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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

NOT REPORTABLE CASE NO: 14848/05

DATE: 31/7/2007

In the matter between:

BARRY DU PLESSIS FIRST APPLICANT

HESTER DU PLESSIS SECOND APPLICANT

AND

QUEEN MJWARA FIRST RESPONDENT

DUMISANI NENE SECOND RESPONDENT

JUDGMENT

MAVUNDLA, J.,

[1] The applicants approach this Court to have a summary judgment granted against them on the 27 September 2005 rescinded and that they be granted leave to defend the matter and that all execution steps be suspended. The notice of motion did not state whether the application is being brought in terms of Rule 31(2)(b), or in terms of rule 42 or in terms of common law. The application is being opposed.

BACKGROUND FACTS.

[2] The first and second respondents issued summons against both the first and second applicant through this Court under case number 14848/2005. According to the particulars of claim the parties had entered into an oral agreement in terms of which the defendants (the applicant in casu) sold a Bar- Restaurant with the name of Café-X-Treme situated at the shop number 120 Sunny Park Centre Pretoria . Some of the terms of the agreement were that the plaintiffs (the respondents in casu) would pay an amount of R385 000, 00 as a purchase price. The business was being purchased as a going concern and for the acquisition of the goodwill of the business, the trading name, the liquor licence and all equipment, furniture, fixtures, decorations and appliances in the shop. The plaintiffs would take occupation of the shop during November 200 and commence trading on the 17 November 2004. All the equipment, machinery and appliances in the shop were to be in a working order and the Defendants were to supply the plaintiffs with an “electricity compliance certificate” when the plaintiffs take occupation of the business premises.

[3] It is further alleged that when the plaintiffs took occupation of the premises, the ice making equipment was not functioning, the defendants had removed the business’ coffee machine and they failed to provide the electricity compliance certificate. The plaintiffs had paid the defendants a total, amount of R375 000, 00 by way of cheques as part payment of the purchase price.

[4] In respect of claim A the Plaintiffs on the 16 November 2005, on the eve of trading by them, the defendant cancelled the agreement. As the result of such cancellation, the plaintiffs stopped the transfer of the funds on the cheques in to the defendants’ account in the total amount of R 207 672,00. An amount of R167 328,00 is still held by the defendants as part of the payment of the purchase price. The Plaintiffs accepted the cancellation of the agreement. Despite demand the defendant refuse to pay to the plaintiffs the amount of R167 328,00.

[5] In respect of claim B the plaintiffs, in contemplation of trading purchased perishable stock consisting of food and snacks in the amount of R5000,00, which stock became redundant as a result of the cancellation and plaintiffs disposed of it. As the result the plaintiffs suffered damages in the amount of R5000,00.

[6] Claim C is in respect of damages suffered by the plaintiffs in the amounted to R1400,00 being expenses they incurred for the removal and cleaning e of the carpets in the shop, and in respect of Claim D damages in the amount of R1500,00 being in respect of salaries for services rendered in preparation for trading, which amount became a superfluous expenditure as the result of the cancellation of the agreement. The sum total of the amount claimed is therefore R175 228,00.

[7] The summons under case number 14848/2005 were served upon the applicants on the 10 August 2005. The applicants gave instructions to their attorneys of record to defend the matter. A notice to defend was duly served and filed on the 16 2005. An application for summary judgment was served on the applicants’ attorneys of record . There was no opposing affidavit filed. On the 27 September 2005 summary judgment was granted against both the applicants. It is this summary judgment the applicants seek to have rescinded.

[8] There are procedural issues that I first need to deal with. These issues relate to the filing of the opposing affidavits of the respondents as well as the filing of the replying affidavits of the applicants. It is contended on behalf of the applicants that the opposing affidavits have been filed out of time and that there is no explanation why they have been filed out of time nor is there an application for condonation sought therefore I should disregard the said answering affidavit. Of course, it stands to reason that if I uphold this submission, then question of filing of the replying affidavit will fall away, because the replying affidavit can only be filed consequent to an answering affidavit. On the other hand, if I find that the answering affidavit is indeed out of time, but, in the exercise of my judicial discretion, I accept the answering affidavit, I must then decide whether the replying affidavits must be allowed to stand, having regard to the explanation proffered for such late filing of the said answering affidavits.

[9] The applicants in their founding affidavits, in raising a point in limine, they state that the opposing affidavit to the application for rescission was served with their attorneys of record out of time and that there is no condonation application for the late filing of this opposing affidavit. The application for the rescission of judgment was served on the respondents’ attorneys of record on the 28 November 2005 while the opposing affidavit was only served on their attorneys of record on 7 February 2006. They further point out that there was no notice of intention to oppose filed, save for the answering affidavits.

[10] On behalf of the applicants there are two sets of heads of arguments submitted. The first heads of argument are titled “ First and Second Applicants’ Heads of Argument” and were filed with the registrar of this Court on the 7 June 2007. The second heads of argument are titled “Applicants’ Supplementary Heads of Argument” and these are dated the 8 June 2006. In the first set of their heads of argument the applicants contend that the application is brought in terms of the provisions of Rule 31(2)(b) of the Uniform Rules of Court. It is contended in these heads that there is no substantial application for condonation for the late filing thereof accompanying the opposing affidavit. The application for rescission was served on the 28 November 2005, the filling of the opposing affidavit is two months and ten days out of time and that such a long delay is not reasonable and cannot be condoned. They further point out that the opposing affidavits were signed on 23 December 2005.They further submit that the dies non set out in Rule 19(1) does not save the respondents in this regard as this is not an action the dies non to Defend is only applicable to a Notice of Intention to Oppose and that even if had been filed, the respondents would still have had to deliver their opposing affidavits on or before 26 December 2005.

[11] Both Rule 31(2)(b) and Rule 42(2) which deal with applications for rescission of judgment, do not provide the time frames within which a notice of an intention to defend as well as the opposing affidavit must be filed.

11.1. Rule 31(2)(b) provides that:

“ A defendant may within twenty days after he or she has knowledge of such a judgement apply to court upon notice to the plaintive to set aside such judgement and the court may, upon good cause shown, set aside the default judgment on such terms as to it seems meet.

11.2. Rule 42.2 provides that:

“Any party desiring any relief under this rule shall make application therefore upon notice to all parties whose interest may be affected by any variation sought.”

[12] Both these rules are silent as regards the filing of a notice of intention to defend/oppose. However, there is Rule 6 which specifically deal with applications. Rule 6(2) prescribes that the notice of motion shall be addressed to the registrar and such person against who relief is sought. Rule 6(5)(a) demands that such an application must be served upon the other person. Rule 6(5)(b) demands of the applicant to specify a date on which the other party must give a notice of his intention to oppose the application, and such date must not be less than 5 days from the date of such service of the application on such other party. Rule 6(5)(d) demands of the other person who intends to oppose such an application to file his answering affidavit within 15 days from the date upon which he gave his notice of intention to oppose the application. Rule 6(5)(e) demands of the applicant to file his replying affidavit within 10 days from the date of filing of the answering affidavit.

[13] In the matter of Republikeinse Publikasies (EDMS.) v Afrikaanse Pers Publikasies (EDMS)¹ Rumpff AJ in dealing with Rule 6(5)(b),(c),(d),(e) and(f) pointed out that the obligations prescribed by Rule 6 must be complied with.

[14] The notice for the application for rescission was served upon the respondents’ attorneys of record on the 28 November 2005. However, the notice was defective in that, save for stating that the application will be on the 12 January 2006, it neither complied with Rule 6(5)(b) because it did not indicate when must the respondents file the notice of intention to defend, nor did it comply with Rule 6(5)(d) in that it failed to specify when an answering affidavit must be filed.

[15] In my view, because of the defects that I have herein above pointed out, it could not have been expected of the respondents to comply with Rule 6(5)(b) and (e) since the notice was silent in regard to the time frames.

[16] In the works of Erasmus, Superior Court Practice, the learned authors point out that the definition of the words ‘civil summons’ in s.1 of the Supreme Court Act 59 of 1959 “contemplates two classes of persons who may be affected thereby, viz a person against whom relief is sought (i.e the actual defendant or the respondent to an application) and a person who is interested in resisting the grant of relief (i.e creditors or other person who may be called upon to ‘show cause’ why a certain relief should not be granted).

The wording of the definition indicates that a civil action commences with a summons or a notice of motion or petition which have the object off demanding the appearance of a person in court.”

[17] Rule 19(1) provides that:

“Subject to the provisions of s 27of the Act, the defendant in every civil action shall be allowed ten days after service of summons on him within which to deliver notice of intention to defend, either personally or through his attorney: provided that the days between 16 December and 15 January, bought him to receive, shall not be content the time allowed within which to deliver a notice of intention to defend.”

[18] In the light of the fact that the definition of civil summons includes a notice of motion, and in the absence of time frames having been specified in accordance of Rule 6(5)(b) and (e), in such circumstances the application falls to be governed by the time frames prescribed by Rule 19(1) provision .

[19] The notice of the application for rescission was served on the 28 November 2005. It is common cause that there was no notice of intention to defend or oppose the application filed by the respondents. It is also common cause that the opposing affidavits were only filed on the 7 February 2006.

[20] In the matter of Gisman Mining (In Liquidation) v L.T.A Earthworks ² the Court was dealing with the question of the filing of answering and replying affidavit in an interlocutory application in terms of Rule 6(11), the fact that there are no time frames indicated as to when such answering affidavit and replying affidavit must be filed, that does not mean that the applicant has unlimited time to file his replying affidavit, such must be filed within a reasonable period, and that such reasonable period would certainly not be longer than the period would not be longer than the time prescribed in Rule 6(5)(e). As I have indicated that, in casu the time frames would have to be determined in terms of rule 19(1), there was no filing of the notice of intention to defend/oppose, and the answering affidavit was filed on 7 February 2006, it cannot be said that such such answering affidavit was filed within reasonable time. Even if I could have exercised my discretion to admit the late filing of the answering affidavit, such discretion must be premised on facts placed before me, explaining the failure to have the answering affidavit filed in time. The fact that there would be no prejudice, on the part of the applicants, were I to allow the answering affidavit to stand, that fact cannot stand alone, especially when it is marshalled over the bar, without any formal application for condonation.

[21] I am of the view that the point in limine was well taken. It therefore means that the application for rescission has to be dealt with as if it was an unopposed application. But of course, where necessary, where necessary I shall have regard to the evidince that has been placed before me.

[22] In the supplementary heads of argument filed on behalf of the applicants, it is stated that an application for rescission of a summary judgment can not be brought in terms of Rule 31(2)(b), it can only be brought in terms of Rule 42 or in terms of the common law.

[23] The applicants have referred me to the matters of Louis Jose Motors (Pty) Ltd v Riholm³; Sundra Hardware v Macro Plumbing⁴.

[24] In the matter of Sundra Hardware v Macro Plumbing (supra) the Court on appeal stated referring to the matter of Louis Joss Motors (Pty) Ltd v Riholm (supra) said that;

“As in the present case summary judgment was granted in the defendant’s absence, and he had thereafter applied in terms of Rule 31(2)(b) of the Supreme Court Rules for rescission of the judgement. The Court held that the power of the rescission granted to the Supreme Court by Rule 31(2) (b.) of the Supreme Court Rules is limited to the rescission of default judgements granted in terms of Rule 31(2)(a), and that, because Rule 31(2)(a) has nothing to do with the granting of summary judgments, a summary judgment as such is not capable of being rescinded in terms of Rule 31(2)(b). That conclusion did not and does not mean of course that a summary judgement granted in the Supreme Court is not capable of being rescinded at all. On the contrary, such a summary t judgement can be rescinded, if the facts justify it, in terms of Rule 42(1) of the Supreme Court Rules (see Louis Jose Motors (Pty) Ltd v Riholm(supra at 454G)) and also in terms of the common law (see De Wet and Others v Western Bank Ltd 1979 (2) SA 1031(A) at 1042F-1043A).”

[25] In the light of the above authorities as well as the concession made on behalf of the applicants, I therefore accept that the applicants are abandoning their reliance on Rule 31(2)(b).I shall therefore not deal with rule 31(2)(b) since the applicant is no longer relying on this ground.

.

[26] Rule 42 provides that:⁵

1. The court may, in addition to any other powers it may have, mero motu or upon application of any party affected, rescind or vary:

1. An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

2. An order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

3. An order or judgment granted as the result of a mistake common to the parties.

2. Any party desiring any relief under this rule shall make application therefore upon notice to all parties whose interest may be affected by any variation sought;

(3) The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed.”

[27] In casu the applicants filed an appearance to defend on the 16 August 2005. On the 29 August 2005 an application for summary judgment was served upon the applicants attorneys of record. Rule 32(2) requires the plaintiff within 15 days after the delivery of the notice an intention to defend, to deliver a notice of application for summary judgment. This Rule was complied with by the respondents. The applicants did not file their opposing affidavit. Summary judgment was then properly granted.⁶ The question that arises, is therefore whether the summary judgment (a) was erroneously sought or erroneously granted in the absence of the applicant; (b) contained an ambiguity, or a patent error or omission; (c) was it granted as the result of a mistake common to the parties.

[28] It is not the applicants; case that the summary judgment contained any ambiguity, or patent error or omission, nor is it their case that the summary judgment was granted as the result of a mistake common to the parties. Their case is in fact that the application for summary judgment was apparently served on their attorneys on the 29 August 2005. Due to an administrative error the application never came to the attention of any of the attorneys working at the firm and the application was apparently misfiled and as the result the applicants never became aware of the application for summary judgment. Had they became aware thereof they would have given instructions to their attorneys to oppose the application. The first time they became aware that judgment had been granted against them was on the 31^st of October 2005 after receiving a letter from the Sheriff Wonderboom to contact them. They then requested their attorneys to enquire about the matter after they informed them of the misplaced application and the summary judgment. They say further that the failure to oppose the judgment was not due any negligence on their part.

[29] They have attached a confirmatory affidavit deposed to by Ms Lireen Human, an attorney from the applicants’ firm of attorneys of record, who states that the application for summary judgment was received by their firm, and that due to an administrative error it never came to the attention of any of the attorneys at her firm. She states that the date for the hearing of the application was supposed to have been noted in the office diary and on the file, which had not been done. The application was further misfiled. She further confirms that they had been given instructions to defend and that had the application been brought to her attention she would have taken instructions from her clients and that the failure to responded to the application for summary judgment is not due to any omission on the side of the applicants.⁷

[30] In the matter of Colyn v Tiger Food Industries Ltd/ t/a Meadow Feed Mills (Cape)⁸ the Supreme Court of Appeal dealt with a Rule 42(1)(a) application and referred to the matter of De Wet and Others v Western Bank Ltd⁹. In the latter matter the attorneys of the appellants (applicants) had withdrawn from the matter without the applicants being aware thereof. Judgment was granted against them in their absence. Their application for rescission was unsuccessful. On a further appeal which was also unsuccessful, Trengrove AJA rejected that the judgment against them was erroneously sought and erroneously granted, and held inter alia that “the fact that the appellants had not been advised timeously of the withdrawal of their attorneys is, of course a factor to be taken into account in considering whether good cause has been shown for rescission under common law, but it is not a circumstance on which the appellants can effectively rely for the purpose of an application under the provisions of Rule 42(1)(a)”. At para [9] in the Colyn v Tiger Food Industries Ltd/ t/a Meadow Feed Mills (Cape)¹⁰ the Supreme Court of Appeal said:

“[9] The same reasoning applies in this case. The defendant describes what happened as a filing error in the office of his Cape Town attorneys. That is not a mistake in the proceedings However one describes what occurred at the defendant’s attorneys’ offices which resulted in the defendant’s failure to oppose summary judgment, it was not a procedural irregularity or mistake in respect of the issue of the order. It is not possible to conclude that the order was erroneously sought by the plaintiff or erroneously granted by the Judge. In the absence of the opposing affidavit from the defendant there was no good reason for Desai J not to order summary judgment against him.

[10] During the course of argument counsel drew our attention to conflicting approaches of the Courts to the proper application of Rule 42(1)(a). Bakoven Ltd v GJ Gowes (Pty) Ltd¹¹ and Tom v Minister of Safety and Security¹² holds that the ‘error’ must be patent from the record of proceedings and that the Court is confined to the four corners of the record to determine whether or not Rule 42(1)(a) is applicable. Stander and Another v ABSA Bank Bpk,¹³ on the other hand, permits external evidence of the ‘error’. The conflict seems to me to obscure the real issue, which is to determine the nature of the error in question. This judgment concludes that what happened in this case did not amount to an error in terms of the Rule, regardless of whether or not it manifested itself in the records of proceedings. It is consequently unnecessary for the present purposes to say anything more about the conflict.

[11] I turn now to the relief under the common law. In order to succeed an applicant for rescission of a judgment taken against him by default must show good cause (De Wet v Western Bank Bpk (supra¹⁴) The authorities emphasise that it is unwise to give a precise meaning to the term ‘good cause’. As Smalberger J put it in HDS Construction (Pty) Ltd v Wait:¹⁵

‘When dealing with words such as “good cause” and “sufficient cause” in the Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairns’ Executors v Gaan 1912 AD 181 at 186 ; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352-3). The Court’s discretion must be exercised after a proper consideration of all the relevant circumstances”

With that as the underlying approach the Courts generally expect an applicant to show good cause (a) by giving a reasonable explanation of his default; (b) by showing that his application is made bona fide, and (c) by showing that he has a bona fide defence to the plaintiff’s claim which prima facie has some prospect of success (Grant v Plumbers (Pty) Ltd,¹⁶ HDS Construction (Pty) Ltd v Wait supra,¹⁷ Chetty v Law Society, (Transvaal).¹⁸

[12] I have reservations about accepting that the defendants’ explanation of the default is satisfactory. I have no doubt that he wanted to defend the action throughout and that it was not his fault that the summary judgment application was not brought to his attention is not explained at all. The documents were swallowed up somehow in the offices of his attorneys as a result of what appears to be inexcusable inefficiency on their part. It is difficult to regard this as a reasonable explanation. While the Courts are slow to penalise a litigant for his attorney’s inept conduct of litigation, there comes a point where there is no alternative but to make the client bear the consequences of the negligence of his attorneys (Salojee and Another NNO v Minister of Community and Development).¹⁹Even if one takes a benign view, the inadequacy of his explanation may well justify refusal of rescission on that account unless, perhaps the weak explanation is cancelled out by the defendant being able to put up a bona fide defence which has not merely a prospect, but a good prospect of success (Melane v Santam Insurane Co Ltd).²⁰”

[31] In casu, the respondents were within their rights to bring an application for summary judgment. In the absence of an opposing affidavit, the Court was correct in granting a summary judgment. There was no procedural error at all in the granting of the summary judgment.²¹

[32] Having regard to the authorities referred to herein above, I am of the view that in considering the explanation proffered by the applicants with regard to their default, I need not only consider the ipsi dixi of their explanation. I must look at it objectively and against the evidence that has been placed before me. There is no explanation as to how busy is the applicants’ firm of attorneys so as to enable me to decide whether the fact that the relevant application for summary judgment documents were swallowed in their office, is sufficient a reason for me to find that the ignorance on the part of the applicants of the application for summary judgment is excusable. Further there is no affidavit filed by the person who received the relevant documents, explaining what she or he did with the relevant documents when they were received. It is not disputed that these documents were received at the firm of attorneys of record of the applicants. The party who seeks the indulgence of the Court, must place sufficient facts before the Court to enable the Court to exercise its discretion judicially, based on the facts before it. Further, there is no explanation from the applicants as to what steps they took to interact with their attorneys since they gave them instructions to defend the matter. It is not enough for a litigant to merely give instructions to its attorneys to defend the matter and thereafter not make an inquiry as to the progress of the matter. As it was stated in the matter of Saloojee & In the matter of vide Rose and Another v Alpha Secretaries Ltd²² where Tindall, J.A., said:

“It seems to me undesirable to attempt to frame a comprehensive test as to the effect of an attorney’s negligence on his client’s prospects of obtaining relief under sub-rule (2), or to lay down that a certain degree of negligence will debar the client and another degree will not. It is preferable to say that the court will consider all the circumstances of a particular case in deciding whether the applicant has shown something which justifies the court in holding in the exercise of its wide discretion that sufficient cause for granting relief has been shown.”

In the premises, and having regard to what I have already stated herein above, the explanation proffered by the applicants with regard to their failure to file an opposing affidavit to the summary judgment application is, in my view, not a reasonable explanation justifying my having to exercise my discretion in their favour. I therefore find that there is no good cause shown for their failure to file opposing affidavits and their absence in Court to oppose the application for summary judgment.

[33] At common law the Court has a discretion to grant rescission of judgment where sufficient or good cause has been shown. ²³ The applicant must, as Moseneke J, as he then was, put it in Harris v ABSA Bank Ltd t/a Volkskas 2002[3] ALL SA 215 at 217, that the applicant must show sufficient cause which means that he must give an acceptable explanation of his default and this must coexists with evidence of reasonable prospects of success on the merits. If one of the essentials is lacking then the court will not come to his assistance.

[34] The element that is essential in the application for rescission is whether the applicant has a bona fide defence. The applicants in their founding affidavit say that they became aware on the 31 October 2005 of the judgment having been given against them.²⁴ In the replying affidavit that the applicants had filed, which is already before this Court, the applicants say that the warrant of execution was only brought to their attention on the 27 October 2005²⁵. There is an inconsistency as to when they became aware of the judgment having been brought against them. Besides, there is a letter from the applicants’ attorneys dated the 28 October 2005, addressed to the respondents’ attorneys of record, in which it is stated that the applicants’ attorneys have instructions to bring the application for rescission.²⁶ If their attorneys already had instructions to bring the application for rescission by the 28 October 2005, it can only be a misstatement on the part of the applicants to say that they only became aware of the judgment having been granted against them, only on the 31 October 2007. This inconsistency has not been explained. In my view this inconsistency goes against the grain of candour on the part of the applicants. A misrepresentation of facts such as I have indicated, blots the veracity of the applicants, in my view, to an extent that the questions of a bona fide defence on their part is clouded by this lack of candour. That being the position, in my view, I need not extend myself to interrogating the alleged defence, for purposes of deciding its prospect of success. Once the veracity of the applicants is tainted in my eyes, that negatively weakens the prospects of my finding that they have a bona fide defence that has a good prospect of success.²⁷

[35] In the premises, am of the view that the application for rescission must fail.

[36] With regard to costs, in view of the fact that the applicants were successful on the point in limine, they are entitled to the costs of the opposition of the application for the rescission. In view of the fact that I have considered the application for rescission as if it was unopposed, the application for rescission will have to be dismissed with costs on unopposed basis.

[37] Therefore the following order is made:

(a) The point in limine is upheld with costs.

(b) The application for rescission is dismissed with costs on unopposed basis.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

HEARD ON THE: 09 / 06/2006

DATE OF JUDGMENT: 02 /08/ 2007

APPICANT`S ATT: Ms. LIREEN HUMAN/

[Ref: CV 0177]

APPLICANT`S ADV: JHA SAUNDERS.

RESPONDENT`S ATT: Mr MAMURU

[Ref: NO43]

RESPONDET’S ADV: Mr. MM MOJAPELO

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