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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

(GAUTENG DIVISION, PRETORIA)

 

(1)           NOT REPORTABLE

(2)           NOT OF INTEREST TO OTHER JUDGES

(3)           REVISED.

Case Number: 18821/2016

4/5/2018

 

Nolusindiso Vellem                                                                                     Applicant

(Identity number: [….])

 

And

 

Nedbank Limited                                                                                       Respondent

 

In re:

 

Nedbank Limited                                                                                       Plaintiff

 

And

 

Nolusindiso Vellem                                                                                   Defendant

(Identity number: [….])

 

JUDGMENT

TONJENI AJ;

[1]           This is an application for the rescission of a default judgment granted against the applicant on the 15th May 2016 by this honorable court.

[2]           There is no appearance by or on behalf of the applicant, after her name is called out 3 (three) times inside and outside the court room, although a Notice of Setdown for the hearing of this matter was property served at her registered address on the 29^th January 2018.

[3]           The application is brought in terms of Uniform Rules 42 (1).

The Rule 42 (1) provides that a court may mero motu or on application, rescind or vary;

 

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

(b)     An order or judgment in which there is an ambiguity, error or omission;

(c)     An order or judgment granted as a result of a mistake common to the parties.

 

[4]           The respondent is opposing the application and also raises two points in limine:

(i)         the property in issue was sold to a third party, who has not been cited in these papers;

(ii)        the commissioning of the applicant's founding affidavit is flawed and not in accordance with the requirements of the prescripts.

 

[5]           Briefly, the cause of action in the main application was a breach of a loan agreement. Both the Section 129 Notice in terms of the National Credit Act 34 of 2005 and the Summons were served personally on the applicant (respondent in the main application) as evidenced by the respective Returns of Service.[1]

1.            When no response was elicited from the applicant (respondent in the main application), the next procedural step of applying for a default judgment was taken, and this was granted on the 16^th May 2016.

2.            The Warrant of Execution was also served personally on the applicant.[2]

The property was eventually sold at a public auction to a 3^rd party during May 2017 .

[6]           The applicant launched this application for rescission of the default judgment in July 2017 and answering papers were served on the applicant on the 5^th October 2017. Nothing further was filed from the applicant, until the respondent set the matter down for hearing.

[7]           The crisp question is whether in these circumstances that default judgment can properly be rescinded in terms of Rule 42 (1) (a), (b), (c) of the Uniform Rules of Court. The issue is also whether the facts on which applicant relies give rise to any sort of error for which the rule provides and, if so, whether the order was erroneously sought or erroneously granted because of it.

[8]           It is not very clear from the applicant's founding affidavit what error the application is based on, and because of this the court is going to take a more general view in examining applicant's papers. It has also been noted that applicant claims to have drawn her own papers.

It is trite that in order to succeed in an application for rescission of judgement taken by default, an applicant must show good cause.

 

''This generally entails that the applicant must:

 

(i)      Give a reasonable (and obviously acceptable) explanation for his default.

(ii)      Show that his application is made bona fide; and

 

(iii)      Show that on the merits he has a bona fide defence which prima faice carries some prospects of success”[3].

 

[9]          In Harris v Absa Bank Ltd t/a Volkskas[4] Moseneke J comments as follows:

 

" The test whether 'sufficient cause' has been shown by a party seeking relief, is dual in nature, it is conjunctive and not disjunctive. An acceptable explanation of the default must co-exist with the evidence of reasonable prospects of success on the merits".

 

[10]      In casu, warrant of execution against the applicant's property was served on applicant on the 25^th May 2016. If nothing else, this alone should have roused applicant to do something, but nothing happened. Her founding affidavit does not give an explanation that is acceptable for her tardiness in attending to this matter. Intact she is disingenuous with the truth and simply avers that she was unaware of the proceedings against her. The returns of personal service of various court documents on applicant demonstrates this.

[11]            Applicant on her version admits indebtedness to the respondent but disputes the amount as claimed. She does this in a lackadaisical fashion, with no particularity to the exact figures, and attaches no documentation to base her averments.

[12]            I turn now to deal with Rule 42. This rule is confined by its wording and context to the rescission or variation of an ambiguous order or an order containing a patent error, or omission[5].

12.1       Rule 42 (1) (c) - an order resulting from a mistake common to the parties; or erroneously sought or granted in the absence of a party affected thereby[6].

12.2      Rule 42 (1) (b) and (c) has no application in the present case.

 

[13]            Streicher JA in Lohdi 2 Property Investments CC & Another v Bonder Development (Pty) Ltd[7] dealing with a Rule 42 (1) (a) application remarked as follows:

"Similarly, in a case where a plaintiff is entitled to judgment in the absence of the defendant the judgment if granted cannot be said to have been granted erroneously in the light of a subsequently disclosed defence. A court which grants judgment by default does not grant judgment on the basis that the defendant does not have a defence: it grants judgment on the basis that the defendant has been notified of the plaintiff's claim as required by the rules, that the defendant not having given notice of intention to defend, is not defending the matter and that the plaintiff is in terms of the rules entitled to the order sought. The existence or non-existence of a defence on the merits is an irrelevant consideration and, if subsequently disclosed, cannot transform a validly obtained judgment into an erroneous judgment".

 

[14]            In the circumstances of the case before me, no mistake on the part of anyone of the parties or the court has been established.

 

It follows therefore that no basis has been shown to exist for the application of Rule 42 1 (a), (b) or (c).

[15]            The other aspect of importance is that, although the applicant was aware of the sale of the property to a third party at the time she launched this application, she neglected to join such third party. The rescission of this default judgment, without such joinder would have no impact on the ownership of the property.

[16]            As already indicated, the circumstances of the case before this court are clearly not in line with the requirements of Rule 31 (2) (b); neither are they compliant with Rule 42 (1), (a), (b), (c) or even common law.

[17]            I therefore make the following order:

 

The application for rescission of default judgment is dismissed with costs.

 

 

 

T TONJENI

ACTING JUDGE OF THE HIGH COURT

 

 

APPEARANCES:

On behalf of Applicant                  :           No appearance

Instructed by                                  :           None

 

On behalf of Respondent              :           Adv. Welgemoed

Instructed by                                 :           Delport Van Den Berg Inc

 

Date of hearing                             :           30 April 2018

Date of Judgement                        :           4 May 2018

 

 

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