South Africa: High Courts - Gauteng

BEGIN DEUR 'N "HEADER" TE MAAKLOM Business Solutions

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND PROVINCIAL DIVISION)

JOHANNESBURG CASE NO: 6355/07

DATE: 2007-10-04

In the matter between

SACCAWU Applicant

and

DENDY M Respondent

______________________________________________________________

JUDGMENT ______________________________________________________________

SNYDERS J: This is an application for rescission of a summary judgment. The applicant is SACCAWU; the respondent is Mr Mervin Dendy who acted as attorney for the applicant over a period of time. The summary judgment was obtained by Mr Dendy for professional services rendered, disbursements and fees.

The application is formulated in the vaguest of terms. The application for summary judgment was enrolled for hearing on 17 April 2007. The allegations by the applicant surrounding the events on that day, is that apparently the applicant was represented in court with a view to oppose the summary judgment application. However, from the applicant’s own papers it is clear that there was no indication in the court file, no intimation to the presiding judge and no intimation to Mr Dendy, who appeared on his own behalf in pursuing that application, that the summary judgment application was opposed. To this day there is no opposing affidavit.

The allegation by the applicant is further that when the summary judgment application was called, counsel on behalf of the defendant, applicant in this application, was outside of court due to some illness. Judgment was then taken. Attempts were made, so the allegations go, thereafter to secure the attendance of Mr Dendy back at court or in the chambers of the presiding judge to try and obtain an arrangement or an agreement by consent to rescind the summary judgment granted. These attempts were unsuccessful.

For the moment I focus on the explanation of the failure to attend and oppose the application for summary judgment. The applicant’s explanation falls far short of being reasonable and acceptable. There is no indication why Mr Dendy was not informed that the application was opposed. There is no indication why the presiding judge was not informed that the applicant wished to oppose the application for summary judgment. There is no explanation why the affidavit opposing the application for summary judgment was not in the court file or was not filed or was not given to Mr Dendy and the presiding judge. There simply are no explanations.

When it comes to explanations regarding delay, it is clear on the applicant’s own affidavit that on 17 April 2007, it became aware that summary judgment was granted. There is no explanation why it took until 29 August 2007 for this application for rescission to be issued out of this court. There is a half hearted attempt to explain that counsel who was drafting this was ill. There is no explanation why the attorney did not proceed to issue the application, why another counsel’s legal services were not employed. There is simply no explanation why it took from 17 April 2007 until 29 August 2007 to bring this application for rescission of judgment.

In respect of the cause of action very little is tendered to satisfy that the applicant has anything to say on the claim by the respondent.

Paragraph 13.1 of the founding affidavit makes the following extraordinary statement and I quote, “It is my respectful submission that the Respondent, indeed, was instructed by the Applicant to handle some of the matters and there was no verbal nor signed agreement in respect of the fees that would be charged except to pay the stipulated money as and when the Respondent required it”. It leaves one aghast to find this allegation in an application for rescission of judgment as it basically amounts to a concession of the claim by the respondent.

Furthermore, this founding affidavit is met by an answering affidavit that gives the fullest of details possible relating to cases acted in for and on behalf of the applicant, statements supplied and delivered to the applicant, details of disbursements and fees, letters of demand for payment and the list goes on. There is no replying affidavit to meet that full and complete answer.

In court the only submission that was advanced was that the respondent’s bill should have been taxed. That may have been a point to pursue merely to delay the proceedings, but judgment having been granted, the proceedings are way beyond the point where the applicant could have insisted on the bill being taxed.

There is absolutely no merit in the application for rescission of the summary judgment that was granted on 17 April 2007. The application is dismissed with costs.

---oOo---

ON BEHALF OF THE APPLICANT : MR E MATANDA

ON BEHALF OF THE RESPONDENT : IN PERSON