PB Tshabalala Investment (PTY) Ltd v Islam Properties CC and Another (4617/2019) [2022] ZAMPMHC 28 (13 December 2022)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

CASE NO:4617/2019

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: NO

13/12/2022

In the matter between:

PB TSHABALALA INVESTMENT (PTY) LTD

APPLICANT

AND

ISLAM PROPERTIES CC

FIRST RESPONDENT

SHERIFF OF THE COURT

SECOND APPLICANT

JUDGMENT: 13 DECEMBER 2022

Coram: Langa J:

Introduction and background

[1] This is an opposed application for the rescission of a default judgment granted by this court on 08 February 2019 against the applicants in favour of the first respondent, Islam Properties CC. This application was set down for hearing by the first respondent after the applicants failed to file the replying affidavit as well as the heads of argument. The applicants’ attorney only appeared late on the day of hearing and even then no heads of argument had been filed.

[2] This litigation arises out of a written lease agreement entered into by the parties on 14 September 2016. In terms of this agreement the applicants rented the premises called Ginger Lounge situated at 90 Oliver Tambo Street, Emalahleni for a monthly rental of R45 000.00. On 10 October 2019 the first respondent instituted an action against

the applicant claiming an amount of R1 090 000.00 for arrear rental for the period August 2016 – May 2018.

[3] Although the applicant averred that they served and filed a notice to defend the action on 26 November 2019, this cannot be correct as the summons was served on 21 November 2019 and the notice of appearance to defend is dated 21 January 2020. However, subsequent to this notice of appearance to defend, the applicants failed to file a plea until 25 March 2020 when the first respondent placed the applicant on bar. The applicant only served the plea on 13 May 2020 without lifting the bar or applying for condonation for the late filing of the plea. On 08 February 2021 the first respondent obtained a default judgment against the applicants. The first respondent proceeded to execute against the applicants and it was only thereafter on 12 October 2021 that the applicants brought this application for the rescission of the judgment.

[4] It is common cause that the applicants did not serve and file the plea until 25 March 2020 when the first respondent served them with a notice of bar. In the application for rescission the applicants contended that the reason for the delay in the filing of the plea was the declaration of the National State of Disaster (National Lockdown) on 26 March 2020. The applicants argued that they could only serve the plea after the end of April 2020 after the easing of the lockdown. The applicants’ explanation only deals with the period after the notice of bar was served and says nothing about the period from 26 November 2019 up to 25 March 2020.

Default

[5] I will first deal with the applicants’ default. It is clear from the applicants’ own affidavit that the plea was filed on 13 May 2020 which was outside the bar period. As stated above, there is no averment by the applicants that the bar was lifted. The applicants have also made no application for condonation of the late filing of the plea. Rule 27 makes provision for the extension of time and removal of bar as well as condonation and provides as follows:

(1) In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any step in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet.

[6] The Rules of court are there for a purpose and parties are expected to adhere thereto. Where there is unexplained non-compliance with the rules there are consequences. In this case it is clear that the applicants filed the plea out of time and while there was a notice of bar. It is also common cause that they have not applied for the lifting of the bar before filing the plea. After having failed to remove the bar and/or to apply for condonation, the applicants were not entitled to file the plea as they did. The plea in essence remains a nullity as they are ipso facto barred from the time the dies for the filing of the plea expired. The first respondent was in the circumstances therefore entitled to proceed to approach court for the granting of default judgment against the applicants as it did. The court therefore correctly granted the judgment by default. The applicants fail to explain their failure to comply with the rules in this respect.

[7] It is trite that good cause is a requirement for any extension or abridging of time and for the condonation of non-compliance with the rules. There is no explanation advanced by the applicants in respect of their failure to file the notice of appearance to defend in the period 21 November 2019 up to 21 January 2020 after the summons was served. There is further no explanation why the applicants did not file the plea until the first respondent served a notice of bar on 25 March 2020 after a notice of appearance to defend was served and filed on 21 January 2020. It is common cause that after the notice of bar was served on the afore mentioned date, the applicants only served the plea on the respondents’ attorneys on 13 May 2022. This was 89 days after the notice of appearance to defend.

[8] The applicants’ explanation why they could not serve the plea from 26 March 2020 until 13 May 2020 is that the Hard Lockdown (National State of Disaster) was in place from 26 March 2020 and they therefore did not have access to the courts until the end of April 2020. This is confusing to say the least as in terms of the National State of Disaster Regulations essential services such as courts, the Sheriffs, and legal services amongst others, were exempted. The Regulations clearly exempted the services related to the essential functioning of courts, judicial officers, the Master of the High

Court, Sheriffs and Legal Practitioners. The excuse by the applicants that they did not have permits and that their offices were closed is unacceptable. While permits were required for travelling purposes, it is however, clear that the applicants’ attorneys, who are based in Emalahleni, had correspondent attorneys in Middelburg, where the court is situated. It did not require them to travel to Middelburg in order to have the papers or pleadings served even during that period. Although the court services were limited, the office of the Registrar and the courts were operating albeit on a limited scale. The Practice Directives also gave directions as to how certain things such as filing of papers at court were to be done. Practitioners still had access to the courts and this reason cannot therefore avail a defence to the applicants.

[9] However, even if it is accepted that the applicant could only file the plea after the end of April 2020 as they averred, counting from the 4th May 2020, it still took them 8 days to do so, which is beyond the 5 days provided for in Rule 26. In such a case where there was a bar in place, the applicant should have applied for the extension of time or the lifting of bar and none of this was done. Strictly speaking one cannot in these circumstances even begin to inquire whether good cause has been shown as the applicant did not even attempt to remove the bar or obtain condonation for the late filing of the plea.

[10] It is clear from the history of the matter that the applicants’ attitude has always been nonchalant. This indifferent attitude is even displayed in the manner in which the applicants dealt with the prosecution of the application after filing the plea on 13 May 2020. It is clear from the papers that the applicants failed to file the replying affidavit and heads of argument. Furthermore, the applicants failed to participate in the case management of the matter despite the efforts by the first respondent requesting them to do so. In the circumstances I find that the applicants’ explanation of their default is not convincing to justify their application for the rescission of judgment. The application should therefore fail.

Case not properly before court

[11] Another ground that the applicants rely on is that the application for rescission was not properly before court as the first respondent allegedly did not first cause the matter to be case managed in line with the Practice Directives of this court. This averment by the applicants is startling to say the least. The applicants are dominis litis in this application and are expected to be interested in the application being heard by court. Instead they are crying foul when their application is enrolled after they have delayed the matter and failed to file the replying affidavit and the heads of argument.

[12] It is however clear that the first respondent did make an attempt to have the matter case managed but these attempts were frustrated by the applicants’ indifference. The first respondent clearly requested the applicants on two occasions in writing to confirm the case management Form B which the first respondent emailed to the applicants’ attorneys. There was, however, no reply to these attempts to have the case management form completed by both parties and confirmed by court. In the end the first respondent had to approach court alone for the matter to be enrolled for hearing. Due to the applicants’ disinterest in the matter the first respondent was clearly entitled to approach court as it did. The applicants cannot be allowed to hold the first respondent at ransom by avoiding to have the matter enrolled for hearing. They were clearly happy with the status quo as the first respondent could not proceed with execution for as long as the applicants were not prosecuting the application for rescission. The objection by the applicants based on this ground does not have any merit and therefore has to be rejected.

Is the applicants’ affidavit fatally defective?

[13] I now turn to issue raised by the first respondent in respect of the applicants’ founding affidavit. The first respondent contended that the founding affidavit should be disregarded as it is defective because it does not reflect the date on which it was attested to by the commissioner of oaths. In terms of regulation 4 (1) of the Regulations Governing the Administering of an Oath or Affirmation, after the deponent has signed the affidavit the commissioner of oaths shall certify under the deponent’s signature that the deponent has acknowledged that he knows and understands the contents of the declaration and he shall state the manner, place and date of taking the declaration. (my emphasis).

[14] It is common cause that the founding affidavit in this application for rescission does not reflect the date on which it was made and commissioned to. While this is a defect, it can however be condoned if an application for condonation is made. However, in this case no attempt was made by the applicants to deal with this defect in the founding affidavit. This, in my view, renders the affidavit, and by definition, the application, fatally defective as it is not in line with this specific provision in the regulations. It must be noted that these regulations have been made in terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act, 1963.

[15] Although the affidavit was duly signed by the deponent as well as the commissioner of oaths it is however not compliant as it does not reflect that date. The applicants’ explanation on this objection is simply that the affidavit was signed on 8th September 2021 and that it was an oversight on the part of the commissioner of oaths and not the applicant. This explanation frankly

is not sufficient. The applicants have the duty to ensure that the papers are in order. While it is correct that the commissioner of oaths was responsible for the noting of the date on the application, that did not absolve the applicants from ensuring that the founding affidavit has been properly and correctly executed. I am therefore persuaded that the affidavit was not properly executed for this reason it is fatally defective. The application therefore stands to be dismissed on this ground as well.

Non-joinder

[16] This brings me to the next point in limine raised by the first respondent. The first respondent argued in this respect that it is a mis-joinder by the applicants not to join the second defendant in this application. It is common cause that the main action was instituted by the first respondent against the applicant company as well as its director Mr Polite Bongani Tshabalala, who is the second defendant. Mr Tshabalala deposed to the applicants’ founding affidavit in this application. It is not disputed by the applicants that as the director of the company and the second defendant he should have been joined in this application as the second applicant. The only excuse by the applicants’ attorney is that this is a “mere slippery (sic) of the memory” and that the special plea ought to be dismissed.

[17] It is trite that the joinder of a party is necessary once it is found that that party has an interest in the matter. The test whether there has been non-joinder is therefore whether a party has a direct and substantial interest in the subject matter of the litigation which may prejudice the party that has not been joined. In Gordon v Department of Health, Kwazulu-Natal 2008 (6) SA 522; [2008] ZASCA 99 (SCA) para 9 it was held that if an order or judgment cannot be sustained without necessarily prejudicing the interest of third parties that had not been joined, then those third parties have a legal interest in the matter and must be joined.

[18] This is precisely the position in this matter. If the second defendant is not joined he would be affected by the judgment as he is not only the director of the company, but he is also the second defendant. He therefore clearly has an interest in this matter. He is in fact a party to the proceedings instituted by the first respondent against him and the company. It is clear that judgment granted in this matter will be operative against the director of the company as well. Therefore, the misjoinder in this case is evident and cannot be condoned. The explanation advanced by the applicants in this respect is hollow and without merit. The non-joinder of the second defendant in this application in my view renders the application fatally defective. On the basis of the non-joinder alone, the application for the rescission of the judgment stands to be dismissed.

Merits

[19] Concerning the merits, the applicants, despite having filed the plea out of time, attempted to argue that they have a bone fide defence. Although it is contended in paragraph 4.6 of the affidavit that the applicants made certain renovations to the premises to the tune of R680 000.00, it is however, stated in paragraph 6.2 of the same affidavit that R500 000.00 was spent on the renovations. The applicants further denied their liability to the first respondent in the amount of R1 090 000.00 on the basis that the first respondent’s previous attorneys had previously cancelled the lease agreement and claimed R300 000.00

and not R1 090 000.00 as now claimed in the summons. Although it is alleged by the applicants that there is a letter to prove that the first respondents’ attorneys claimed R300 000.00, this letter is however, not attached to the applicants’ affidavit even though it is said to be part of the annexures thereto. The averment is therefore not supported by any evidence.

[20] Nonetheless, it is clear that in terms of Clause 9 of the lease, the lessee could only effect improvements on the property with the consent of the lessor. In that event the lessee would be entitled to remove such improvements when the lease expires. In this case there is no evidence that the applicants obtained the consent from the first respondent to effect any improvements on the property. In terms of Clause 9.2 if the lease is terminated for any other reason before its normal expiry date, the improvements would then become the property of the lessor without any compensation. Furthermore, in terms of Clause 7 of the lease agreement, the lessee has acknowledged that that is familiar with the premises and has inspected the nature and contents thereof and that it was not necessary for the lessor to effect any improvements, alterations or renovations before the lessee takes occupation. It is therefore not clear why in the light of this clause it would have been necessary for the lessee to improve the property.

[21] However, most importantly, Clause 9 further provides that the lessor may demand the removal of certain or all the improvements or additions made as well as the repair of all the damage caused by the removal thereof to the satisfaction of the lessor. It is thus clear that based on this clause, the applicants could not be entitled to the refund for any improvements made to the premises. Consequently, the claim that the first respondent owed the applicants for improvements made does not have any prospects of success. In any event in terms of Clause 20 no agreement between the parties would be of any force or effect unless reduced to writing. The applicants have not proven any written agreement authorizing them to effect any improvements on the property. In the absence of such an agreement the applicants cannot enforce the alleged indebtedness by the first respondent. The applicants have therefore failed to show that they have a bona fide defence to the claim.

[22] In conclusion, I am not persuaded that the applicants have made out a case for the granting of the condonation of the late filing of the plea. Furthermore, as already stated above, the applicants’ failure to join Mr Tshabalala in this application renders the application fatally defective. Lastly, the contention by the applicants that they have a counter-claim is not sustainable for the reasons mentioned above. They have failed to establish a bona fide defence and the application must therefore fail.

Order

[23] In the result I make the following order:

The application for the rescission of judgment is dismissed with costs.

MBG LANGA

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant/Plaintiff:

Y Omar

For the Respondent/Defendant:

TC Pilusa

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 12 December 2022 at 10h00.