Estoril Body Corporate v Ndayiragije (16124/2014) [2017] ZAGPJHC 66 (10 March 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 16124/2014

Reportable: No

Of interest to other judges: No

Revised.

10/3/2017

In the matter between:

ESTORIL BODY CORPORATE Applicant

and

THOMAS NDAYIRAGIJE Respondent

JUDGMENT

FISHER J:

[1] This is an application for rescission of an order handed down on default of appearance on 28 October 2015 per Teffo J in this Court.

[2] The application proceedings pursuant to which the order was granted dealt, inter alia, with charges levied by the applicant against the respondent pursuant to his ownership of a unit in the building, Estoril Flats in Yeoville, Johannesburg and his membership of the applicant. It appears that the respondent contended that he was entitled to a credit against his account with the applicant for levies and other charges in the amount of R 35 913.74. He sought a declarator which would bind the applicant to a settlement agreement concluded in relation to amounts owed to the applicant pursuant to legal

proceedings between the parties as well as relief which interdicted the applicant from charging amounts debited to the account of the respondent in relation to his levies and other charges. The Court granted an order in the following terms:

1. Declaring the Respondents conduct to set aside the parties’ memorandum of agreement entered into and/or concluded by the parties on 28 May 2011 without leave of the court a null and void.

2. Interdicting the Respondent from increasing the Applicant’s levy statement by R35 913.74 and any accruing interest.

3. Directing the Respondent to reverse R35 913. 74 and interest thereon which which has been debited against the Applicant’s levy account.

4. Costs of appliction on attorney and client scale.

[3] Reference to this order shows that, at very least, there is a defence to the claim of the respondent in this matter. The declaratory and interdictory relief granted is, on the face of it, not competent. A person cannot, without more, be interdicted from making charges on an account and unidentified “conduct” cannot be declared “null and void”.

[4] For the reasons advanced below I do not deem it necessary for the applicant to have made out a defence to the claim in the application. However, even if this were required, a defence is made out.

[5] The application is brought, in the first instance, on the basis of rule 42(1)(a) in that it is claimed that it was erroneously sought and granted in the absence of the applicant and in terms of rule 31(2)(b) in the alternative.

[6] The background facts leading up to the taking of the order are as follows:

1. The application was first enrolled for hearing during July 2014.

2. The matter was be removed from the roll by agreement at such hearing.

3. The respective attorneys of the parties are currently involved in at least another two matters involving the same parties and, inter alia, the alleged indebtedness of the respondent to the applicant for levies and other charges relating to his unit.

4. The notice of set down for the hearing at which the order in issue was taken was delivered to EW Serfontein & Associates the applicant’s previous attorneys.

5. The attorneys of the applicant have changed since in July 2015. There is however no indication on the papers that there was a formal withdrawal as attorneys of record.

6. In any event, during October 2015 the respondent served on the applicant (by sheriff) and on Serfontein attorneys, two separate processes being an application in one of the other matters between the parties and the notice of set down in respect of the hearing in issue herein.

7. The applicant referred both processes to its present attorneys, Messina Inc.

8. The notice of set down in isssue was delivered nearly a year and a half after the matter was last on the roll and with no precursor.

9. By faxed letter of 20 October 2015 the applicant’s present attorneys asked the respondents attorneys, Ditheko Lethebe attorneys to provide them with a copy of the application in issue. It was made clear in the letter that they were the new attorneys dealing with the matter. Importantly, it indicated that the applicants intended to oppose the application and they wished for further information in relation to the set down.

10. This letter went unanswered. Furthermore it was not brought to the attention of Teffo J when the matter was heard in unopposed motion court.

[7] Mr Lebethe, of the respondent’s attorneys, who argued the matter before me, submitted that it had neither been necessary for his firm to reply to the letter nor to bring it to the attention of the Court. His submission was that it would have been “only a courtesy” for him to have done either.

[8] This reveals a misunderstanding by Mr Lebethe of his collegial obligations and those duties that are owed to a court. There is a professional obligation on attorneys to respond to correspondence. More importantly still, there is an official obligation to apprise a court of all relevant communications in relation to the hearing of a matter. This is especially true when an order is sought in circumstances of default of appearance.

[9] The decisive question is whether, had Teffo J been informed of the letter and the intended opposition, she would have been likely to have been induced not to grant the default order (see Nyingwa v Moolman NO 1993 (2) SA 508 (Tk) 510G; Naidoo and another v Matlala and others 2012 (1) SA 143 (GNP) 153C and Topol and others v LS Group Management Sevices (Pty) Ltd 1988 (1) SA 639 (W)). There is no doubt that, had Teffo J been told that the applicant had new attorneys and that they had expressed in correspondence a week before the set down that they were now siezed of the matter and wished to oppose the application, she would have sought further inquiry as to the position of the parties and would not have granted the default Judgement until she was satisfied. The fact that the matter was last on the roll nearly a year and a half ago is significant in this context.

[10] Thus it is clear that the default Judgment was erroneously sought and granted and that, in the exercise of this court’s discretion, it falls to be rescinded in terms of rule 42(1)(a) (see, generally, Lodhi 2 Properties Investments CC and another v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA) para [17] – [27]).

I thus grant an order as follows:

1. The order of Teffo J of 28 October 2015 is rescinded.

2. The respondent is to pay the costs of this application.

________________________________

D FISHER

HIGH COURT JUDGE

GAUTENG LOCAL DIVISION, JOHANNESBURG

Date of Hearing: 07 March 2017

Judgment Delivered: 10 March 2017

APPEARANCES:

For the Applicant: Messina Incorporated Attorneys

For the Respondent: Ditheko Lebethe Attorneys