Khizar v Standard Bank of South Africa Limited and Others (42244/10) [2019] ZAGPPHC 430 (30 August 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES / NO

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

(3) REVISED.

CASE NO: 42244/10

In the matter between:

HAYAT KHIZAR

Applicant

and

THE STANDARD BANK OF SOUTH AFRICA

First Respondent

LIMITED

SHERIFF OF JOHANNESBURG SOUTH

Second Respondent

THE REGISTRAR OF DEEDS: JOHANNESBURG

Third Respondent

KHUMALO DUDUZILE MARIA

Fourth Respondent

JUDGMENT

SARDIWALLA J

Introduction

[1] The applicant applied for rescission of a default judgment against him. He also seeks condonation of his failure to bring this application within the time period required by Uniform Rule 31(2)(b). An application for permission to supplement the founding affidavit is also sought.

Background

[2] The applicant defaulted on his mortgage payments owing to the first respondent.

[3] On 19 July 2010 the first respondent served a letter in terms of Section 129(1) of the National Credit Act via registered post to the applicant elected domicillium for letters, notices and statements instead of the applicant’s elected domicillium for legal notices and documents. The letter was returned to the dispatching Post Office and did not reach the applicant.

[4] On 20 August 2010 the first respondent issued summons against the applicant. The Sheriff’s return confirms that the summons was placed in the applicant’s post box. On 14 December 2010 default judgment was granted against the applicant. It is this default judgment that the applicant seeks to have rescinded.

[5] On 12 November 2012 a warrant of execution was served on the applicant attaching his immovable property.

[6] There have been three sales in execution for the property which were in actual fact attended by the applicant who sought to rebuy the property but was unsuccessful.

[7] On 10 February 2015 the applicant instructed its attorney to apply for the cancellation of the sale of execution and a subsequent application for leave to appeal were both unsuccessful.

[8] On 13 January 2016 the applicant made its first attempt to obtain a copy of the court file.

[9] On 9 February 2018 the applicant served and filed his rescission application.

The legal framework and evaluation on condonation applications

[10] Condonation is not a mere formality and is not to be had “merely for the asking”.[1] What is required is an explanation not only of the delay in the timeous prosecution but also the delay in seeking condonation for non-compliance.[2] The applicant must show that he did not willfully disregard the timeframes provided for in the Rules of Court.[3] He is obliged to satisfy the court that there is sufficient or good cause for excusing him from compliance.[4]

[11] Condonation may be refused where there has been a flagrant breach of the rules especially where no adequate explanation is proffered.[5] The applicant should convince the court to exercise its discretion in his favour.

[12] An application for condonation should be brought without delay and as soon as possible once an applicant realizes that he has not complied with a rule of court.[6] And it is not to say where non-compliance was due entirely to the neglect of the applicant’s attorney, condonation will be granted.[7]

[13] In the recent Mulaudzi case the Supreme Court of Appeal set out the factors to take into account when considering an application for condonation:

A full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility.[8] Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.[9]

[14] In the earlier case of Melane v Santam Insurance Co Ltd[10] the then Appellate Division explained the broad approach to be adopted in such an enquiry:

In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated; they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked.

[15] The preceding judgment indicates that these factors should be considered cumulatively so the court can determine whether sufficient cause has been shown to grant condonation. However, for purposes of convenience, they are briefly set out individually below.

Degree of lateness

[16] Default Judgment was granted on 9 September 2010. In the current application, the application for rescission by the applicant was brought outside the twenty (20) day period prescribed in Rule 31(2)(b) of the Uniform Rules of Court and was only served on 9 February 2018. This is nearly eight years after the default judgment was granted.

The explanation for the delay

[17] The applicant is required to provide a “full, detailed and accurate account of the causes of the delay and their effects … It must be obvious that, if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out.”[11] There must be an explanation for the entire period of the delay.[12]

[18] There is no evidence that the applicant notified the first respondent’s attorneys that he intended to apply for a rescission of the default judgment at any stage prior to the 1 February 2018. The applicant alleges that his attorneys attempted to obtain a copy of the court file after the default judgment was granted however the first request for a court file form is date stamped 13 January 2016. The applicant alleges that whilst it awaited a copy of the court file from the court he instructed its attorney to apply for a cancellation of the sale of execution and a subsequent application for leave to appeal. The applicant first contacted the first respondent’s attorney’s on 1 February 2018 to obtain a default bundle of the court documents

when the court confirmed in October 2017 that files between the years 1987 to 2010 were no longer accessible.

[19] In his heads of argument the applicant explains that he only became aware of the default judgment in August 2013 when the first sale in execution was being held and that he only received legal assistance when he received an eviction notice in November 2015. The applicant’s entire cause is based on the fact that he did not receive the summons and therefore could not have been reasonably expected to be aware of the proceedings against him in order to challenge same.

[20] I must however respectfully disagree with the applicant. Even if the version of the applicant, which in my respectful opinion cannot stand to be true, that he only became aware of the default judgment in August 2013 this does not explain why he never contacted the first respondent’s attorney immediately thereafter to notify them of his intention to apply for a rescission and secondly why a request for a copy of the court file was only made for the first time in January 2016. Even upon becoming aware of the sale of execution in August 2013 the applicant did not seek legal redress such as launching an urgent application to suspend the operation of the warrant of execution. This has not been addressed at all by the applicant and no explanation proffered. Further the applicant has not alleged that his inability to challenge any of the actions against him was due to the negligence of his attorneys. It is apparent from the reasons proffered by the applicant that they are lacking in detail, and did not account at all for each period of the delay.

Prejudice to the fourth respondent and her interest in the finality of the judgment

[21] One must not lose sight of the interest of the respondents in this matter specifically the fourth

respondent in the finality of the judgment. In his founding affidavit, the applicant seeks to suggest that there can be no prejudice to the fourth respondent as she had not yet moved into the property. It must be noted that after the fourth respondent purchased

the property that the applicant applied for a cancellation of the sale in execution unsuccessfully wherein the applicant’s sole cause of action was aimed at the balance price not being paid timeously. Strijdom AJ found that the fourth respondent complied with all the conditions of sale and dismissed the application. At this stage it is important to note that whilst the fourth respondent who legally purchased the property was prevented from legally occupying her new home, the applicant received the remaining proceeds of the sale after the banks fees were deducted. I am of the view that the fourth respondent has already suffered undue prejudice. It is also concerning that when the applicant became aware of the default judgment he never indicated any intention to apply for rescission but in fact attempted to purchase the property at the auctions. There cannot be said to be any prejudice suffered by the applicant by refusing an application he did not until recently intend on pursuing.

Avoidance of unnecessary delay in the administration of justice

[22] The administration of justice requires that matters be dealt with efficiently and without delay.

The applicant has shown a flagrant disregard for the court rules and processes and has brought an application to rescind almost eight years after the fact without any reasonable explanation for the delay. This goes against the interests of justice.

Prospects of success and importance of the case

[23] A court must assess the prospects of success unless the other facts, considered cumulatively, are such that it makes the application for condonation “obviously unworthy of consideration”[13]. This would be in instances of flagrant breaches of the rules, especially where there is no acceptable explanation for the breach.

[24] As already recorded above, if there are no prospects of success there would be no point in granting

condonation; a slight delay and a good explanation may help to compensate for prospects of success which are not strong; and the

importance of the issue and strong prospects of success may tend to compensate for a long delay.

[25] The time delay of approximately 9 years is so egregious and the explanation so unsatisfactory or incomplete that condonation should be refused out of hand. I therefore consider it appropriate, in the circumstances of the case, to refuse condonation without first considering the prospects of success, the importance of the case, and whether there is some other compelling reason for the rescission to be granted.

[26] Accordingly, I order as follows:

1. The applicant's failure to bring the application within the time limits as prescribed by Rule 31(2)(b) is refused.

2. The application for rescission of the default judgment granted against the applicant on 9 September 2010 under case number 42244/10 is refused.

3. The applicant is ordered to pay the costs of the application for rescission of judgment and condonation on an attorney and own client

scale.

SARDIWALLA J

JUDGE OF THE HIGH COURT

APPEARANCES

Date of hearing

: 23 April 2019

Date of judgment

: 30 August 2019

Applicant’s Counsel

: ADV.: T HADEBE

Applicant’s Attorneys

: E D Van Schalkwyk Attorneys

First Respondent’s Counsel

:

ADV.: M REINEKE

First and Second Respondent’s Attorneys

: Ramsay Webber Attorneys

[1] Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at para [6].

[2] Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited 2017 (6) SA 90 (SCA) at para [26].

[3] Shabalala v Goudine Chrome (Pty) Ltd and Another, unreported, case no: M 342/2016, Northwest Provincial Division, Hendricks J, 2

November 2017, at para [3].

[4] Erasmus v Absa Bank Ltd and Others, unreported, case no: A/982/13, Gauteng Provincial Division, Pretoria, Full bench per Potteril J, at para [11].

[5] Erasmus supra at para [11].

[6] Mulaudzi supra at para [26].

[7] See Darries v Sheriff, Magistrate’s Court, Wynberg and Another 1998 (3) SA 34 (SCA) at 40I—41D.

[8] Uitenhage Transitional Local Council supra at para [6].

[9] At para [26].

[10] 1962 (4) SA 531 (AD) at 532 B—E.

[11] Uitenhage Transitional Local Council supra at para [4].

[12] See Darries supra at 41A

[13] Mulaudzi supra at para [34]