ defence is fully set out in their Opposing Affidavit to the Summary Judgment Application and in their Plea and Counterclaim dated 21 May 2012, and filed on 24 May 2012. That the court is referred to the contents of those documents and the contents are incorporated into the affidavit for the application for rescission of default judgment.
[34] Further, at para 16 of the founding affidavit for the rescission application, the applicants refer to the Special Plea which states that the dispute ought in terms of the building agreement, to be referred to arbitration. This aspect is also raised in para 8 of the Opposing Affidavit to the Summary Judgment Application.
[35] The Opposing Affidavit to the Summary Judgment Application and the Plea set out that there was an ongoing dispute since 2008 on the defective workmanship.

[37] The documents also raise the defence that clause 34.5 of the Principal Building Agreement was not complied with in that as no certificate of final completion had been issued, the respondent is not entitled to the issue of a final payment certificate. That as the work is defective a certificate of final completion has not been issued. As such the respondent is not entitled to payment.

[39] Respondent submitted that the arbitration clause is not applicable as the clause regulates disputes arising from building work and not the recovery of debt. In any event, applicants are now prepared to submit themselves to the jurisdiction of this Court.
[40] Respondent also contended that clause 34 is not applicable as it is suing on a contractual debt and this Court has jurisdiction to hear the matter.
[41] It is clear from the papers that applicants displayed a firm intention to defend this matter at all times and took steps to do so.
[42] The Plea and Counter-Claim was filed a mere three days after the Notice of Bar and such delay was not owing to any fault on the part of the applicants.
[43] The failure too to attend to the Rule 31(5)(a) Application was owing to no fault on the part of the applicants.

[45] The following order is made.

IT IS ODERED THAT:

1. The default judgment granted against the applicants by this Honourable Court under case number 27659/2010 on 10 July 2012 is rescinded;
2. The Notice of Bar for the filing of a Plea, under which the applicants have been placed, the dies of which expired on 21 May 2012, is removed;
3. The applicants’ Plea and Counterclaim dated 21 May 2012 and delivered on 24 May 2012 is hereby received by this Honourable Court.
4. Respondent to pay the costs of this application.
MANSINGH, AJ