. IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: YES/NO (2) OF INTEREST TO OTHERS JUDGES: YES/NO

(~:-~1;;;,;~--. ~ ¥...~'.~.=.-: .. --DATE SIGNATURE

In the matter between:

KUNGWINI EST ATE (PTY) LTD

and

KUNGWINI MANOR EST ATE HOMEOWNERS

ASSOCIATION (NPC)

C/0 THE MUNICIPAL MANAGER

REGISTRAR OF DEEDS

KUNGWINI ERF 10 HOME OWNERS

ase No: 53219/2012

Applicant

First Respondent

econd Respondent

Third Respondent

ourth Respondent

ASSOCIATION (NPC)

DAMSIG ERF 7 HOME OWNERS ASSOCIATION (NPC) KUNGWINI RANCH HOME OWNERS

ASSOCIATION (NPC)

KUNGWINI BAY HOME OWNERS ASSOCIATION (NPC)

KUNGWINI BAY HOME OWNERS ASSOCIATION (NPC)

KUNGWINI PARK HOME OWNERS ASSOCIATION (NPC)

JUDGMENT

MOKADIKOA-CHAUKE AJ

INTRODUCTION:

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Fifth Respondent

Sixth Respondent

eventh Respondent

Eighth Respondent

Ninth Respondent

1 . The Applicant (First Defendant brought an application for an o der in the following

terms:-

1.1 That the order granted under Case No. 53219/2011 be scinded.

1.2 That the Respondents pay costs of the application inc uding costs of two

counsel .

2. The rescission application was brought in terms of Rule 42 ) alternatively for

variation of the order that was granted on the 101h February 2 15. The Applicant

alleges that the order was erroneously sought by Plaint s and therefore

erroneously granted by Ledwaba DJP.

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3. The Court is required to determine whether the said order sh uld be rescinded or

not.

FACTS BRIEFLY:

4. The Plaintiffs instituted an action against the First Def ndant and Second

Defendant (Municipality amongst other Defendants) under t e above mentioned

case number for the relief as set out in the particulars of claim

5. The prayers were that:-

5.1 First Defendant. is ordered to install a bio-filter sewera treatment plant in

compliance with the conditions of establishment

agreement with the Second Defendant;

5.2 First Dendant is ordered to supply water fit for huma consumption on a

continuous basis against payment of an amount equal o the tariff charged

by the Second defendant;

5.3 The Notarial Servitudes registered under registration n mbers K06/06322

and K06/06324 be declared null and void and unenforc ble;

5.4 First Ddefendant is ordered to connect the Kungwi i Country Estate

township to the Eskom power grid at its own cost;

5.5 Costs of suit, including the cost occasioned by the ployment of two

counsel;

5.6 Alternatively as against the Second Defendant in the

Defendant has not complied with the terms of the abov order within four

months from date of this order:-

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5. 7 Connect Kungwini Country Estate township to a viable treatment plant;

5.8 Supply water fit for human consumption on a conti uous basis against

payment of the usual charges collected from consume s;

5.9 Costs of suit, including the costs occasioned by the employment of two

counsel;

6. The Plaintiffs proceeded to Court by default and in the absen e of the Defendants

to seek an order, the order sought by Plaintiff and grant by default in the

absence of the Defendant dated the 1 oth February 2015 by he Honourable Mr.

Justice Ledwaba DJP reads thus:

"1. That the First Defendant is to install a bio-filter ewarage treatment

plant in compliance with the conditions of est blishment and the

engineering agreement with Second Defendant.

2. That the First Defendant is to supply water fit for hu an consumption on

a continuol)s basis against payment of an amoun equal to the tariff

charged by the Second Defendant.

3. That the notarial servitudes registered under Ii gistration number

K06!06322 and K06/06324 be declared nu/ and void and

unenforceable.

4. That the First Defendant is to connect Kungwi i Country Estate

township to the Eskom power grid at its own costs.

5. That the First Defendant is to pay the costs of suit eluding the costs

occasioned by the employment of two counsel.

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6. That the orders in prayers 2 including (2.1-2.5) are postponed sine die.

7. Plaintiff brought an action as stipulated in the particulars of laim. After receiving

summons and particulars of claim, the Defendant had filled is notice of intention

to defend and subsequently its plea, inter alia, pleaded non-j inder of a non-profit

company by the name of Aqua Vista Home Owners Associ tion. This company

was also not part of the proceedings on the 101h February 015. When default

judgment was granted, the Defendants allege that they made an application for a

joinder of Aqua Vista. Home Owners but Vista was not interest d.

8. After close of pleadings the matter was set down for trial on 1 February 2015.

9. In the absence of the First and Second Defendants, de ult judgment was

granted as already stated above, due to the fact that the A plicant was not at

Court. The Applicant brought this rescission application. I their papers the

Applicants explain the reason why they were absent from C urt, placed various

grounds on record, (see: pgs 175-179 of the papers, (recor ) is that due to the

fact that they did not place their attorneys with funds, the at rney withdrew as

attorney of record· shortly before the trial date without informi g them of the said

date. (inter alia).

1 O. It is on record that the said order was served on the Applica on the 5 th March

2015 by registered mail.

11. Subsequent to a default judgment, an application for contempt f Court order was

filed but still pending before Court. The particulars of conte pt application are

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however, irrelevant for purposes of the application because ourt is adjudicating

upon an issue of costs.

12. The point is that on the 101h February 2015 and in the abse ce of the Applicant

and in the absence of Aqua Vista, the Respondents sough a default judgment

and only against the First Defendant not the Second Defend nt as initially prayed

for in the particulars of claim. From interpretation of the pr yers sought in the

particulars of claim, the order was intended to have an alterna ive in taking certain

steps. In terms of the relief sought the Applicant does not h ve an option but to

comply. The order against Second Defendant was not post oned sine die. The

formulation of the order did not have a suspensive conditio as initially sought.

The particulars of claim originally had an alternative relief agai st the municipality.

The Municipality has a statutory obligation arising from mongst others, S

152( 1 )(b) of the Constitution of the Republic of South Afri a 108 of 996 (the

Constitution) which states that: ..

"The object of local government are to:

(1) Ensure the provision of services to communitie in a sustainable

manner such obligation is further emphasised in terms of the

Municipalities Act.

13. Now returning to the order of the 101h F~bruary 2015, the relie sought on the day

at Court and by default does not translate to unconditional order against the

Applicant and the Municipality. The Applicant is legally compe ed to comply with

the order without an alternative relief.

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14. The Defendants sought a relief more than it initially asked fo and to which it was

not entitled to without proper notice to the Applicant, or its intention to ask for

amended relief.

15. In terms of the order sought and granted the Applicant does not have an option

but to comply with the said Court order, failing which, the Ap licant will be held in

contempt.

16. The Applicant alleges that it only realised when the conte pt application was

served upon it that the order granted on the 1 oth February 201 was different from

what was initially sought from the particulars of claims served.

17. The initial prayers sought were done In the alternative, in the vent the Applicant

do not comply with its obligations as aforesaid, then the Re pondents pleaded

that the Second Defendant was under a statutory obligati n, as pleaded, to

supply the Municipal services at its usual tariff to the residents ithin the township.

18. The Respondent allege, on the other hand, that the Applicant ook time to launch

the rescission of judgment application, to be precise it took the eight (8) months.

The time taken by the Applicant is not reasonable and tha the Court should

refuse to rescind the order and to exercise its discretion in favour of the

Respondent.

19. Furthermore, the Respondent allege that the Applicant has fail d to make out any

basis for the relief sought in terms of Rule 42.

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The Applicant now seeks to rescind the default judgment leging the following

irregularities:-

THE FIRST PROCEDURAL IRREGULARITY:

20. Relief cannot be sought or granted which is substantia y different to that

specifically claimed, unless the basis thereof has been fully canvassed, viz the

party against whom such relief is to be granted has been full apprised that relief

in this particular form is being sought and has had the fullest o portunity of dealing

with the claim for relief being pressed.

21 . It is clear from plain reading of the particulars of claim that the irst Defendant had

the option to comply with the order and should the First Defe dant decide not to

comply with the order or should the First Defendant be unable o comply therewith

for whatever reason, then and only in that event would the order be operative

against the Second Defendant.

22. On the date of the hearing of the matter the Plaintiff sought a order against the

First Defendant which does not accord with the order sought n its particulars of

claim. Put it differently, the Plaintiffs asked for more relief t an what it initially

asked for and to which it was not entitled without proper otice to the First

Defendant of its intention to ask for different relief.

23. In terms of the order that was granted against the First D fendant, the first

Defendant (Applicant) does not have a choice but to comply ith the said court

order, failing which they will be in contempt.

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24. The First Defendant was never notified of the Plaintiff's intent n to seek relief that

would be at variance with the relief sought in the particulars o claim.

25. It is common cause that the First Defendant was never infor ed about the relief

that was going to be sought nor was it given the opportunity t address the above

Honourable Court in this regard.

THE SECOND PROCEDURAL IRREGULARITY:

26. In Marais v Standard Credit Corporation Ltd 2002 (4) SA 8 2(W) 897A-B it was

decided that Rule 42(1 )(a) covers a matter where relief is sou ht on particulars of

claim which do not contain a cause of action,

nothing to sustain a judgment.

ds where there is

27. The particulars of claim contain no cause of action against th First and Second

Defendants for the following reasons:~

27.1 The conditions of township establishment relied upo by the Plaintiff in

paragraphs 6.8 to 6.10 of its particulars of claim as rming part of the

conditions of township establishment and upon which t Plaintiff relied for

the relief sought in prayer 1 do not appear in the aid conditions of

township establishment.

28. The terms referred to in paragraphs 6.8 to 6.1 0 of the Plaintiff's articulars of claim

form part of the services agreement between the First Defendants and

Bronkhorstspruit Transitional Council. The Plaintiff was n er privy to this

agreement, this is clear from the contents of the particulars of cl

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29. No case is made out in the par1iculars of claim as to why th Plaintiff can rely on

the terms of the services agreement to which the plaintiff was

30. The Plaintiff alleges that the notarial servitudes contained te s that were contra

the conditions contained in the conditions of township est blishment and the

services agreement rendering the servitudes null and void. Th y further allege that

the servitudes do not contain a single term that conflicts with he provisions of the

conditions of township establishment and the services agreem nt.

31. No case is made out as to why the terms contained in the no arial servitudes are

unlawful and contrary to public policy. In this regard the partic lars of claim do not

contain a single allegation that is good in law.

32. Furthermore, the order granted in terms of prayers 2. 4 and 2. of the Court order

granted by the DJP on 10 February 2015 are ineffective in that it does not state on

which terms and conditions the services 3hould be rendered.

THE THIRD PROCEDURAL IRREGULARITY:

33. There is nothing on the court file that indicates that Aqua Vista as properly joined

as a party when the court order was granted by Ledwaba DJP on the 101h

February 2010 but the Respondents alleged that there was a ·oinder application

which was ignored. Aqua Vista was not interested in the matter.

34. An order that is granted which affects a party not joined i the proceedings

amounts to a brutum fulmen and constitutes a procedural irregul rity.

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TIME FRAME FOR APPLYING FOR A RESCISSION:

35. Rule 42 does not lay down a time within which the applicati n must be brought.

There is therefore nothing requiring or capable of condonatio by the Court. See

Schmidlin v Multisound (Pty) Ltd 1991(2) SA 151 (C) 155 . However in, First

National Bank of SA Ltd. v Van Rensburg No and others 1 94 (1) SA 677(T) it

was laid down that the application must be brought within reas nable time.

RESPONDENTS'S CONTENTIONS:

36. The Applicant bases its application for rescission solely on Rule 42(1) of the

Uniform Rules of the Honourable Court.

37. In its Founding Affidavit the Applicant seeks rescission, alter atively variation of

the order granted on 10 February 2015 which the Appl cant alleges was

erroneously sought and erroneously granted.

38. The Respondent dealt with the following aspects in its papers:-

38.1 The Applicant's knowledge of the trial date;

38.2 The alleged reason why the order was erroneously so ht or erroneously

granted, namely:-

38.2.1 Failure to join a third party;

38.2.2 No cause of action is disclosed in the particulars f claim;

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38.2.3 The order granted was at a variance with th relief sough in the

particulars of claim; and

38.2.4 Delay in bringing the rescission application.

THE APPPLICANT'S KNOWLEDGE OF THE TRIAL DATE:

39. The Opposing Affidavit evidence alleges undoubtedly t at the Applicant's

allegation of facts on reasons why it was not at Court on th day when default

judgment was granted is a blatant untruth under oath. Faced ith the exposure of

its knowledge, the Applicant adopts the stance that whethe the applicant was

aware of the trial date is irrelevant for purposes of Rule 42.

40. The Applicant must show good /sufficient cause that it is entitle to rescission.

41. The Applicant must give a reasonable explanation for his defau

42. Shows that his application is bonafide.

43. Shows that the on merits he has bona fide defence which rima facie carries

some prospects of success.

See: De Wet v Western Bank Ltd 1979(2) SA 103 (A) at 10 F-1043A.

CONSIDERATION:

44. If there existed a fact that the Judge was unaware at the time o granting an order

which order made was not in the alternative prayer as sought riginally from the

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particulars of claim this amount to a deliberate misrepresenta ion of the facts and

the order would be erroneously sought.

45. The Respondent deviated from the prayers as set out in their particulars of claim,

without informing their opponents of their intention to do so.

46. It is believed that in light of the heavy workload of the DJP, d ty at roll call, there

was a duty on the Respondent's Counsel to explain to Court t e difference on the

order sought in their prayers and order sought at Court.

47. As such, they erroneously sought a different order in part a d abandoning the

other portion to the disadvantage of and in the absence of the

48. This Court finds that the judgment was erroneously sought.

49. At the outset the Applicants pointed out that the Rule 42 is aime at the rescission of

judgments based on procedural irregularities with the view that storing the parties

to their previous positions before the irregularity occurred. It puts them to their

previous positions before the irregularity occurred. The matter II finally get its day

in Court for consideration on merits. All parties presenting their f ts before Court for

consideration and all parties finally putting their version of facts to final consideration.

Rule 42 provides for a remedy distinctly different from the retie allowed under the

common law. Its requirements are prescribed by the wording of th rule itself and are

not imported from common law. The common law requirement f sufficient cause,

namely the giving of a reasonable and satisfactory explanation or the default and

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the showing of a bona fide defence which prima facie carrie some prospect of

success are irrelevant considerations within the context of Rule 2(1)(a).

COSTS:

50. The Applicant was already served with the set down in accor nee with the Court

Rules for hearing at the time when it had issues with its attorney There was no need

for the Respondents to serve any further notices in connectio with the trial. The

Applicant even without legal representatives should have appea d in Court and give

explanation or at best _ seek a postponement to seek further I gal assistance but

instead the Applicant chose to stay away and disregarded the

failed to appear in Court.

51. Neither the Applicant nor the legal representatives appeared in ourt, and under the

circumstances, the Respondents' Counsel was fully entitled t apply for Default

Judgment. The only issue is that the default judgment sought wa not in terms of the

particulars of claim. The order was sought and granted an not made in the

alternative and this was not communicated to the Applicants. Fu hermore, where an

application for an indulgence is granted, who should pay for co ts of opposition to

such application as is the case in the present matter.

See: MacDonald Forman & Co. v Van Aswegen 1963 (2) SA 150 (0) 155

It was held that the Applicant who seeks for indulgence should pay II such costs. It is

under the circumstances reasonable that the Applicants pay for wasted costs for

indulgence sought in this matter.

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CONLUSION:

The Court is satisfied that the Applicant has shown good cause why t e Default Judgment

should be rescinded by its explanation as shown above. The Court is lso satisfied that the

rescission application was brought in good faith albeit the Court doe not agree with the

time lapse between default judgment and bringing of rescission ap lication period, the

Court also frown at the Applicant's attitude to ignoring the set down, d sregarding notice of

set down the Court believes that this application would not be necess had the Applicant

reacted to the notice of set down. And furthermore the Court is satisfi d that on merits the

Applicant have a bona fide defence. However, the Court believes th t the Respondents

would have never expended funds to oppose the rescission applicati n if the Applicants

appeared in Court on the 101h February 2015.

For reasons stated above, I make the following findings:

Having heard, counsel for both parties and having read the document ,

It is ordered that:-

1. The default judgment granted on the 101h February 2015 b Ledwaba DJP is

hereby set aside.

2. Rescission of judgment is granted.

3. The Applicant is ordered to pay the wasted costs occasione by the rescission

~ M. M. MOKADIKOA-CHAUKE [Acting Judge of the High Court of South Africa, Gauteng Division, Pretoria]

For the Applicants: Advocate Alwyn B. Rossouw SC

and by J HA Saunders

For the Respondents: R. Du Plessis SC

Instructed by:

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