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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 73392/2018
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
………………………. ………………………..
DATE SIGNATURE
(GAUTENG
In the matter between: -
ROOKSANA DHODA Applicant
and
THE STANDARD BANK OF SOUTH AFRICA LIMITED First Respondent
THE SHERIFF, JOHANNESBURG NORTH Second Respondent
In Re:
THE STANDARD BANK OF SOUTH AFRICA LIMITED Plaintiff
and
ROOKSANA DHODA Defendant
________________________________________________________________
JUDGMENT
________________________________________________________________
[1] The Applicant is applying for an order rescinding the default judgment
granted by the above Honourable Court on the 10 December 2015 under
case number 64605/2015. This application is brought on the basis that the
default judgment was erroneously sought and granted and that the
applicant has good defences to the first respondent’s claims. The applicant
seeks a costs order against the respondent.
[2] The application is opposed on the following grounds: -
That the applicant is not instituted on a bona fide basis and forms part of
a long dilatory litigation against the first respondent. It is contended that
the applicant failed to establish the requirements for a rescission under
Rule 42 (1) (a) as it is averred by the respondent that the default
judgment was erroneously sought and granted. The first respondent
further contends that the applicant failed to make out a case for the relief
she seeks and the application’s purpose is to merely delay the first
respondent’s claims.
The first respondent seeks the dismissal of the application with a punitive
costs order.
FACTUAL BACKGROUND
[3] The applicant and the first respondent duly represented, concluded a
written home loan agreement on 20 December 2005. In terms of the
home loan agreement, the first respondent lent and advanced to the
applicant the sum of R2.5 million (principal debt). The express terms and
conditions of the home loan agreement read with the bond were inter alia
the following: -
a) That the principal debt would bear interest at the first respondent’s prime
rate of interest, which would vary from time to time;
b) That the applicant will effect monthly instalments amount in the sum of
R21 854.07;
c) As security for the principal debt, the applicant was required to register a
mortgage bond in favour of the first respondent for an amount of R2.5
million (the mortgage bond) over Portion 1 of Erf 793 Forest Township,
Registration Division I.R Province of Gauteng measuring 759 square
metres. (property)
[4] Pursuant to the conclusion of the home loan agreement, the first
respondent advanced the principal debt to the applicant, the applicant
passed the mortgage bond over the property as she was obliged to do.
The applicant defaulted on the home loan agreement as she failed to
maintain monthly instalment as agreed. At the institution of the action by
the first respondent in August 2010 under case number 28958/2010, the
applicant was in arrears in an amount of R1 121 628.16. The applicant
defended the action on the basis that the notice in terms of Section 129 of
the NCA had been sent to an incorrect address and disputed that the
principal debt had been advanced.
[5] During October 2010 the first respondent withdrew the action under case
number 28958/2010. A different firm of attorneys was instructed to
commence action against the applicant to avoid becoming embroiled in
the dispute in summary judgment relating to whether or not Section 129
of the NCA had been received by the applicant or not. The first
respondent reinstituted action against the applicant under case number
48627/2011 and summons was served on the applicant’s postal address
as the address preferred by the applicant.The action was not defended
and the first respondent was granted default judgment against the
applicant on 04 November 2011 in the sum of R3 675 205.88 plus interest
and an order declaring the mortgage bond executable.
[6] On 20 December 2011 the applicant applied for the rescission of the
default judgment under case number 48627/2011 contending that the
summons were not properly served as it was served on a postal address
thus infringing upon her right to housing. The application for rescission by
the applicant was opposed by the first respondent and the applicant failed
to file a replying affidavit to the first respondent’s answering affidavit. On
01 October 2012 the applicant’s application for rescission was dismissed
with costs whereafter the applicant applied for leave to appeal the
dismissal of her application. Leave to appeal was also dismissed.The
applicant petitioned the Constitutional Court for leave to appeal
contending that the service of the summons in the 2011 action was
defective. Before judgment for leave to appeal could be delivered by the
Constitutional Court, applicant and the first respondent entered into
discussions relating to the leave of appeal application launched at
the Constitutional Court. The parties herein confirmed that the first
respondent would simply abandon the judgment without in any way
abandoning its claim or right of action by providing a formal consent to
rescind the 2011 default judgment. Despite the applicant and the first
respondent agreeing to request the Constitutional Court to pend its
decision in respect of the applicant’s application for leave to appeal
pending resolution of the matter between the parties, the Constitutional
Court dismissed the applicant’s application for leave to appeal with costs
on 3 December 2014.
[7] Despite the dismissal by the Constitutional Court of the application based
on her contention; The first respondent granted the applicant a benefit of
doubt regarding her alleged defective summons and instituted action
afresh and served the summons on the address the applicant prefers
notwithstanding the dismissal of her application by the Constitutional
Court. It was expressly stated in writing that the abandonment of the
judgment by the Constitutional Court dismissing applicant’s application
was premised on the understanding that the first respondent’s claim or
right of action was not abandoned. The first respondent subsequently
served the summons on the applicant who failed to defend the action. A
default judgment was granted against the applicant on the 10 December
2015 and a sale of the applicant’s immovable property was up for
execution arranged for 20 October 2016. The applicant launched another
application for rescission of the default judgment a day before the sale of
her house in execution resulting in the cancellation of the intended sale.
[8] The basis of the application for rescission of the default judgment was
based on the following contentions: -
a) That the manner in which the summons was served on the applicant’s
preferred address was not proper;
b) That the first respondent had abandoned its claim against the applicant by
way of notice in 2011 when the first respondent abandoned the judgment
by default;
c) That the first respondent’s claim had prescribed.
The contentions aforementioned raised as grounds for the application for
rescission of the judgment granted in 2016 were abandoned by the
applicant. She however disputed the quantum of the 2015 default
judgment pertaining to legal costs.
Despite the first respondent having delivered an answering affidavit to the
applicant’s application for rescission the applicant failed to deliver her
replying affidavit.
The applicant’s application for rescission was dismissed with a punitive
costs order.
[9] As the applicant’s application for rescission for judgment (2016) was
dismissed, the first respondent arranged for the sale of the applicant’s
immovable property scheduled for the 11 October 2018. Two days prior to
the sale in execution of the applicant’s house on the 9 October 2018, the
applicant launched the present rescission application.
Issues for determination by the first respondent
[10]
“ 3.1 Condonation for the late filing of the first respondent’s answering affidavit;
3.2 The bona fides of the application;
3.3 Whether or not the applicant’s application is competent;
3.4 Whether the applicant is entitled in law to rely on any aspects of her 2018
rescission, notwithstanding the question concerning the competence of
the application;
3.5 The consequences of the applicant’s non-compliance with Rule 35 (12).”
According to the applicant, issues to be determined are the following: -
“3.6 Condonation for the late filing of the first respondent’s answering affidavit;
3.7 In the event that condonation is granted the Applicant will require an
opportunity to deliver a Replying affidavit”
Condonation application by the first respondent
[11] The applicant (Rooksana Dhoda) submitted that the only crisp issue for
determination in the application before this court is whether to grant
condonation or not for the late filing of the first respondent’s answering
affidavit. Counsel for the applicant informed this court that her
instructions are to argue condonation only and further that if condonation
is granted, to apply for a postponement to enable the applicant to file its
replying affidavit to the first respondent’s answering affidavit. The first
respondent (Standard Bank of SA) contended that it is not common cause
that condonation is the only aspect to be determined in this application.
Counsel for first respondent is of the view that the entire application
including the issue of condonation is to be considered and finalized in the
application before this Court.
[12] The grounds for condonation are premised on the following:
The first respondent argued that the sole cause of the delay in delivering
the answering affidavit arose out of the applicant’s conduct. The
applicant’s conduct arises from the history of this matter. It is common
cause that the legal proceedings between the parties dates back to 2010
and to date according to first respondent, there is no finality envisaged by
the applicant. Gleaning from the papers before this court, the application
launched various rescission applications and such applications were
dismissed by the above Honourable Court including the Constitutional
Court as aforementioned. The first respondent submitted that it gave the
applicant the benefit of doubt by abandoning the judgment granted in
instances where the applicant raised issues of her domicilium address and
disputed the correctness thereof and even contesting that in some
instance denying that the Sheriff did properly serve the pleadings on
the applicant. The first respondent made it very clear that the
abandonment of judgment or consent to rescind default judgment in a
particular matter does not mean that the first respondent in any way
abandons its claim or right of action. According to the first respondent,
the applicant persists in raising issues in the present application which
were dealt with in the past applications with the sole purpose of
frustrating and delaying the progression of the parties matter to be
concluded.
[13] In applying for rescission of default judgment on the eve of the sale in
execution of the applicant’s house during 2018, applicant contended that
she has since discovered letters of the 14 April 2015 wherein she changed
her domicilium address and allegedly notified the first respondent and
hence her fresh rescission application based on her latest discovery of the
letters of the 14 April 2015. The first respondent based on the applicant’s
past conduct doubting the provenance of the 14 April 2015 letters, called
for the production of the 14 April 2015 letters in terms of Rule 35 (12)
notice during December 2018.
[14] It is argued by the first respondent that the documents sought are central
to the applicant’s case and further that the said documents are key to the
first respondent filing its answering affidavit as it requires an opportunity
to inspect the original documents. The applicant failed to produce the
original documents as required in terms of Rule 35 (12). Ultimately the
first respondent did file its answering affidavit albeit late. It is the lateness
of the filing of the answering affidavit which is inter alia a highly
contentious issue in the condonation application.
[15] The first respondent averred that it compelled the applicant to comply
with its Rule 35 (12) notice which application to compel was opposed by
the applicant. The notice to compel was later on withdrawn by the first
respondent and filed its answering affidavit. It is alleged by the first
respondent that the applicant has not as yet delivered her replying
affidavit.
[16] The first respondent contends that it was not in wilful non-compliance by
not submitting its answering affidavit timeously nor did it act delinquently
and intentionally thus wilfully delaying the progression of this matter.
The applicant, in the first respondent’s view is to shoulder all the blame
for delaying the finalization of its claim resorting to endless and baseless
applications in order to stave this matter being concluded.
[17] The first respondent argued that the applicant suffers no prejudice by the
late filing of the answering affidavit as the applicant is the sole cause of
the delay as she failed to comply with Rule 35 (12). The applicant is still in
occupation of the bonded property and does not effect any monthly
instalments so argued the first respondent. According to the first
respondent, the prospects of success tilts in its favour as the applicant
failed to make out a case in this matter. The first Respondent contended
that applicant’s case highly depended on the alleged letters of 14 April
2015. The applicant’s failure to produce the originals of the alleged letters
of the 14 April 2015 in the first respondent’s view means that there is no
case before this court. The first respondent accordingly seeks for the
condonation to be granted with a punitive costs order.
[18] The application is opposed on the basis that the delivery of the answering
affidavit has been unduly delayed by the first respondent. The applicant
contended that the first respondent failed to provide sufficient explanation
for the lateness of its answering affidavit. In applicant’s view the first
respondent did not seek indulgence of the court in being late to deliver its
answering affidavit. The applicant submitted that the first Respondent’s
defence should be struck out due to the following reasons: -
i) The delay on the part of the first respondent of twenty two months in
delivering its answering affidavit is extremely excessive, protracted and
flagrant.
ii) It is expected of the first respondent to be fully appraised with the Rules
of this court and that the first respondent deliberately refrained from
providing a reasonable explanation for its delay.
iii) That the first respondent’s explanation that it was awaiting the discovery
of documents in terms of Rule 35 (12) is unsatisfactory.
iv) The failure of the first respondent to provide a reasonable, satisfactory
and acceptable explanation for the delay is fatal to its application.
[19] The applicant submitted that the first respondent flagrantly, recklessly and
wilfully breached the Rules of this Court and its failure to provide a
reasonable explanation for its delay should result in its application for
condonation being refused irrespective of the merits of the matter.
It was further contended by the applicant that the reasonable prospects of
success is naturally an important consideration relevant to the granting of
condonation, however it is not necessarily decisive in every matter and
cannot per se be conclusive. The applicant submitted that a bona fide
defence and a good prospects of success are not sufficient in the absence
of a reasonable explanation for the default.
[20] According to the applicant, what the first respondent tendered as an
explanation is merely a delay in finalising its application to compel the
applicant to produce documents in terms of Rule 35 (12) of the Rules of
court. The applicant argued that the first respondent’s failure to provide a
satisfactory explanation for each period of delay reveal the first
respondent’s lackadaisical attitude towards the requisite time limit and the
Rules of this Court. The applicant’s view is that the application for
condonation be refused and that the first respondent’s be struck out.
Analysis and legal principles finding application
[21] A court may condone non-compliance of the Rules of the Court in
instances where the applicant shows that a valid and justifiable reason
exists why non-compliance should be condoned. An applicant is to furnish
an explanation of his default sufficiently and fully to enable the court to
understand how it really came about and to assess his conduct and
motives. The court held in Federated Employers Fire and General
Insurance Co Ltd and Another .V. Mckenzie 1969 (3) SA 360 (A)
at 362 F-H that: -
“In considering petitions for condonations under Rule 13, the factors
usually weighed by the Court include the degree of non-compliance, the
explanation therefore, the importance of the case, the prospect of
success, the respondent’s interest in the finality of his judgment, the
convenience of Court and the avoidance of unnecessary delay in the
administration of justice…” The burden lies with the applicant to prove
good cause for the relief it seeks. See also Silber .V. Ozen Wholesalers
(Pty) Ltd 1954 (2) SA 345 (A) at 353A.
It was further decided in Uitenhage Transitional Council .V. SA
Revenue Services 2004 (1) SA 292 SCA at P 297 par 6 that:
“… condonation is not to had merely for the asking, a full detailed and
accurate account of the causes of the delay and effects must be furnished
so as to enable the court to understand clearly the reasons and assess the
responsibility. It must be obvious that, if the non-compliance is time
related then the date, duration an extent of any obstacle on which
reliance is placed must be spelled out”.
Good cause
[22] In considering as to what constitute good cause, the court has a wide
discretion and should consider the matter holistically in satisfying itself
that there is a full and reasonable explanation as to how non-compliance
came about. The court have refrained from attempting to formulate an
exhaustive definition of what constitute “good cause”.
See Cape Town City .V. Aurecon SA (Pty) Ltd 2017 (4) SA (cc) at
238 G-H and Du Plooy .V. Anues Motors (Edms) Bpk 1983 (4) SA
212 (O) at 216H-217D.
[23] The first respondent contended that non-compliance with Rule 35 (12)
excused the first respondent from filing any answering affidavit. The
purpose for requesting the discovery of the 14 April 2015 letters was to
allow the first respondent to check the veracity thereof. The applicant’s
refusal to produce the letters on the basis that they have been attached
on its founding affidavit is not sustainable.The question that needs an
answer is why if indeed the applicant is in possession of the original
letters of the 14 April 2015, did not produce same to allow the first
respondent to file its answering affidavit? When compelled to produce the
letters, the applicant opposes the notice to compel on the eve of
delivering and filing of the answering affidavit by the first respondent.
The respondent withdrew the notice to compel and filed its answering
affidavit in order to see the progression of the matter and to avoid further
delay in finalizing the matter. The effect of the withdrawal of the notice to
compel and failure to produce the letters of the 14 April 2015 by the
applicant meant that the applicant could not use the alleged letters in her
possession as the letters do not form part of the papers before the court,
a sanction provided by Rule 35 (12) of the Rules of the Court. The
subsequent withdrawal of the notice to compel and the delivery of the
answering affidavit had no effect on the applicant as she failed to deliver
her replying affidavit to date. In my view the refusal and failure to
produce the requested letter of the 14 April 2015 resulted in the first
respondent not being obliged to deliver and file its answering affidavit.
[24] The position of our law is the following: -
Until the original documents (letters of 14 April 2015) are presented for
purpose of assessment, the other party may not be heard to compel the
production of an answering affidavit to be delivered and the party cannot
be told to draft the answering affidavit in the absence of obtaining the
original documents and be entitled to inspect those documents because in
inspecting the documents, the defence of the party may come to the fore
and it will be a holistic position.
See Protea Assurance .V. Waverley 194 (3) SA 247 C at 249B
Unilever .V. Polargic 2001 (2) SA 329 C at 336 C-I
[25] Accordingly I hold that the first respondent has demonstrated that good
cause exists for the relief it seeks and has furnished an explanation of his
default in delivering its answering affidavit which explanation in my view,
is reasonable and acceptable. I find that the non-delivery and filing of the
answering affidavit timeously by the first respondent is neither flagrant,
reckless and gross to warrant the dismissal of its application for
condonation.
Prejudice and interest of justice
[26] It is trite law that the standard for considering an application for
condonation is the interest of justice. See Brummer .V. Gorfil Brother
Investments (Pty) Ltd and others 2000 (2) SA 837 (CC)
paragraph [3].
Grootboom .V. National Prosecuting Authority and Another 2014
(2) SA 68 (CC) paragraphs [22] and [23]. Whether it is in the
interest of justice to grant condonation depends on the facts and
circumstances of each case and the list of such facts are not exhaustive.
The first respondent contended that a reasonable and justifiable
explanation as to its delay in delivering its answering affidavit has been
fully set out warranting the granting of condonation. The first respondent
argued that the sole intention of the applicant in launching endless and
numerous applications is to frustrate and delay the finalization of the
matter thus causing substantial prejudice to its interests.
[27] It is submitted by the first respondent that the applicant is in no way
prejudiced by the late filing of the answering affidavit which is for her own
making. The applicant according to the first respondent, intends to delay
the conclusion of its claim as long as she could while enjoying the benefits
of her occupation of the bonded property without effecting any payments
thereof. The first respondent contended that the applicant’s application is
meritless and its prospects of success in the application are great.
[28] It is the applicant’s submission that the delivery of the answering affidavit
has been unduly late with a scant and unsatisfactorily explanation
provided and as such, the first respondent’s defence should be struck out.
It is the contention of the applicant that since there is a flagrant and
reckless failure on the part of the first respondent to deliver its answering
affidavit within the prescribed period, condonation can be declined
without considering the prospects of success.
[29] As alluded above the non-compliance of delivering the answering affidavit
within the required time frame cannot be attributed to the first
respondent. The first respondent was not obliged to deliver its answering
affidavit until the applicant produced the alleged original letters of the 14
April 2015 in terms of Rule 35 (12). I have already found that the first
respondent’s explanation as to the default is reasonable and acceptable
and the contention that its defence be struck out for lack of a satisfactory
explanation for the delay is rejected.
[30] Having assessed and evaluated the facts of this matter, the importance of
the case, the first respondent’s interest in the finality of this application
and the avoidance of further delays in the administration of justice and
prospect of success, I hold the view that condonation be granted.
I find that the first respondent will suffer great and substantial prejudice if
condonation is not granted whereas the applicant will experience no
prejudice. It is in the interest of both parties and more particularly in the
interest of justice that the condonation be granted and the application be
finalized.
[31] A case for condonation is appropriate under the circumstances and the
relief sought by the first respondent is granted.
I make the following order: -
1) The application for condonation is hereby granted.
Application for a postponement
[32] The applicant’s counsel informed the court that she has only been
instructed to argue the issue of condonation and if condonation is
granted, the applicant be granted an opportunity to file her replying
affidavit as it is in the interest of justice to allow for a replying affidavit at
a later stage. The first respondent contended that the applicant failed to
bring a proper application for a postponement and counsel for the
applicant moved such an application from the bar. An application for the
dismissal for a postponement was made on behalf of the first respondent.
[33] I find that there is no reasons or basis whatsoever for the application for a
postponement and therefore I am inclined to dismiss the application for a
postponement. The following order is made: -
1) The application for a postponement is dismissed.
Rescission application
[34] The applicant avers that the default judgment was erroneously sought as
she has good defences to the first respondent’s claim. Counsel for the
applicant despite having informed the court that she does not have
instructions to argue the rescission application before court, made a
submission from the bar that the application is brought in terms of the
common law. The applicant consequently seeks relief to rescind the
default judgment granted on the 10 December 2015.
Applicable legal principles
[35] Rule 42 (1) provides as follows: -
“The court may in addition to any other powers it may have, mero motu
or upon application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b) An order or judgment in which there is an ambiguity or a patent error or
omission but only to the effect of such ambiguity, error or omission;
(c) An order or judgment granted as a result of a mistake common to the
parties.”
In Monama and Another .V. Nedbank Limited 41092/16 [2020]
ZAGPPHC 70 at 18 and 19 the Court referred to Rule 42 (1) (a) as follows:
“Generally speaking a judgment is erroneously granted if there existed at
the time of its issue, a fact of which the Court was unaware, which would
have precluded the granting of the judgment and which would have
induced the Court, if aware of it, not to grant the judgment. An order is
also erroneously granted if there was an irregularity in the proceedings or
if it was not legally competent for the court to have made such order.”
See also Bakoven Ltd .V. GJ Howes (Pty) Ltd 1992 (2) SA 466
(ECD) at 471 E-1.
In terms of Rule 42 (1) the applicant needs not show good cause. It is
expected of the applicant to show that the order or judgment was
erroneously sought or erroneously granted to persuade the court to vary
or rescind the particular order.
Common law
The application for rescission of judgment in terms of the common law
may be brought on the following grounds: -
(1) Fraud;
(2) iustus error;
(3) discovery of new documents only in exceptional circumstances;
(4) in the instance where default judgment was granted by default.
All what the applicant has to show for the judgment or order to be set aside
is that: -
(1) There must be a reasonable explanation for the default;
(2) The applicant must show that the application was made bona fide; and
(3) The applicant must show that he has a bona fide defence which prima
facie has some prospect of success. See Chetty .V. Law Society
Transvaal 1985 (2) SA 756 at 764 – 765E.
Applicant’s contention
[36] The applicant submitted that the first respondent has instituted at least
four actions relating to the same cause of action against her. The fourth
claim is the one presently before this court. The first respondent withdrew
the first and second actions under cases numbers 257/2008 and
28968/2010 respectively. An action instituted by the first respondent
under case number 4867/2011 was unopposed by the applicant. A default
judgment was granted. The first respondent subsequenty abandoned the
said judgment as it was alleged that the summons were not properly
served and it was served on an incorrect domicilium. The summons
(4867/2011) were ultimately served at the preferred address of the
applicant during August 2015. As the applicant failed to defend the said
action, a default judgment was granted against the applicant. The
applicant launched a rescission application during 2016 to
rescind the default judgment. The basis of her opposition were that inter
alia a repeat of the grounds raised in her 2011 rescission application
which she subsequently abandoned in 2011 application.
[37] The applicant alleged that she has recently discovered two letters dated
14 April 2015 wherein she alerted the first respondent that she has
changed her domicilium address. She argued that summons in the 2015
action was not served by the Sheriff as alleged. Consequently according to
the applicant, the default judgment ought not to have been granted. The
applicant launched rescission application contending that the first
respondent has waived its rights to claim against her when it abandoned
the 2011 judgment and secondly that the claim has prescribed. The
applicant contended that the first respondent failed to comply with the
NCA as it served its Section 129 notice at a wrong domicilium as she has
changed her address as per the letters of 14 April 2015 addressed to the
first respondent. It is the applicant’s submission that her application for
rescission should succeed as she has raised good defences to the first
respondent’s claim.
Respondent’s argument
[38] Counsel for first respondent contends that the applicant failed to make out
a case for rescission. It is argued that the applicant’s evidence as per her
affidavits made under oath, shows lack of bona fides on her part and
serious challenges on applicant’s credibility. The first respondent
submitted that the applicant in her rescission application during 2011
contended the summons was not properly served as it was served at an
address which was not her domicilium. Her application to rescind the 2011
judgment was dimissed as well as her application for leave to appeal. She
attached a copy of a letter which purported that she had changed her
address to 10A Torwood Road, Forest Town Johannesburg. The
Constitutional Court dismissed her application.
[39] In an attempt to curtail further delays and be involved in further rescission
applications, the first respondent and the applicant agreed that summons
be served at the new address being 10A Torwood Road, Forest Town,
Johannesburg. The applicant raised no objections relating to the
domicilium address. As mentioned above in the 2016 rescission application
thus confirming its correctness.
[40] It was argued on behalf of the first respondent that despite the applicant
having confirmed her domucilium address, she changed her tune in this
application and alleges that she actually changed her address as per the
letters of 14 April 2015 to 49 Crown Road Fordsburg Johannesburg. It is
submitted by the first respondent that the applicant’s conduct is the abuse
of the court’s process and demonstrates the applicant’s lack of bona fides
and her credibility. Despite the applicant having abandoned her defences
for waiver of a right to claim and prescription, she again raised the same
defences in her present rescission application. It is submitted by the first
respondent that the aforementioned conduct is an indictment aganst the
applicant’s bona fides and her lack of credibility. The first respondent
contended that the defences raised by the applicant lack merit and are
not sustainable.
[41] According to the first respondent the launching of this application and
pursuit of further applications by the applicant in instances where the
court has already made a determination, the principle of res jiducata bars
the applicant from endlessly bringing applications on issues already
decided by the Court. The first respondent argued that apart from
applicant’s failure to discover the letters under Rule 35 (12) the applicant
is prohibited from raising new defence by the once and for all rule. The
contention of the applicant that her new evidence (letters of 14 April
2015) entitles her to bring this application is unfounded in law. It is the
first respondent’s contention that the applicant’s application for rescission
is not made in good faith and that it is bad in law. Accordingoly the first
respondent prays for the dismissal of the application with costs.
Analysis
[42] It is common cause that the applicant’s attempts to rescind the default
judgments granted against her relating to the claim by the first
respondent were dismissed on three occassions including the ruling
against her by the Constitutional Court. Basically the defences raised by
the applicant in this application are issues already dealt with and
conceded by the applicant in previous applications. The only exception to
those issues are the applicant’s new defence emanating from the letters
dated 14 April 2015 allegedly, she luckily found in her personal file,
contends thereof confirming a change of her domicilium address. At a pain
of repetition the defences referred above pertains to the first respondent
having abandoned its right to claim prescription and the summons having
improperly served at a wrong address.
[43] The applicant having formally abandoned her defences of waiver of the
first respondent’s right to claim, prescription, res judicata ad having
provided a preferred address for service of summons, laid such defences
to rest and in my view cannot be resucitated in this application. It should
be mentioned that when abandoning the 2011 default judgment the first
respondent specifically made it clear that it is in no way abandoning its
claim or right of action. For the applicant to simly persist on this defence
speaks volumes of her mala fides. The applicant’s conduct in my view, is
nothing else but an abuse of court process which hinders the
administration of justice and has to be discouraged.I am of the opinion
that the only defence that needs to be considered is that of the newly
discovered letters of 14 April 2015. The applicant’s contention that by
sheer luck while perusing her file, the two letters reffered to were
discovered is at most questionable.
[44] It is to be noted that the parties agreed that the first respondent is to
institute a new claim which was to be served at the applicant’s address as
contained in an affidavit delivered at the Constitutional Court. Accordingly
and in line with the parties’ agreement the summons was issued during
August 2015 and served at the given address by the applicant. For the
applicant to now disavow what is contained in her affidavit to the
Constitutional Court relating to her domicilium address, surely goes to the
heart of her credibility and bona fides in this application. The court takes
a dim view of the applicant’s conduct and the said conduct cannot
therefore be condoned.
[45] The first respondent called for the discovery of the two letters of 14 April
2015 in terms of Rule 35 (12) and the applicant refused to comply with
her obligations under the Rules of Court to do so. I have to date struggle
to find a congent reason from the applicant why she cannot simply
provide the originals of the said letters. As alluded above, the first
respondent then became excused from delivering its answering affidavit.
However even when the first respondent was not obliged to do so, the
answering affidavit was delivered which to date was met with no response
from the applicant. The question to be asked is whether under the
circumstances of this application, is the applicant entitled to raise her new
defence.
[46] In my view, it is impermissible to allow the applicant to introduce new
evidence in this application as she is barred by the once and for all rule
principle.
The court held in Henderson .V. Henderson (1843) Hare 100 at
page 115 that
“In trying this question I believe that I state the rule of Court correctly
when I say that where given matter becomes the subject matter of
litigation in, and of adjudication by, a Court of competent jurisdiction, the
Court requires the parties to that litigation to bring forward their whole
case, and will not (except under special circumstances) permit the same
parties to open the same subject of litigation in respect of matter which
might have been brought forward as part of the subject in contest, but
which was not brought forward as part of the subject in contest, but
which was not brought forward, only because they have from negligence,
inadvertence or even accident omitted part of their case.”
Our courts have accordingly adopted the once and for all principle
aforementioned in the following cases: -
Bafokeng Tribe .V. Impala Platinum Ltd and others 1999 (3) SA
517 at 562 G-J.
Consol Ltd t/a Glass .V.Twee Jonge Gezellen (Pty) Ltd and
Another (2) 2005 (6) SA (c).
[47] The applicant having raised identical issues and having made
concession in her previous rescission application is prohibited from
embarking ad infinitum on such issues raised lest she flouts the res
judicata principle. The principle of res judicata dictates that in instances
where the issues raised by the parties in a contest between them were
judicially considered by a competent court and a determination made a
party is not allowed to proceed against the other party on the same issue
and cause of action already determined.
The purpose of the principle is to provide finality to litigation and
continued litigation on the same merits already decided upon should be
discouraged.
It was held in Mbatha .V. University of Zululand (2013) ZACC 43
2014 (2) BCLR 123 (CC) at paragraphs 193-197 that a subsequent
attempt by one party to persistently proceed against the other party on
the same cause of action on identical issues should be discouraged.
[48] It is settled law that the doctrine of res judicata has to be carefully
considered in order to avoid actual injustice to the other party and may in
appropriate circumstances be adapted and expanded to avoid
unacceptable alternative that the courts cling to old doctrines with literal
formalism.
i. See Kommissaris Van Binnelandse Inkomste .V. Absa Bank
BPK 1995 (1) SA 653 A t 669 F-H;
ii. Bafokeng Tribe .V. Impala Platinum Ltd and
others 1999 (3) SA 517(B) at 556 E-F.
I find that in this application there are no exceptional and special
circumstances to deviate from Henderson and res judicata principles, in
the contrary, I find that the first respondent will suffer actual injustice and
further hardship as the applicant has been occupying the property under
dispute without effecting any payments whatsoever. I am of the view that
it is time that the dispute between the parties that span over a decade
and half had to come to a finality.
[49] The applicant (Rooksana Dhoda) premised her application in terms of Rule
42 (1) (i.e the default judgment was erroneously sought and granted).
She further contended that she actually have good defences to the claim
against her. It is upon the applicant to establish her bona fide defences
which must be sufficiently disclosed including their nature of grounds.
Where the applicant relies on Rule 42 (1) and / or common law, such
applicant must satisfy the requirements thereof.
[50] The defences relied upon by the applicant (abandonment of the claim by
the first respondent, prescription ad that the summons were not properly
served at her domicilium address) were abandoned by the applicant
herself. A new and fresh defence of discovery of new evidence, (letters of
the 14 April 2015) could not be considered by the Court as the applicant
refused and failed to take this Court into its confidence in producing the
said letters when required to do so. In terms of Rule 35 (12) effectively
the alleged original letters of the 14 April 2015 are not before this Court.
My earlier finding that the first respondent was not and is not obliged and
cannot be compelled to deliver its answering affidavit according to me
sounded a death knell to the applicant’s defence based on late delivery of
the answering affidavit.
[51] An unavoidable question is under the circumstances, which defence(s) are
to be considered by this Court as raised by the applicant?
It goes without saying that the brutal truth in my view, is that there are
no longer defences raised by the applicant calling for determination. I find
that the applicant has failed to establish any bona fide defences to the
claim against her worthy to be ventilated which are competent in law.
[52] The contrary versions contained in the applicant’s sworn affidavits and her
insistence of rehashing defences already dismissed and finalized by a
competent Court, leads in my opinion to only one thing, that is, the
applicant had not been candid and her application falls short in showing
that the application is made bona fide. See Naidoo and Another .V.
Matlala NO and others 2012 (1) SA 145 GNP at 152 H-I.
[53] As far as the requirements of Rule 42 (1) are concerned, are conspicuous
by their absence in the applicant’s papers. It is not sufficient for the
applicant to merely allege that the default judgment was sought and
granted erroneously.
The applicant has among others, show that at the time of the granting of
the judgment the court was not aware of a fact that existed which would
precluded the granting of the judgment or if an irregularity existed in the
proceedings or if it was not legally competent for the Court to do so.
See Monama and Another .V. Nedbank cited above.
[54] Regarding the application for rescission of judgment in terms of the
common law, the Court in Naidoo .V. Matlala NO 2021 (1) SATS 143
at 152 H-I stated that in order for the default judgment to be set aside
the applicant has to satisfy the common law elements and must show that
sufficient cause for rescission exists.
The onus rest on the applicant to give a reasonable explanation which is
acceptable for his default, he must show that her application is made
bona fide and then on the merits he has a bona fide defence which prima
facie has some prospect of success. The averment that the judgment was
erroneously sought and granted is not supported by any evidence.
[55] Having found that there are no bona fide defences and the applicant also
having abandoned her defences, the logical conclusion in my view is that
there is in fact no case before this Court presented by the applicant.
I am of the view that the numerous and endless rescission application by
the applicant are nothing else but an abuse of the Court process with its
sole purpose being to frustrate, delay and drag this matter unnecessarily
and to greatly prejudice the interest of both the first respondent and
administration of justice.
As the adage goes, justice delayed is justice denied. In the premises I
hold that the first respondent did not erroneously grant the order and that
there are no bona fide defences to the first respondent’s claims.
Costs
[56] The first respondent seeks a punitive costs order against the applicant.
It is contended by the first respondent that the sole cause of the delay in
this matter lies with the applicant. The conduct of the applicant is not only
fraudulent but also an abuse of the court process so argued the first
respondent.
It is argued on behalf of the first respondent that the applicant’s
application is not only mala fide but it is also bad in law.
[57] On the other hand the applicant submitted that in the event the Court
granting condonation, the applicant be given an opportunity to deliver its
replying affidavit and tendered costs thereof. Should the condonation
application be dismissed the first respondent’s defence contained in its
answering be struck out with costs.
It is generally accepted that costs follow the results. A successful party is
therefore entitled to his / her costs unless ordered otherwise by the Court.
In Ferreira .V. Levin NO and Others 1996 (2) SA 621 (cc) at 624
B-C par [3] the Court held that the award of costs unless otherwise
enacted, is the discretion of Court. The facts of each and every case are
to be considered by the Court when exercising its discretion and has to be
fair and just to all the parties.
[58] Costs on a punitive scale will only be awarded in appropriate and
exceptional circumstances. A punitive costs order may be awarded in the
event inter alia, that a litigant has been dishonest, reckless, vexatious
frivolous and fraudulent.
[59] Considering the facts of this matter and the conduct of the applicant as
described aforementioned, forces this Court to discourage this flagrant,
dishonest and fraudulent conduct by the applicant. To simply disregard
averments made under oath and contradict this with mala fides and
untruths deserve the sanction of such behaviour by the court. This court
takes a dim view of the conduct which is unacceptable as displayed by the
applicant in her application. It has with respect in my view to be
discouraged.
[60] After considering the facts of this matter I find that the Court and the first
respondent should not have been put through the full process of this
application. The rescission applications on identified issues by the
applicant despite the courts having dismissed them are abuse of the
court’s processes clouded with mala fides and dishonesty. The purpose
thereof being to delay the finalization of this matter to the detriment of
the first respondent with no adverse consequence to the applicant as she
to date occupies and enjoys the benefits of the property at no costs
contrary to the parties’ loan agreement.
A punitive costs is therefore warranted.
ORDER
I therefore make the following order: -
1. The application for condonation for the late filing of the answering
affidavit is granted;
2. The application for rescission of the default judgment is dismissed;
3. The applicant to pay costs on attorney and client’s scale.
__________________________
S S MADIBA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES:
FOR THE APPLICANT: NASEERA ALI
INSTRUCTED BY: VALLY CHAGAN & ASSOCIATES
25 OWEL STREET
AUCKLAND PARK JHB
TEL: 011 834 2233
E MAIL: admin@vallychagan.co.za
FOR THE FIRST RESPONDENT: N KONSTANTINIDES SC
INSTRUCTED BY: VAN HULSTEYNS ATTORNEYS
114 WEST STREET
SANDOWN, SANDTON
TEL: 011 523 5300
E MAIL: daniel@vhlaw.co.za
DATE OF HEARING: 08 MARCH 2022
DATE OF JUDGMENT: 26 SEPTEMBER 2022