There
is a long history of litigation between the parties as evinced by the
cross-references cited…,. The history can be summarized as follows.
The
parties' relationship stems from a lease agreement originally
signed between the applicant and a company called Endurite (Pvt) Ltd.
The respondent bought the property, the occupancy of which is at the
centre of the dispute from Endurite (Pvt) Ltd.
At
the time, the applicant was a sitting tenant. The applicant remains a
tenant of the respondent by operation of law.
In
or about May 2009 the respondent issued summons in the main matter.
Almost immediately after, in June 2009, the respondent issued an
urgent chamber application. By the time it was served on the
applicant a provisional order had been granted. I do not think that
there is need to discuss the contents of the provisional order in
detail, save to state that it shut the applicant down on the basis of
perfecting the landlord's hypothec. The applicant's business has
been closed since June 2009 as a result of this latest batch of
litigation.
When
the summons was served, the Director of the applicant was out of the
country. On his return he emailed detailed instructions to his
erstwhile legal practitioner, Mr Majoko,
providing answers and defences to both the summons and the chamber
application. For some reason I cannot understand, Mr Majoko
agreed to represent the applicant notwithstanding that he had
previously acted for the respondent.
In
this email, the applicant evinced a strong desire to defend the case
and the applicant proffered defences to the claims. The applicant
left everything to its legal practitioner, Mr Majoko,
under the belief that the matters were being defended.
Instead
of defending/opposing the matters, Mr Majoko
chose to negotiate with the respondent. Mr Majoko
was
trying to achieve an amicable solution to the dispute. No papers were
filed timeously on behalf of the applicant during these negotiations.
This resulted in a default judgment granted in favour of the
respondent against the applicant under case number HC815/09.
This
application is for rescission of the said judgment.
The
applicant moves this application for rescission on two alternative
grounds. The first, and principal, is that the default judgment was
granted by error. It is submitted by the applicant that this judgment
should be set aside in terms of Order 49 Rule 449 of the High Court
Rules, 1971, as it was granted by error.
The
alternative ground upon which rescission is sought is the ordinary
ground, being that the papers filed by the applicant show good and
sufficient cause for rescission of the judgment.
I
propose to consider these grounds in turn.
Judgment
granted in error
It
is trite law that the court has both a statutory and a common law
power to reverse a judgment that has been granted in error or under
circumstances that indicate some irregularity. In Mudzingwa
v Mudzingwa
1991 (4) SA 17 (ZS) GUBBAY JA…, made the following statement –
“Furthermore,
it is firmly established that a judgment can only be rescinded under
the common law on one of the grounds upon restiitutio
in integrum
would be granted, such as fraud or some other just cause, including
justus error..,. Certainly, a litigant who is himself negligent and
the author of his own misfortune will fail in his request for
rescission – see Voet
2.4.14;
Groenewald
v Gracia (Edms) Bpk
1985 (3) SA 968 (T) at 972C-D and G – H.”
See
also Jones
v Strong
SC67-03 and Yong
Goo Cho v Stalin Mau Mau
SC03-05.
It
was submitted that there was justus error in this case. Such error,
it was submitted, was on the part of the court, and was induced by
certain non-disclosures and misrepresentations made by the respondent
in its papers founding the urgent chamber application. In its papers
under HC815/09, the respondent failed to disclose to the court the
existence of an order previously granted in a similar dispute over
rent between the parties. That order was granted in case number
HC3256/04 and reads, in the material part, as follows:
“The
parties agree that CB Richard Ellis shall determine a reasonable
market rental in respect of the said premises from the 1st
December 2004, and for the entire duration of the respondent's
occupation of the premises.”
This
order was granted by consent of the parties. It sets down a conflict
resolution procedure for any further disputes on rentals between the
parties. A neutral arbiter was appointed, by consent, to assess
reasonable rentals for the disputed premises from time to time, for
the entire duration that the applicant (who was the respondent under
case number HC3256/04) would be in occupation of the premises.
It
is common cause that the present dispute was, in the main, a dispute
over rentals. It is also beyond dispute that the dispute arose during
the applicant's occupancy of the premises. It is clear from the
papers that the respondent did not have the rentals determined by the
above-mentioned estate agent. The respondent unilaterally set the
rentals and then demanded these rentals from the applicant, who
disputed them. The dispute, as alluded to above, fell to be
determined squarely under the consent order.
The
respondent was supposed to have disclosed the existence of this
consent order when it made the application under HC815/09.
It
is trite law that the court may set aside a judgment granted in error
where the judgment would not have been granted had the court been
fully aware
of certain facts – Nyingwa
v Moolman NO
1993 (2) SA 508 (Tk);
Topol
v Ls Group Management Services (Pty) Ltd
1988
(1) SA 639 (W); and Holmes
Motor Co v SWA Mineral and Exploration Co
1949 (1) SA 155 (C).
In
my view, the non-disclosure of the above-mentioned consent order did
lead to the judgment being granted in error. The court would not have
granted the judgment had it been aware of the existence, and
provisions, of the consent order.
Accordingly,
on this point alone, the default judgment must be rescinded.
It
is therefore ordered as follows:-
(1)
That the judgment entered by this court against the applicant in case
number HC815/09 be and is hereby rescinded.
(2)
That the respondent pays costs of this application on an ordinary
scale.
