Mbizana Local Municipality v Teyise
| Jurisdiction | South Africa |
| Judge | M Gwala AJ and RWN Brooks J |
| Judgment Date | 26 November 2019 |
| Court | Eastern Cape Local Division-Mthatha |
| Hearing Date | 22 November 2019 |
| Docket Number | CA & R62/2019 |
Gwala AJ:
This is an appeal against the decision of the Magistrate for the District of Mbizana (the court, a quo) in terms of which the court, a quo refused the appellant's application for the rescission of the default judgment. In the main the appellant contends that it provided adequate explanation for its default and disclosed a bona fide defence to the respondent's claim, therefore the
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court, a quo erred in dismissing the application for the rescission of default judgment.
The background to the matter is that the respondent instituted an action in the court, a quo claiming payment of an amount of R63, 094.48. The respondent's claim was that in terms of a deed of sale entered into between the appellant and himself he was entitled to all benefits arising from the property which was the subject matter of that deed of sale. On the other hand, the appellant entered into a lease agreement with a third party in terms of which the third party was given permission to place advertising boards on the walls of the property and paid monthly rental to the appellant.
The respondent claimed that as a result of the lease agreement the appellant reaped some benefits from the property which otherwise was due to him in terms of the deed of sale and thus the appellant was somewhat unduly benefited. It then instituted an action in the court, a quo claiming that benefit. The appellant defended the action and appointed attorneys in Mthatha who in turn appointed other attorneys back in Mbizana as correspondent.
On Friday 27 January 2017, the respondent served a notice of bar upon the correspondent attorneys representing the appellant. The appellant was required to file its plea within five date from the date of service of the notice of bar. The plea was due on 03 February 2017. The appellant failed to deliver its
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plea or any subsequent pleading within that period and it became ipso facto barred.
On 08 February 2017, the appellant delivered a "notice of exception" upon the respondent's attorneys. It contended that the particulars of claim were vague and embarrassing and accordingly afforded the respondent an opportunity to remove the cause of complaint within 15 days of service thereof failing which it would take an exception.
The respondent, apparently, was content with his pleading and did not remove the cause of complaint. Instead he filed what he called "notice of objection to the proposed exception by the defendant". The appellant on the other hand did not file an exception as initially indicated despite the fact that the cause of complaint was not removed within 15 days.
On 14 September 2017, the respondent took an initiative to deliver upon the appellant's correspondent attorneys a notice of set down in terms of which the exception was set down for hearing on 13 October 2017. It escapes me what would happen on 13 October 2017. In my view there was no longer an exception to set down to begin with because the appellant's notice of exception had lapsed when it did not deliver the exception within 10 days upon
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the expiry of the 15 days for the removal of complaint which, as I said, was not removed. [1]
As aforesaid, it is not clear what would happen on 13 October 2017. The following appears though from the reasons for judgment filed by the court, a quo that "… The matter was set down for hearing of the exception on 13 October 2017 but was eventually heard on 04 April 2018. The objection to the exception raised by the plaintiff was upheld…"
There does not appear to be a procedure for objection to exception in the Magistrate Court Rules. I was unable to find one. Perhaps what was intended was to raise an objection that the step taken by the appellant to file an exception at a time when it was ipso fact barred constituted irregular proceedings in terms of Rule 60A. However, if that was the intention, the notice of objection did not take a form compliant with that Rule in many respects. [2] Perhaps the notice of objection was simply a notice to oppose which ordinarily is not necessary in respect of exceptions.
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On 09 October 2018, the respondent delivered a notice of set down which was served upon the appellant's...
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