PB Tshabalala Investment (Pty) Ltd v Islam Properties CC and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Langa J
• Judgment Date: 13 December 2022
• Docket Number: 4617/2019
• Hearing Date: 13 December 2022
• Citation: 2023 JDR 0035 (MN)

Langa J:

Introduction and background

[1]

This is an opposed application for the rescission of a default judgment granted by this court on 08 February 2019 against the applicants in favour of the first respondent, Islam Properties CC. This application was set down for hearing by the first respondent after the applicants failed to file the replying affidavit as well as the heads of argument. The applicants' attorney only appeared late on the day of hearing and even then no heads of argument had been filed.

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Langa J

[2]

This litigation arises out of a written lease agreement entered into by the parties on 14 September 2016. In terms of this agreement the applicants rented the premises called Ginger Lounge situated at 90 Oliver Tambo Street, Emalahleni for a monthly rental of R45 000.00. On 10 October 2019 the first respondent instituted an action against the applicant claiming an amount of R1 090 000.00 for arrear rental for the period August 2016 – May 2018.

[3]

Although the applicant averred that they served and filed a notice to defend the action on 26 November 2019, this cannot be correct as the summons was served on 21 November 2019 and the notice of appearance to defend is dated 21 January 2020. However, subsequent to this notice of appearance to defend, the applicants failed to file a plea until 25 March 2020 when the first respondent placed the applicant on bar. The applicant only served the plea on 13 May 2020 without lifting the bar or applying for condonation for the late filing of the plea. On 08 February 2021 the first respondent obtained a default judgment against the applicants. The first respondent proceeded to execute against the applicants and it was only thereafter on 12 October 2021 that the applicants brought this application for the rescission of the judgment.

[4]

It is common cause that the applicants did not serve and file the plea until 25 March 2020 when the first respondent served them with a notice of bar. In the application for rescission the applicants contended that the reason for the delay in the filing of the plea was the declaration of the National State of Disaster (National Lockdown) on 26 March 2020. The applicants argued that they could only serve the plea after the end of April 2020 after the easing of the lockdown. The applicants'

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Langa J

explanation only deals with the period after the notice of bar was served and says nothing about the period from 26 November 2019 up to 25 March 2020.

Default

[5]

I will first deal with the applicants' default. It is clear from the applicants' own affidavit that the plea was filed on 13 May 2020 which was outside the bar period. As stated above, there is no averment by the applicants that the bar was lifted. The applicants have also made no application for condonation of the late filing of the plea. Rule 27 makes provision for the extension of time and removal of bar as well as condonation and provides as follows:

(1)

In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any step in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet.

[6]

The Rules of court are there for a purpose and parties are expected to adhere thereto. Where there is unexplained non-compliance with the rules there are consequences. In this case it is clear that the applicants filed the plea out of time and while there was a notice of bar. It is also common cause that they have not applied for the lifting of the bar before filing the plea. After having failed to remove the bar and/or to apply for condonation, the applicants were not entitled to file the plea as they did. The plea in essence remains a nullity as they are ipso facto barred from

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Langa J

the time the dies for the filing of the plea expired. The first respondent was in the circumstances therefore entitled to proceed to approach court for the granting of default judgment against the applicants as it did. The court therefore correctly granted the judgment by default. The applicants fail to explain their failure to comply with the rules in this respect.

[7]

It is trite that good cause is a requirement for any extension or abridging of time and for the condonation of non-compliance with the rules. There is...