Standard Bank of South Africa Limited v DT Jordan Carriers (Pty) Ltd (M14/2019) [2019] ZANWHC 52 (12 December 2019)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO. M14/2019

In the matter between:

THE STANDARD BANK OF SOUTH AFRICA LIMITED Applicant

and

DT JORDAN CARRIERS (PTY) LTD Respondent

(RED NO.: 2012/193158/07)

OPPOSED MOTION

NOBANDA AJ

DATE OF HEARING : 28

NOVEMBER 2019

DATE OF JUDGMENT : 12

DECEMBER 2019

FOR THE APPLICANT :

ADV A.J VENTER

FOR THE RESPONDENT : ADV B RILEY

JUDGMENT

NOBANDA AJ.

Introduction.

[1] The Applicant (DT Jordan Carriers) brought an application seeking the rescission of judgment in terms of Uniform Rule 42(1)(a) granted by default on 7 March 2019. The Applicant alleges that the judgment was erroneously granted as the Applicant assumed the matter was set down for 17 March 2019 whilst it was set down for 7 March 2019.

[2] In response, the Respondent contends that it is of no consequence and not the real issue that the Applicant assumed the matter was scheduled for hearing for 17 March 2019 in that the Applicant failed to file its notice of intention to oppose timeously. The notice of intention to oppose and answering affidavit were only filed on 15 March 2019, almost one month later.

Applicable Legal Principles.

[3] Rule 42 of the Uniform Rules provides:

“(1) The court may, in addition to any other powers it may have

mero motu or upon the application of any party, rescind or vary:

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party

affected thereby;

(b) …;

(c) …,”

The court has a discretion whether or not to grant a rescission under this subrule. However, it has been held that the court does not have a discretion to set aside an order in terms of this subrule where one of the jurisdictional

facts contained in paragraphs (a) – (c) do not exist[1].

[4] The error contemplated in subrule (1)(a) may arise, inter alia, either in the process of the applicant seeking default judgment or in the process of the court granting default judgment[2]. The error might be patent from the record of proceedings as at the time the judgment was granted or on what appears on the record but later found to be contrary to what appears on the record[3].

[5] In casu, the Applicant’s notice reflects that the matter will be heard on 17 March 2019. The Applicant subsequently filed its answering affidavit on 15 March 2019. However, the matter came before court on 7 March 2017. As a result, the court granted judgment by default. More perplexing is that the notice before court indicates the date of hearing as 7 March while the Applicant’s reflects it as 17 March. The Respondent does not dispute that but merely states it is of no consequence.

[6] The Respondent is misinformed. It is of consequence and of relevance as to when the Applicant understood the matter was going to be heard. It happens frequently, although not encouraged, that the defendant/respondent would appear in court on the day of the hearing without having filed any intention to oppose or opposing papers to oppose the matter. Hence, Uniform Rule 6(5)(b)(iii) requires the applicant to inform the respondent when the matter will be heard if the respondent fails to file a notice of intention to oppose. The requirement “must” in the subrule is pre-emptory. Failure to advise the respondent accordingly will render the notice defective.

[7] From the documents filed, it is clear that the Applicant was not in willful default as the Applicant filed its answering affidavit, although late, assuming the matter will be heard on 17 March. Since it is not in dispute on the papers filed that the Applicant’s notice reflects the date of hearing as 17 March, the Respondent therefore erroneously sought the judgment on 7 March. Had the court been aware that the notice served on the Applicant reflected 17 March instead of 7 March as the date of hearing, the court would not have granted that order on 7 March.

[8] Counsel for the Respondent contended that in any event, the return of service reflects that the matter will be heard on 7 March. However, it is trite that the return of service is not served on the respondent / defendant but on the applicant / plaintiff as proof that the process was served on the respondent / defendant on a particular date. As such, the Respondent’s contention is without merit.

[9] It is established law that the court, without more, should grant an order of rescission where a default judgment was erroneously sought or erroneously granted[4]. As such, it is then not necessary for the applicant to show ‘good cause’ as contemplated in Uniform Rule 31(2)(b)[5]. ‘Good cause’ entails inter alia, a bona fide defence.

[10] Counsel for the Respondent however contended otherwise. Relying on the unreported judgment of the Supreme Court of Appeal in Bayport[6], he contended that the Applicant, in addition has to show a bona fide defence to the Respondent’s claim, to succeed in its application. However, Bayport was not dealing with the provisions of

Rule 42 but Rule 49 of the Magistrates’ Court Rules. The Court held that an applicant seeking a rescission of judgment in terms of Rule 49(8) of the Magistrates’ Court Rules on the basis that the judgment was void ab initio/origine, still has to comply with Rule 49(3) which is pre-emptory and which requires the applicant to set out a valid and bona fide defence to the claim.

[11] Rule 49 is not equivalent to Uniform Rule 42 and I did not hear the Respondent’s Counsel contending otherwise. Rule 42 should be considered to mean that once one of the grounds set out therein are established, the rescission should be granted[7]. As such, the Respondent’s contention in this regard is unfounded.

Order.

[12] In the premises, I make the following order:

1. The judgment granted by default by Gura J on 7 March 2019 is hereby rescinded and set aside;

2. The Respondent pay the costs.

P.L NOBANDA

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS

For the Applicant : Naude Steyn ING

C/o Van Rooyen Tlhapi Wessels Inc.

9 Proctor Avenue

Mahikeng

2745

Tel: 018 381 0804-7

Ref: TJN2/0021/AA

For the Respondent : Martins

Weir-Smith Inc.

C/o Maree & Maree Attorneys

11 Agaat Avenue Riviera Park MAHIKENG

Tel: 018 381 7495 / 7497

Ref: GJ Maree/Yusriyah/AA7329

[1] Erasmus: Superior Court Practice 2ed Vol 2 p D1-563

[2] Kgomo v Standard Bank of South Africa 2016 (2) SA 184 (GP)

[3] Lodhi 2 Properties Investments CC v Bondev Development (Pty) Ltd 2007 (6) SA 87 (SCA) at [24]; Rossittes and Others v Nedbank Ltd (96/2014) ZASCA 196 (1 December 2015)

[4] Rossittes (supra)

[5] Kgomo (supra)

[6] Bayport Securitisation v Sekata (1320/17) [2019] ZASCA 73 (30 May 2019)

[7] Erasmus (supra) at D1-563