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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

(EASTERN CAPE DIVISION – PORT ELIZABETH)       

CASE NO.: 934/2010

In the matter between:

ANDREW CHARLES JORDAAN                                                                               Applicant

And

BLUE DOT PROPERTIES 310 (PTY) LTD                                                            Respondent

JUDGMENT

BESHE, J: 

[1] Judgment was granted in favour of the respondent in this matter for payment of a sum of R6 595 423.70 as well as interest thereon, against the applicant and two other defendants in the matter. Judgment was granted on the 3 June 2010. The first defendant was Sapphire Dawn Trading 154 CC, the third defendant were the Trustees for the time being of the Andrew Jordaan Family Trust. Sapphire Dawn Trading has since been deregistered. Applicant is the only trustee of the Andrew Jordaan Family Trust. That is the reason given for the other two defendants not being cited as applicants in this matter. The second and third defendants had bound themselves as sureties and co-principal debtors with the first defendant (for first defendant’s debts).

[2] In his founding affidavit, applicant states that it was only on the 13 May 2013 that it came to his knowledge that the judgment sought to be rescinded was granted against him (paragraph 14 of the founding affidavit). At paragraph 18 he states that he was not aware of the institution of the action in question until he was alerted by his wife to the default judgment on the 13 May 2013. He was also not aware of the fact that summons had been served upon him.

[3] It is trite that where judgment is granted against a party in respect of whom notice of proceedings was required, and in the absence of such notice, such judgment is granted erroneously. See Lodi 2 Properties Investment CC and Another v Border Developments (Pty) Ltd 2007 (6) SA 87 (SCA) at paragraph 24.

[4] However, the answering affidavit deposed to by a director of the respondent, Heinrich Tertius Bruyns demonstrates the following:

Applicant chose the address, [.....] Street, Newton Park, Port Elizabeth as his domicilium citandi et executandi. Service of summons was effected at the said address. Applicant’s former wife, Ms Chrissie Jordaan deposed to a confirmatory affidavit wherein she states that she handed a copy of the summons to the applicant shortly after the service thereof on the 8 April 2010;

Five days after the service of summons, applicant sent an email to the deponent in which he acknowledged receipt of the summons and requested him to hold the action over. (copy of the email annexed as BD3). Needless to say respondent was not amenable to holding the action and default judgment was obtained. After which on the 7 July 2010 an email advising of the default judgment was sent to applicant’s then attorney of record, to which the judgment was attached. In June 2010 still, a number of movable items were attached from the possession of the applicant, the sale of which was advertised in the local newspaper, and later sold. Applicant also took steps to make part payment of the judgment debt.

[5] In the face of all these allegations by the respondent, applicant did not file replying affidavit. It is not surprising that in the heads of argument and argument before me, applicant does not seem to be persisting with this ground for the rescission of the judgment, but on the ground namely that: The particulars of claim in the relevant action are excipiable as failing to disclose a cause of action, in that there is no suggestion in them to the effect that the relevant suspensive conditions have been fulfilled. That bearing in mind the fact that the relevant suspensive conditions were not fulfilled, there is no prospect whatsoever that, had the action been defended, a judgment such as was given by default, would have been handed down. (paragraph 26 of the founding affidavit). This ground was raised as one of the requirements for rescission of a default judgment application, namely to show that applicant has a bona fide defence. This is also apparent from paragraph 27 of the founding affidavit which reads:

“27. In all the abovementioned circumstances, I respectfully submit that:-  

27.1 my failure (and the failure of the other Defendants) to enter an Appearane to Defend timeously in respect of the action concerned, was not due to any neglect or negligence on their part, but came about simply as a result of the fact that the institution of the action, and the service of the Summons in respect thereof, on the Defendants never came to the attention of any of the Defendants.

27.2 the Defendants concerned, and myself in particular, have a bona fide defence to the Respondent’s claims advanced in the action concerned, on the grounds set forth above.”

[6] It is clear that the first two requirements: absence of wilfulness on the part of the applicant and reasonable explanation for the default have not been met by the applicant. (Rule 31(2) (b)). It was later, after the filing of the answering affidavit that applicant appears to, as Mr Wagener for the respondent argued, be changing tack to rely on Rule 42 (a) in argument. Applicant’s counsel Mr Dyer, countered this argument by submitting that the court is at liberty to use any of the dispensations to grant a rescission against judgments. Whether it be Rule 31 (2) (b), Rule 42 (1) of the Uniform Rules or under Common Law. In this regard I was referred to the matter of Mutebwa v Mutebwa and Another 2001 (2) SA 193. In this matter it was held that a judgment can be set aside in terms of Rule 31 (2) (b) or Rule 42 (1) or under Common Law. The fact that an application was brought in terms of one Rule does not mean that it cannot be entertained in terms of another Rule or Common Law, provided that the requirements thereof are met (see headnote). Importantly however, Jafta J at paragraph 20 of his judgment states the following:            

“[20] I agree that the error should appear on the record but only in cases where the Court acts mero motu or on the basis of an oral application made from the Bar for rescission or variation of the order. For obvious reasons, in such cases the Court would have before it the record of the proceedings only. The same interpretation cannot, in my respectful view, apply to cases where the Court is called upon to act on the basis of a written application by a party whose rights are affected by an order granted in its absence. In the latter instance the Court would have before it not only the record of the proceedings but also facts set out in the affidavits filed of record. Such facts cannot simply be ignored and it is not irregular to adopt such a procedure in seeking rescission. In fact, it might be necessary to do so in cases such as the present, where no error could be picked up ex facie the record itself. In my view, the failure to show that the error appears on the record of the proceedings before Kruger AJ cannot constitute a bar to the applicant being successful under Rule 42(1) (a). It is not a requirement of the Rule that the error appear on the record before rescission can be granted. Therefore, I do not, with respect, agree with Erasmus J’s conclusion that the Rule requires the applicant to prove the existence of an error appearing on the record ant that the Court considering rescission is, like an appeal Court, confined to the record of the proceedings.”

[7] By necessary implication in my view, this applies to respondents’ case. In other words I am entitled to consider evidence regarding the impugned pleadings and not be confined to the record of the proceedings in respect of the default judgment only. I will therefore also have regard to the contents of affidavits filed by the respondents in this regard, to which it must be recalled, there is no reply.

[8] It is common cause that the suspensive conditions concerned are:     

1. That Sapphire Dawn Trading 154 CC and the respondent are able to arrange a lease on terms and conditions no more onerous that those enjoyed by the respondent from Engen, to commence from 1 May 2009, and

2. That Engen approve of the terms and conditions of the sale agreement, as well as of Sapphire Dawn Trading 154 CC as purchaser and the applicant as debtor.

[9] Respondent denies that these suspensive conditions were not met. It is contended on behalf of the respondent that the suspensive conditions did not require that the lease concerned should be in writing, nor did it require that the approval by Engen of Sapphire Dawn Trading 154 CCC and / or the applicant should be in writing. It is contended further that “Sapphire Dawn Trading 154 CC (first defendant in main action) and the respondent were able to arrange a lease on terms and conditions no more onerous than those enjoyed by the respondent at the time, in that Engen agreed to Sapphire Dawn Trading 154 CC occupying and operating the premises as from 1 May 2009 on the very same terms that the respondent was then leasing the premises concerned.” (paragraph 18.6 of the answering affidavit).

[10] The above appears to be confirmed by the following conduct on the part of the applicant which has become undisputable:

He became aware that summons in this matter were issued against him and his co-defendants, he however did not take steps to oppose the matter. This resulted in the default judgment sought to be rescinded. Steps were taken by the respondent to enforce the judgment – (attachment and sale of goods). Applicant offered or agreed to certain property being sold as partial satisfaction of the debt. It has taken the applicant approximately three years to apply for the rescission of the judgment. He failed to file a replying affidavit in the face of a comprehensive answering affidavit. This led to respondent enrolling the matter for hearing and serving the applicant with the notice of set down.

Mr Wagener argued that applicant’s actions are an indication of a lack of bona fides on his part and on the part of the defence raised. I am inclined to agree with Mr Wagener. In my view this is a clear indication that the applicant does not have a bona fide defence to the claim. Had that not been the case, he would not have tried his luck by trying to mislead this court into believing that the summons did not come to his attention.

[11] In paragraph 6.15 of the particulars of claim respondent (plaintiff in the main action) states that “The agreement was subject to plaintiff and first defendant being able to arrange a lease on terms and conditions no more onerous than those enjoyed by the plaintiff at the time of signature of the agreement from Engen ... ... .” At paragraph 7 respondent avers that: “With the exception of paragraph 6.9.6 above the plaintiff has duly complied with all its obligations in terms of the aforesaid written agreement ... ... .” I do not understand how it can be said that the particulars of claim fail to disclose a cause of action and are therefore excipiable. In my view the requisite allegations were made in the summons.

[12] In the circumstances, I am unable to find that the judgment was erroneously granted. In my view the application for rescission is not bona fide but is made with the intention of delaying plaintiff’s claim.

[13] Accordingly the application for the rescission of the judgment granted on the 3 June 2010 is dismissed with costs.     

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N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicants               :               Adv: E Dyer

 

Instructed by                        :               KUBAN CHETTY INC.

                                                                2^nd Floor, FNB Building

582/6 Govan Mbeki Avenue

North End

                                                                PORT ELIZABETH             

                                                                Tel.: 041 – 585 3363

                                                                Ref.: K Chetty/ce/CJ48

For the Respondents           :               Adv: S D Wagener SC

 

Instructed by                        :               BROWN BRAUDE & VLOK INC

                                                                317 Cape Road

                                                                Newton Park

                                                                PORT ELIZABETH             

                                                                Tel.: 041 – 365 3668

                                                                Ref.: VLOK/MS

 

Date Heard                            :               15 May 2014

Date Reserved                      :               15 May 2014                         

Date Delivered                      :               28 October 2014     

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