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IN THE HIGH COURT OF SOUTH AFRICA

 

(GAUTENG DIVISION, PRETORIA)

(1)       REPORTABLE: YES/NO

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

(3)       REVISED

 

CASE NO: 29361/2019

 

In the matter between:

 

KGALEMO CONSTRUCTION (PTY) LTD                                                   First Applicant

SEMEENEE WILHELMINA APHANE                                                          Second Applicant

LEHUMO MAKGALEMELE APHANE                                                         Third Applicant

 

and

 

ILIAD AFRICA TRADING (PTY) LTD                                                          Respondent

JUDGMENT

FABRICIUS J

 

[1]             Before me is a rescission application and a request for a cost order in respect of proceedings which did not commence on 4 May 2020.

 

[2]             The Notice of Motion is dated 16 September 2019. It seeks the setting aside of a default judgment granted by the registrar on 18 June 2019. It also seeks condonation for the late delivery of the application for recission.

 

[3]             The parties did not approach this case in a sensible and practical manner but attempted to obtain every possible advantage at the other’s expense. Litigation is not some type of game intended for that type of approach. It should be conducted as expeditiously and cost-effectively as possible. undue formalisation should be avoided as well as a desperate clinging to the Rules of the Court to avoid a real or imagined loss. The ultimate aim is to bring a matter to trial speedily and effectively and with all relevant facts being before the court.

 

[4]             Rules are there for the benefit of the Court which has wide discretionary powers to condone any non-compliance for sound reasons.

 

[5]             In the Founding Affidavit First applicant’s registered address is shown to 11 Doring Avenue , Montana Park, Gauteng. He annexes a copy of a CIPC Company search which confirms this. The deponent to the affidavit is the 3^rd Applicant. he is a director of the Company. He and the 2^nd applicant reside in Irene, Pretoria.

 

[6]             Applicants say that they became aware of the judgment on 26 July 2019 when the warrant of execution was served on them. In the Founding Affidavit reference is made to the 20-day period referred to in Rule 31 (2)(b) but no condonation application accompanied the rescission application. It was merely said such an application would be time-consuming and expensive, but that it would be brought if necessary.

 

[7]              The author of this affidavit would be well advised to acquaint himself with the Rules of Court before embarking on litigation. There is no reason why a Court should tolerate laxity or incompetence.

 

[8]             Applicants continue to state that their default was not wilful, that this application is bona fide and that there is a bona fide defence to respondent’s claim. This in essence seems to be that the amount owing is either incorrect or in fact not even due. No documentary evidence of any hind is referred to or annexed, and one can only guess at the merits of such contention.

 

[9]              However, respondent’s conduct is not faultless. The relevant summons was served on 30 May 2019 at 248 Kruger Avenue, Lyttelton, Centurion, which is described as being applicants’ chosen domicilium. It was said that the requested address has changed to Montana Park as indicated on the CIPC search document. Respondent knew this, so it was said. It also knew that the physical address of 2^nd and 3^rd applicants had changed since about June/July 2017. It was not said how respondent knew this.

 

[10]           What bothers me the most about the 3 returns of service is the following: the deputy sheriff in all 3 instances state that “Kindly take note that the defendants are (sic) unknown at the given address.”

 

[11]            Whilst service at a chosen domicilium is in order in the normal course of events, the sheriff’s comments ought to have alerted respondent’s attorney and have motivated him to make enquiries as to the correct whereabouts of the applicants. It is well known in my experience that Judges in the Pretoria High Court do in general not grant default judgment where such comment appears, as it is inevitable that in due course a rescission application will follow, and that further time and costs will be wasted.

 

[12]            The rescission application which duly followed was opposed and respondent pointed out a number of defects in the application, to which I have already referred.

 

[13]            The respondent set the matter down for 14 April 2020 in the absence of applicants’ heads of argument and practice note. Due to the Covid-19 lock-down it was automatically removed and re-enrolled for 4 May 2020. In the absence of a replying affidavit which was only dated 10 June 2020, the matter was removed by Mothle J. Costs were reserved. There is no reason why applicants should not pay the wasted costs for this day.

 

[14]           The replying affidavit then stated that a substantive condonation application would be filed simultaneously therewith. Applicants complained about lack of funds, a change of attorney, a change in respondent’s attorneys address and lock-down circumstances, all without the necessary details which ought to cover the entire period of the delay as is well-known. Prescription of the claim was also raised.

 

[15]           However, a further aspect concerns me: the s129 Notice in terms of the National Credit Act 34 of 2005 (appended to the Particulars of Claim) was served on the amended address of the first applicant. This fact, read together with the sheriff’s comments on the mentioned Returns of Service, indicates that respondent’s conduct into his context deserves censure. I expect a higher standard.

 

[16]           Given all the mentioned circumstances I am of the view that despite all the valid criticism against the content of applicants’ affidavit, good cause has been shown to grant the orders sought in the exercise of my discretion.

 

[17]           The following order is therefore made:

17.1         applicants are to pay the wasted costs of 4 May 2020 jointly and           severally, the one paying the others to be absolved;

 

17.2         the default judgment granted against them on 18 June 2019 is set        aside and

 

17.3         applicants are to pay the costs of this application (including the condonation application), jointly and severally the one paying the others to be absolved.

 

 

H FABRICIUS

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

 

 

DATE OF HEARING: NO ORAL HEARING

DATE OF JUDGMENT: 4 SEPTEMBER 2020

 

FOR THE APPLICANTS: ADV HP WESSELS

INSTRUCTED BY:WALDICK JANSEN VAN RENSBURG INC

 

FOR THE RESPONDENT: ADV B D STEVENS

INSTRUCTED BY: KOTZE & ROUX ATTORNEYS INC

 

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