IN THE HIGH COURT OF SOUTH AFRICA

CASE No. 15285/2008
DATE: 9/07/2010
In the matter betweem:

and

In re:

and

JUDGMENT

Van der Byl, AJ

Introduction

(I will for the sake of convenience refer to the parties as they were cited in the default judgment proceedings, namely, to the Applicants as the First Defendant and the Second Defendant, respectively, or, as the circumstances may require, collectively as the Defendants and to the First Respondent as the Plaintiff)

[3]      According to the returns of service, the summons was served -
(a) on 19 June 2008, by affixing acopyto the principal door of the residence of the Second Defendant at 907 King Bruce, corner of Claim and Bruce Streets, Hillbrow, Johannesburg;

[4] The Defendants now seek an order rescinding the aforesaid judgment granted against them on 14 January 2009 and setting aside the warrant of execution obtained pursuant to that judgment.
Grounds on which recission of the judgment in question is sought

[5] In terms of a long standing practice followed in our courts a party seeking recission of a judgment or order obtained on default of appearance in terms of either Ruie 31 (2)(b) or the common law is required to establish on a balance of probabilities two essential elements, namely -

[6] In relation to the Defendants' default of appearance the Second Defendant contends -

[8] As far as the First Defendant is concerned, it is, in essence, its defence that the Plaintiff did not render any services to it.

[9] In this regard there are, as I will be pointed out below, numerous factual disputes between the parties on the papers.

[10]    On the one hand, it is the First Defendant's case -

Plaintiff's opposition of the application for rescission
[11] In its opposing affidavit the Plaintiff contends that it indeed rendered electrical services for Eskom in the areas of Verdwaal 1 and 2, Blauwbank and Lichtenburg situate in the so-called central region during 2006 and 2007 at the special instance and request of the First Defendant, as, according to the Plaintiff, is evident from -

[12] In its replying affidavit the First Defendant disputes all these factual averments.

 Evaluation of evidence
[13] The First Defendant concedes in its replying affidavit that its application should fail if the Court accepts, as established facts, the version of the Plaintiff.

[14] This calls for a consideration of the First Defendant's challenge of the Plaintiff's contentions that it indeed rendered services to the First Defendant in the Verdwaal 1 and 2, Blauwbank and Lichtenburg areas.

[15] As already indicated, the Plaintiff relies on seven factual averments in support of its allegation that it indeed rendered services to the First Defendant in the areas concerned.

[17] These four invoices issued during the period 15 June 2007 to 25 June 2007 reflect detailed lists of services rendered in the areas concerned in which the First Defendant is invoiced in amounts of R317 164,86, R37 736,26, R875 647,71 and R150 828,04.

[18] The First Defendant denies that any work detailed in these invoices was performed at all or, if such work was performed, that such performance was performed at the instance of the First Defendant.

[25]    In this regard I can refer to the following:-

[27] It would appear that the First Defendant does not deny that the payments of, particularly, the amounts of R77 161 and R20 000, and, I add, various other payments reflected in the statement reflected therein were duly effected on invoices of which the correctness is not disputed.

[28] In so far as the amount claimed in the summons is determined with due regard to all the invoices and payments specified in the statement in which the various, including the invoices which are not disputed by the First Defendant, I fail to understand the First Defendant's contention that the whole amount claimed is based on fraudulent invoices compiled on information relating to invoices submitted by it to Eskom irregularly obtained from some unidentified person in the employ of Eskom.

[29] The First Defendant could fairly easily have annexed the invoices from which this information was obtained so as to show how the services claimed in the Plaintiff's invoices are duplicated.

[30] It is, furthermore, significant to note that no allegations of fraud were made in the letter addressed to the Plaintiff's attorneys in response to their letter of demand dated 17 April 2008.

[33] In these circumstances the contention that he Plaintiff submitted false invoices to the First Defendant seems to me to be so farfetched that the allegation can be rejected on the papers.

[36] I fail to see how this allegation detracts from the Plaintiff's allegation that it also employed employees in those areas as well as in the Lichtenburg area.

[37] As already indicated, the Plaintiff's allegation relates to two payments totalling R315 000 made to it in respect of Invoice No. 2204 on 25 May 2007 which according to the First Defendant have been made in respect of services rendered on its behalf by the Plaintiff in Mpumalanga.

[39] It, however, does not detract from the fact that Invoice No. 2204 purports to relate to work done by the Plaintiff in the Verdwaal 1 and 2 area

[40] The First Defendant's response to this allegation by the Plaintiff is a denial that those expenses could have been incurred by the Plaintiff in respect of services rendered at the instance of the First Defendant and points out, particularly, that Eskom provided all material for the use of electrifications projects.

[41] It is, however, apparent from the documentary proof rendered by the Plaintiff that the expenses were incurred not in respect of material, but in respect of petrol expenses, toll gate fees, motor vehicle maintenance expenses, expenses in respect of equipment, lodging expenses, food and beverage expenses and certain diverse expenses.

[42] In this regard the deponent of the Plaintiffs answering affidavit is accused by the First Respondent of lying under oath.

[43] Although the meeting took, according to the First Defendant, place under completely different circumstances as those alleged by the Plaintiff, the First Defendant concedes that the chairperson did raise the issue of the invoices which were allegedly due to the Plaintiff and that the deponent of the Plaintiff's answering affidavit was present at the meeting.

Conclusion
[45] On the question whether the First Defendant has given a reasonable and acceptable explanation for its default of appearance, I am satisfied that service had been duly effected on the First Defendant's registered address, but I have no reason to reject its explanation that it did not receive the summons because it had at the time of service no longer doing business at that address. It is in any event clear from correspondence exchanged between the parties before summons was issued that the First Defendant was opposed to the Plaintiff's claim. It is accordingly in my view unlikely that, had it received the summons, it would not have filed a notice of intention to defend the action.

In view of the conclusion I have reached I do not regard it necessary to deal with the allegations raised in this regard.

Costs
[48] This is clearly a matter where in the case of the First Defendant costs should follow the result. In the case of the Second Defendant it does not appear, the two Defendants having been represented by the same attorneys and the same counsel, to be a matter where the costs incurred by the two Defendants can be separated from each other. It, furthermore, does not appear that the papers would have been different had default judgment been granted against the First Defendant only.

[49]    For the reasons set out in this judgment the following order is made:-

P C VAN DER BYL
ACTING JUDGE OF THE HIGH COURT

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