---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: 50819/14

19/9/2017

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

 

In the matter between:

 

GOVERNMENT EMPLOYEES PENSION FUND             Applicant

 

and

 

FIHLIWE PRISCILLA PHALA                                         Respondent

 

JUDGMENT

MALI J

 

INTRODUCTION

[1] This is an application for rescission of a default judgment granted on 18 September 2015 against the applicant for the payment of the amount of R72, 473.68. The application is brought in terms of Rule 42 of the Superior Court Act, alternatively in terms of the common law.

[2] The applicant is the Government Employees Pension Fund (“GEPF”).The respondent is a former spouse of a member of the applicant.

FACTS

[3] The respondent and her former spouse were divorced on 26 February 2016. They entered into a settlement agreement which was made an order of court. The relevant of the settlement agreement reads as follows:

"4.2.1 The Defendant shall be entitled to payment of an amount of R450 000.00 NETT, namely an amount of R450 000 after all income tax payable thereon has been paid to the South African Revenue Service, of the Plaintiff's pension interest in the Government Employees Pension Fund which is administered by the National Treasury which amount shall be payable to the Defendant in terms of section 3 of the Government Employees Pension Fund Law Amendment Act, 19 of 2011.

4.2.2 ....

4.2.3 The Government Employees Pension Fund is hereby authorised and ordered to give effect to the provisions of paragraph 4.2.1 supra."

[4] In effecting the terms of the above order the applicant paid the respondent an amount of R 386 401.49 which is R 63 598.51 less than what was stipulated in the settlement agreement. On 17 August 2015 the respondent issued a letter of demanding for the outstanding amount. On 18 August 2015 the respondent acknowledged receipt of the letter of demand.

[5] The respondent then proceeded to issue summons.. On 18 September 2015 a default judgment was granted against the applicant.

ISSUE

[6] The issue is whether the judgment was erroneously granted or the requirements of common law rescission are satisfied.

LAW

[7] Judgment obtained by default under common law can be rescinded by court if the applicant has shown, sufficient cause for rescission. Where a judgment is to be set aside on the basis of Justus error under common law in De Wet v Western Bank Ltd 1979 (2) SA 1031(A) it was held that the discretion of the courts in setting aside a default judgment under common law extend beyond, and is not limited to, the grounds provided for in rules 31 and 42(1) of the Rules. Rule 31 2(b) provides;

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

[8] Rule 42(1) (a) of the rules provides that:

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

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby."

[9] The applicant contends that it was not in wilful default because the service was incorrectly effected at the applicant's corporate office, situated at Riverwalk Office Park, 41 Matroosberg Road Ashlea Gardens, Pretoria. The applicant's registered office is Kingsley Centre, Corner Steve Biko and Stanza Bopape Street, Arcadia in Pretoria.

[10] It is not in dispute that the summons were received and acknowledged by the applicant's employee. In fact the applicant's argument is that the summons did not come to the attention of its legal department and or the relevant people to deal with the matter.

[11] The respondent in her opposing affidavit has attached a document from the applicant's website. At page 2 of the document the address of Pretoria GEPF Administration office is recorded as that of the Arcadia address. There are also other addresses for the applicant's offices nationwide.

[12] Uniform Rule4(1) (a) (v) provides as follows:

"(1) (a) Service of any process of the court directed to the sheriff and subject to the provisions of paragraph (aA) any document initiating application proceedings shall be effected by the sheriff in one or other of the following manners:

(v) in the case of a corporation or company, by delivering a copy to a place of business within the court's jurisdiction, or its principal place of business within the court's jurisdiction, or if there be no such employee willing to accept service, by affixing a copy to the main door of such office or place of business, or in any manner provided by law."

[13] In the present case it is clear that the respondent opted to do her homework only when dealing with the opposing affidavit from this application. The respondent could not proffer any reason why she chose to effect service on the corporate office address. Although it is not in dispute that the summons were received by the corporate office; the issue is whether the applicant has given a reasonable explanation of its default.

[14] From the applicant's website, which is accessible to the public, it is clear that the applicant has taken all the precautions to make public aware of its addresses including its administration office. In fact it is very clear that the manner in which the applicant has listed its addresses makes it easy for anyone who is able to read, to understand that its Administration office is the Arcadia address. The respondent's business with the applicant is the alleged manner of maladministration of her former spouse's pension fund. Enquiries regarding the administration of lack of the pension fund are done through the Arcadia offices. In an organisation huge as the applicant as is evident in the website notice; even if documents are sent to some offices despite those offices being that of the applicant it is only reasonable to expect that they may not reach the intended recipients.

[15] Regarding the above the court concludes that the applicant has offered reasonable explanation of its default. The applicant was not in wilful default. It is therefore not necessary to deal with other requirements.

[16] In the result it is ordered that,

1. It is hereby ordered that the judgment granted on 18 September 2015 is hereby rescinded and set aside.

2. The costs are hereby reserved for the main action.

 

 

 

 

N.P. MALI

JUDGE OF THE HIGH COURT

 

 

  

Counsel for the Applicant:                 Adv. D Theodorellis

Instructed by:                                     Walter Niedinger & Associates

 

Counsel for the Respondents:             Adv. L Mfazi

 

Instructed by:                                     State Attorneys, Pretoria

 

 

Date of Hearing:                                 3 May 2017

Date of Judgment:                              19 September 2017

---