Naidoo and Another v Consolidated Steel Industries (Pty) Ltd, in re: Consolidated Steel Industries (Pty) Ltd v Naidoo and Another (50682/13) [2017] ZAGPPHC 806 (23 November 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 50682/13

NOT

REPORTABLE

NOT

OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

NAIDOO,

NEELAKANDAN

Identity Number […] FIRST

APPLICANT

NAIDOO,

PARVATHY

Identity Number […] SECOND

APPLICANT

And

CONSOLIDATED STEEL INDUSTRIES (PTY) LTD

Registration Number 2006/031549/07 RESPONDENT

In re:

Registration Number 2006/031549/07 PLAINTIFF

Identity Number […] FIRST

DEFENDANT

Identity Number […] SECOND

DEFENDANT

Heard: 14 November 2017

Delivered: 23 November 2017

JUDGMENT

NEUKIRCHER AJ:

[1] This is an application for rescission of a judgment granted by Madima AJ on 9 May 2016 in favour of the plaintiff (she is the respondent in the rescission application). For convenience I will refer to the parties as they are referred to in the main action as plaintiff and defendants.

[2] It is appropriate at this stage to mention that both defendants reside in Pietermaritzburg, KwaZulu-Natal and are married in

community of property. Their attorney of record is Chetty, Asmal & Maharaj of Pietermaritzburg whose correspondent is F Valley Attorneys in Pretoria. The reason for this will become clear in due course.

[3] I also pause to mention that defendants' attorney withdrew on 11 April 2017 giving the defendants last known address in Pietermaritzburg. There is no indication in the court file of any new attorneys as is required in terms of rule 16. Rule 16 specifically provides that:

"4 (b) After such notice, unless the party formerly represented within 10 days after the notice himself notifies all other parties of a new address for services as contemplated in subrule (2), it shall not, [sic] be necessary to serve any documents upon such party unless the court otherwise orders: Provided that any of the other parties may before receipt of the notice of his new address for service of documents, serve any documents upon the party who was formerly represented."

[4] Despite no formal substitution of address being filed, and more especially one within the jurisdiction of this court for service, the plaintiff still served:

4.1 the heads of argument and practice note on 7 June 2017 on one Ceronio Govender;

4.2 the index on second defendant personally on 18 July 2017; and

4.3 the notice of enrolment on 14 August 2017[1].

[5] There was no appearance for the defendants today and they also filed no heads of argument.

[6] In default of their appearance, counsel for the plaintiff sought not just a striking off of the matter from the roll, but a dismissal of the application with costs as the latter would 'revive' the judgment granted on 9 May 2016 and this would allow the plaintiff to finally execute their judgment in a matter which had been dragging on since 2013. A striking off would simply prolong the matter and the rescission application would have to be set down once again before another court for its dismissal.

[7] I have read the papers and given the fact that the defendants have placed their version under oath before me, I have considered their affidavits in reaching the decision which is set out in this judgment.

THE

BACKGROUND

[8] On 26 August 2013 summons was issued by plaintiff against both defendants. They entered appearance to defend and the plaintiff

applied for summary judgment which was refused on 18 November 2013 and defendants were granted leave to defend.

[9] Eventually the plaintiff served a rule 35(3) on defendants. Their response was deemed inadequate by plaintiff who then served a rule 30 A notice on defendants' attorney in Pretoria on 11 December 2015.

[10] It appears however that the defendants never responded to the plaintiff rule 30 A notice and the next they knew a writ of execution

was served at their premises during June 2016 which is when they found out that their defence had been dismissed and judgment had been granted against them on 9 May 2016.

[11] After an investigation, according to their papers, they discovered the following:

11.1 the email address used by F Valley attorneys forward all correspondence to Chetty was kogs@wol.co.za. This email was sent directly to Mr Chetty's secretary who would bring it to his attention.

11.2 there was a technical problem with the email system at Chetty Asmal & Maharaj from "early" December 2015 until September 2016 per the confirmatory affidavit of Neilesh Deokalo, an Information Technology Specialist. He states that this technical problem caused the emails from F Valley to end up in the junk mail server of WOL and as a result they were not received by Mr Chetty.

[12] As a result the rule 30 A notice was not received, nor was any notification of set down of the matter on 9 May 2016.

[13] As a result, there was no appearance for defendant on 9 May 2016 and judgment followed in favour of plaintiff. It is this judgment that defendants seek to set aside. They allege that they have instituted a counterclaim against plaintiff for R102 089,23 based on the fact that they have paid plaintiff fully and have overpaid plaintiff with R102 089.23.

THE

RECISSION APPLICATION

[14] Although the rule under which this application resorts is not stated. I assume for present purposes that it is brought under the common law as neither rule 31 nor rule 42 apply.

[15] The defendants must show "sufficient cause" which is that:

15.1 there is a reasonable explanation for the default;

15.2 the application must be bona tide;

15.3 the defendant must have a bona tide defence, which prima facie has some prospect of success.[2]

[16] The defendants have stated that they have known about the judgment since June 2016 and yet this application was only launched on 15 December 2016 - no explanation has been given for this delay.

[17] The answering affidavit points to a notice of Taxation of the Bill of Costs which was served on Mr Valley on 22 July 2016.

[18] The warrant of execution was served on 25 August 2016.

[19] What is glaring in its absence is an affidavit by Mr Valley - that he did (or did not) send all these notices through to Mr Chetty; what attempts he made to ensure that he received instructions on the matter given all that he was faced with and the resultant lack of instructions.

[20] What is also glaring in its absence are the attempts made by Mr Chetty in the period between early December 2015 (the response to the rule 35(3) and July 2016 when Mr Chetty contacted Neilesh Deokali, the IT specialist, to check the servers. Does he not diarize matters? Did he not once send emails to Mr Valley? Or telephone him? If he did email his correspondent, was he not concerned when he received no response?

[21] It is also not clear whether this is the only correspondent matter between Mr Valley and Mr Chetty, If it is not then so much puzzling is this deafening silence for 8 months without any alarm being sounded. But none of this information has been put before me which I would have expected given the circumstances of this matter.

[22] What has also not been put before me are the particulars of the counterclaim. All I know is that there is one which is that the claim is paid and in fact, plaintiff owes defendants R102 089.23. Although defendants do not need to deal fully with the merits of their case, the grounds of their defence must be set out with sufficient detail to enable the court to conclude there is a bona fide defence and the application is not merely made to harass the plaintiff[3].

CONCLUSION

[23] In my view the defendant's application is stillborn:

23.1 on their version, they knew of the judgment in June 2016 and waited until 15 December 2016 to launch this application - there is no explanation for this inordinate delay;

23.2 there is no explanation by Mr Chetty why he allowed eight months to pass without any enquiry into the status of this matter and more especially from Mr Valley;

23.3 there is no confirmatory affidavit from Mr Valley;

23.4 there is a paucity of information with regards to the defendant defence.

[24] In the circumstances I find that sufficient cause has not been shown and accordingly the application for rescission is dismissed with costs.

B

NEUKIRCHER

Acting Judge of the High Court

[1] This is affixing to the main gate

[2] De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) at 1042.

[3] Grant v Plumers 1949 (2) SA 479 (O) at 476; Standard Bank of South Africa Ltd v El-Naddaf 1999 (4) SA 779 (W) at 785.