International Slab Sales (Pty) Ltd v South Western Granite & Marble CC and Another (9122/2008) [2009] ZAWCHC 219 (5 November 2009)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: 9122/2008

DATE: 5 NOVEMBER 2009

In the matter between:

INTERNATIONAL SLAB SALES (PTY) LTD …........................................Applicant

and

SOUTH WESTERN GRANITE & MARBLE CC …...........................1st Respondent

T L MCDONALD …......................................................................2nd Respondent

JUDGMENT ALLIE, J: In this matter I am of the view that in fact the applicant, that is the second defendant in the action, has given us a reasonable

explanation for his failure to deliver his notice of intention to defend and that explanation is that he clearly did not receive the summons, and there is a good and valid reason as to why he could not have received the summons, namely that it was not properly served on him. In fact it was served at the registered address of a close corporation of which he was a member, yet the further papers were served on his home

JUDGMENT

ALLIE, J:

In this matter I am of the view that in fact the applicant, that is the second defendant in the action, has given us a reasonable

explanation for his failure to deliver his notice of intention to defend and that explanation is that he clearly did not receive the summons, and there is a good and valid reason as to why he could not have received the summons, namely that it was not properly served on him. In fact it was served at the registered address of a close corporation of which he was a member, yet the further papers were served on his home

address, which means clearly that the plaintiff's attorneys were aware of the fact that service ought to have been effected at the second defendant's home address. So I am of the view that he certainly has given a reasonable explanation for his default. Just turning to the issue of whether in fact he has made out a case of having abona fide defence, and whether he has shown that he does not merely intend to defend purely for the purposes of delaying, I am of the view that the explanations that he gives in his founding affidavit, at least sets out a bona fide defence at this stage. Of course, it is for a trial court in due course to establish whether in fact that defence is sufficient to negate the claim, but at this stage I am of the view that he has at least shown that he has a basis for wanting to defend this action and that it is not merely a matter of him wanting to delay the matter. I am satisfied that his allegation that he has not signed the document upon which the plaintiff relies, is a defence that he should be entitled to raise. I also am of the view that he appears, from his papers, to dispute whether in fact the document upon which the plaintiff relies is in fact a deed of suretyship and I believe he is entitled to raise that as a defence as well. In the circumstances I do believe that he has shown that he has a bona fide defence, which he ought to be allowed to raise against the plaintiff's claim. At this stage, at least, that bona fide defence appears to be a prima facie valid defence. I am also alarmed at the fact that the plaintiff's attorney has sought a benefit, or sought an advantage for the plaintiff by applying for default judgment in this matter, knowing full well that in fact service of the summons was not proper service on the second defendant, and in the circumstances then not wishing to agree to a rescission of judgment, but instead seeking to oppose this matter, thereby causing the second defendant to incur further costs. I am of the view that the applicant in this matter, who is also the second defendant in the action, is entitled to at the least the costs of this application on an attorney and client scale. I am also of the view that this matter ought properly to be dealt with as a rescission of a judgment, given the fact it has not been reviewed by the registrar himself or herself, but by the Court. I am accordingly, therefore, ordering that the judgment granted on 12 May 2008 under case number 5415/2008 is rescinded and the second defendant is granted leave to defend. I am also then ordering that the respondent in this application, who is the plaintiff in the main action, is then ordered to pay the second defendant and, who is also the applicant in this application, the costs of this application on an attorney and client scale. ALLIE, J

address, which means clearly that the plaintiff's attorneys were aware of the fact that service ought to have been effected at the second defendant's home address. So I am of the view that he certainly has given a reasonable explanation for his default.

Just turning to the issue of whether in fact he has made out a case of having abona fide defence, and whether he has shown that he does not merely intend to defend purely for the purposes of delaying, I am of the view that the explanations that he gives in his founding affidavit, at least sets out a bona fide defence at this stage. Of course, it is for a trial court in due course to establish whether in fact that defence is sufficient to negate the claim, but at this stage I am of the view that he has at least shown that he has a basis for wanting to defend this action and that it is not merely a matter of him wanting to delay the matter.

I am satisfied that his allegation that he has not signed the document upon which the plaintiff relies, is a defence that he should be entitled to raise. I also am of the view that he appears, from his papers, to dispute whether in fact the document upon which the plaintiff relies is in fact a deed of suretyship and I believe he is entitled to raise that as a defence as well. In the circumstances I do believe that he has shown that he has a bona fide defence, which he ought to be allowed to raise against the plaintiff's claim. At this stage, at least, that bona fide defence appears to be a prima facie valid defence.

I am also alarmed at the fact that the plaintiff's attorney has sought a benefit, or sought an advantage for the plaintiff by applying for default judgment in this matter, knowing full well that in fact service of the summons was not proper service on the second defendant, and in the circumstances then not wishing to agree to a rescission of judgment, but instead seeking to oppose this matter, thereby causing the second defendant to incur further costs. I am of the view that the applicant in this matter, who is also the second defendant in the action, is entitled to at the least the costs of this application on an attorney and client scale.

I am also of the view that this matter ought properly to be dealt with as a rescission of a judgment, given the fact it has not been reviewed by the registrar himself or herself, but by the Court. I am accordingly, therefore, ordering that the judgment granted on 12 May 2008 under case number 5415/2008 is rescinded and the second defendant is granted leave to defend. I am also then ordering that the respondent in this application, who is the plaintiff in the main action, is then ordered to pay the second defendant and, who is also the applicant in this application, the costs of this application on an attorney and client scale.

ALLIE, J