MM Chartered Accountants Inc. v Ntokazi Consulting (Pty) Ltd (2021/54556) [2024] ZAGPPHC 251 (11 March 2024)
- Citation
- [2024] ZAGPPHC 251
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Omphemetse Mooki
- Case number
- 2021/54556
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Omphemetse Mooki
- Case number
- 2021/54556
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the respondent was bound by the order of 5 April 2022, which directed that the matter be heard in the opposed motion court. The respondent's act of enrolling the matter as unopposed was improper and resulted in the judgment being granted in error. The applicant, although dilatory in its conduct and failing to prosecute its Rule 27(1) application or file necessary pleadings timeously, was entitled to rescission of the judgment. However, due to the applicant's lack of diligence and delay in bringing the rescission application only after the writ of execution was issued, the court ordered that the applicant pay the costs on an attorney and client scale.
Court disposition
Application for rescission granted; judgment in favour of respondent rescinded; applicant to pay costs on attorney and client scale.
Orders
- The judgment made in favour of the respondent on 1 July 2022 is rescinded.
- The applicant is ordered to pay the costs on an attorney and client scale.
02
Material facts
Parties
MM Chartered Accountants Inc.
Applicant Counsel: MG SkhosanaNtokazi Consulting (Pty) Ltd
Respondent Counsel: PT Zuma03
Procedural history
Posture
Rescission Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the judgment granted in favour of the respondent should be rescinded.
- 02
Whether the respondent was entitled to enroll the matter as unopposed after the court ordered it to be heard in the opposed motion court.
- 03
Whether the applicant's dilatory conduct affects entitlement to costs.
Party arguments
- Applicant
- The applicant contends that the judgment was erroneously granted as the matter was enrolled as unopposed despite a prior court order referring it to the opposed motion court. The applicant argues that its opposition was indicated and that the respondent's conduct in enrolling the matter as unopposed was improper. The applicant seeks rescission under Rule 42 and Rule 31(2)(b), asserting that the judgment was granted in its absence and without proper procedure.
- Respondent
- The respondent opposes the rescission, arguing that the applicant was dilatory and failed to prosecute its Rule 27(1) application or file the necessary plea and affidavits within the prescribed timeframes. The respondent submits that the applicant only acted after a writ of execution was issued and that the applicant's conduct warrants an adverse costs order.
05
Court’s reasoning
Legal principles
- 01
Rule 42, Uniform Rules of Court
A judgment may be rescinded under Rule 42 if it was erroneously sought or granted in the absence of a party affected thereby.
- 02
Rule 27(1), Uniform Rules of Court
A party who is barred from pleading may apply for the upliftment of the bar under Rule 27(1), but must prosecute such application diligently.
- 03
Order of Court dated 5 April 2022
Where a matter is referred to the opposed motion court, it may not be enrolled as unopposed.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the respondent was bound by the order of 5 April 2022, which directed that the matter be heard in the opposed motion court. The respondent's act of enrolling the matter as unopposed was improper and resulted in the judgment being granted in error. The applicant, although dilatory in its conduct and failing to prosecute its Rule 27(1) application or file necessary pleadings timeously, was entitled to rescission of the judgment. However, due to the applicant's lack of diligence and delay in bringing the rescission application only after the writ of execution was issued, the court ordered that the applicant pay the costs on an attorney and client scale.
Obiter and limits
- The applicant's repeated delays and failure to prosecute its applications demonstrate a supine approach to litigation.
- The respondent should have complied with the court's directive and refrained from enrolling the matter as unopposed.
Court disposition
Application for rescission granted; judgment in favour of respondent rescinded; applicant to pay costs on attorney and client scale.
- The judgment made in favour of the respondent on 1 July 2022 is rescinded.
- The applicant is ordered to pay the costs on an attorney and client scale.
Source and reliance status
North Gauteng High Court, Pretoria
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Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
Case No: 2021/54556
Reportable: No
Of interest to other Judges: No
Revised: No
SIGNATURE
Date: 11/03/2024
In the matter between:
MM CHARTERED ACCOUNTANTS INC.
Applicant
and
NTOKAZI CONSULTING (PTY) LTD
Respondent
JUDGEMENT
,
MOOKI J
1
The applicant seeks rescission of a judgement granted in favour of the respondent. The rescission is sought in terms of Rule 42 and Rule 31 (2) (b). The application is opposed.
2
The chronology of events is material to the determination by the court. The respondent issued summons on 8 November 2021. The applicant served a notice to defend on 11 November 2021. There was no plea. The respondent issued a notice of bar on 13 December 2021. The applicant did not file a plea and became ipso facto barred.
3
The applicant made a Rule 27 (1) application] on 17 February 2022. The respondent then applied for default judgement. The matter came before court in the unopposed motion court on 5 April 2022. It was ordered removed to the opposed motion court roll.
4
The last day by when the applicant was to file its opposing affidavit in the default judgement was on 26 April 2022. The applicant did not file its affidavit by that date. The respondent, on 14 June 2022, set the matter down on the unopposed motion court roll. The applicant then filed its affidavit opposing default judgement on 17 June 2022.
5
The applicant indicated in its practice that the the matter was opposed. The matter came before the court in the unopposed roll on 1 July 2022. There was no representation for the applicant when the matter was called. The court granted judgement in favour of the respondent. This is the judgement which the applicant seeks to rescind.
6
The applicant raises various bases for why the judgement ought to be rescinded. I do not consider it is necessary to deal with all those grounds. The respondent ought not to have enrolled the matter as unopposed. That is because the court made an order on 5 April 2022 that the matter be heard in the opposed motion court.
7
The applicant must succeed in having the judgement rescinded. The applicant must, however, pay the costs and do so on an adverse scale. This is because the applicant has been extremely dilatory in undertaking steps required to bring the matter to finality.
8
The chronology referred to in paragraphs 2 to 4 shows the applicant to be dilatory. The applicant did not contest the submission on behalf of the respondent that, for example, the applicant has done nothing to prosecute its Rule 27 (1) application. That application was made on 17 February 2022.
9
It also bears noting that the applicant launched the rescission application only after the respondent had issued a writ of execution. The applicant was ordered, when the court referred the matter to the opposed roll on 5 April 2022, to bear the costs on an attorney and client scale. All these instances show that the applicant was supine in how it deals with the matter.
10 The respondent, on the other hand, is bound by the order of 5 April 2022. The respondent should not have enrolled the matter on the unopposed roll.
11 I make the following order:
(a) The judgement made in favour of the respondent on 1 July 2022 is rescinded.
(b) The applicant is ordered to pay the costs on an attorney and client scale.
Omphemetse Mooki
Judge of the High Court
Heard on: 7 February 2024
Delivered on: 11 March 2024
For the Applicant:
MG SKHOSANA Instructed by: ABRAMS MADIRA INC.
ATTORNEYS For the Respondent:
PT ZUMA Instructed by:
MOLAI ATTORNEYS
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