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Lekoane NO and Another v Joubert (48240/2007) [2008] ZAGPHC 267 (26 August 2008)

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In the matter between:

MOLETELENG LEKOANE N.O.  First Applicant

(In his capacity as trustee of the
M LEKOANE FAMILY TRUST IT 2881/2003)

MOLETELENG LEKOANE       Second Applicant

                                                                       
and

PRETORIUS J,

Default judgment was granted against the applicant on 5 November 2007. The first applicant denies knowledge of the summons issued against the applicants. Both applicants apply to court in terms of rule 31(2)b to have the judgment set aside. The explanation for the default is that the applicants were unaware of summons issued and served at the registered address of the first applicant. The respondent concedes that the default by the applicants were not willful. The court must agree that there is no evidence that the applicants were willful, as they had no knowledge of the action brought against them.

The respondent argues that the first applicant does not prove it’s locus standi. Mr Moleteleng Lekoane, the second applicant, confirms under oath that he has authority to depose to the affidavit on behalf of the first applicant as well. It is clear that default judgment was granted against the first applicant and he was cited as:
         “MOLETELENG LEKOANE in sy hoedanigheid as trustee vir tyd en wyl          (“for the time being”) van die M LEKOANE FAMILIE TRUST (IT         2881/2003) met gekose domicilium citandi et executandi te LEO FORUM      72, KANTOORSTRAAT, LYDENBURG, MPUMALANGA”

Surely the respondent cannot now deny his locus standi.

I therefore cannot find that the first applicant has no locus standi. In any event the second applicant also requests a rescission of judgment.

The respondent relied on a written contract of sale of immovable properties to obtain default judgment. The court has to decide whether the applicants have a bona fide defence against respondent’s claim. This the court can only do so when examining the defence set out by the applicants in their application.

The land that forms the object of this claim was sold, but was effected by the enactment of the Mineral and Petroleum Resources Development Act 28 of 2002 which commenced on 11 May 2004.

The dispute is that the respondent relies on a cession from Zanzelle Boedery CC to claim R299 156.16 from the applicants. The claim is for the purchase price of the additional 52% mineral rights on the immovable properties purchased in terms of the original sales agreement. It is alleged that no mineral rights were transferred to the first applicant in terms of the agreement. The allegation by the applicants is that Zanzelle Boedery CC failed to perform in terms of the agreement and failed to transfer any mineral rights to the first applicant and if such rights were transferred these rights were not in the nature, type and extent of the rights the parties had in mind according to the agreement.

The applicants allege that the failure to transfer and tender what was agreed upon bars the respondent from claiming performance of payment in terms of the contract. The applicants allege that if they are granted rescission of judgment they will be able to prove these facts at trial.

I find that if these facts are established at trial the applicants may succeed in their defence. The applicants have shown good cause as indicated in Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) and rescission of the default judgment should therefore be granted.

It is ordered that:
1.      

Condonation is granted for the failure to bring the rescission application within the prescribed time period;
2.       The judgment granted on 5 November 2007 against the applicants be rescinded;
3.       Costs to be costs in the cause.

______________________
C Pretorius
Judge of the High Court

Case number                        :        48240/2007               
Heard on                                    :        19 August 2008
For the Applicant / Plaintiff             :        G Jacobs
Instructed by                               :        van Zyl le Roux & Hurter
For the Respondent / Defendant   :        GJ Scheepers
Instructed by                               :        PJ Kleynhans

Date of Judgment                           :        26 August 2008