Ramalephatso Industries CC and another v Nyumba Mobile Homes & Offices (Pty) Ltd
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Opperman J |
| Judgment Date | 15 September 2023 |
| Citation | 2023 JDR 3458 (FB) |
| Hearing Date | 03 August 2023 |
| Docket Number | 1719/2015 |
| Court | Free State Division, Bloemfontein |
Opperman J:
INTRODUCTION
Litigants may not be allowed to turn their backs on the justice system and the court and walk away as, and when, and how it suits them. Access to courts in terms of section 34 of the Constitution of the Republic of South Africa, 1996 is a basic human right. The Constitutional Court [3] was clear and unyielding when it was ruled that:
In this matter, this Court is being asked to rescind the judgment and order that it handed down in respect of contempt of court proceedings launched against former President Jacob Gedleyihlekisa Zuma for his failure to comply with an order of this Court. Ironically, the judgment now impugned, contains a thorough exposition of the rule of law and its fundamental importance to South Africa’s constitutional democracy. Indeed, it says, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law” in South Africa. Yet, with the finality of its decision questioned, this Court, once again, finds itself tasked with defending the integrity of the rule of law.
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Opperman J
. . .If our law, through the doctrine of peremption, expressly prohibits litigants from acquiescing in a court’s decision and then later challenging that same decision, it would fly in the face of the interests of justice for a party to be allowed to willfully refuse to participate in litigation and then expect the opportunity to re-open the case when it suits them. It is simply not in the interests of justice to tolerate this manner of litigious vacillation. (Accentuation added)
The order [4] hereunder, and the warrant of execution that was issued consequent thereto, is the subject of the application for rescission.
IT IS ORDERED THAT:
The fourth and fifth defendants jointly and severally to pay the amount of R 313.268.09 (three hundred and thirteen thousand, two hundred and sixty-eight rand, and nine cents) to the plaintiff.
The fourth and fifth defendants jointly and severally pay interest on the amount in paragraph 1 calculated at a rate of 10,5% per annum from 27 June 2013 to date of final payment, both days inclusive.
The trial against the sixth and seventh defendants is removed from the roll.
The fourth and fifth defendants jointly and severally pay the costs of the action on a scale as between attorney-and-client.
The order was granted on 7 March 2023 because the fourth, fifth, sixth and seventh defendants were absent from the trial set down for three days, being the 7th, 8th and 10th of March 2023.
The fourth and fifth defendants conducted their business as a joint venture in the cause that brought the matter to litigation. They have as their sole members the sixth defendant, Graham Takatso Lehetla (“Mr Lehetla” or “TK”) and the seventh defendant, Carlton Pule Shakwane (“Mr Shakwane”) respectively.
The application, filed on 31 March 2023 that serves for adjudication before court, wants the following orders:
Rescinding and setting aside the default judgment granted on 7 March 2023 against the first and second applicants;
2023 JDR 3458 p4
Opperman J
Rescinding and setting aside the warrant of execution issued in pursuance of the said default judgment;
The Applicants tender the costs for this application, if not opposed.
THE ARGUMENTS
The application for the rescission of the 7 March 2023 – order is according to the applicants’ heads of argument, based on two legal grounds.
The rescission is sought on two fronts. The first being that the judgment was erroneously sought or erroneously granted in the absence of the applicants, [5] and secondly that the applicants were not in willful default and that they have a bona fide defence to the respondents claim.
Further, on page 8 of their heads of argument counsel for the applicants states that:
It is likewise common cause that van Vuuren withdrew as an attorney of record for the applicants, and for Lehetla and Shakwane, in the main action. The reasons for such withdrawal, and whether the applicants were in willful default, are not relevant for the determination of the question whether the judgment was erroneously sought or granted and will be dealt with when the provisions of the common law or rule 31 are discussed hereunder.
It is trite that judgment in the absence of a party at trial stage, [6] may only be granted if the trial court is satisfied that the party who is in default was aware of the proceedings, and most importantly, in casu, that the notice of withdrawal as attorney of record, was delivered on all the parties in compliance with rule 16 of the Uniform Rules of Court. (Accentuation added)
The respondent is of the view in their heads of argument that:
The judgment was granted due to the willful, reckless, and admitted negligence of the applicants. It is submitted that our courts will generally not entertain a rescission application when the litigant had an opportunity to defend himself, but willfully and recklessly failed to do so. Such litigants must accept the consequences of their own conduct.
From the reading of the case for the applicants it is not clear; but it seems as if they rely on rescission in terms of the common law, rule 31(2)(b) and rule 42(1) of the Uniform Rules of Court.
2023 JDR 3458 p5
Opperman J
I take a step back to depict the facts of the case for perspective; this is the default and the merits of the claim itself.
THE PRELUDE TO THE DEFAULT AND THE DEFAULT
On 13 November 2022 Mr Lehetla, according to him, was advised that the matter was on the roll for March 2023.
The notice of set down for the trial was served on the applicants’ attorney on 30 November 2022.
On the same day the attorney addressed an email to Mr Lehetla to inform him of the trial. The attorney confirmed that he attached the notice of set down to the email. Mr Lehetla had to have full knowledge and understanding of the dates.
Although Mr Shakwane alleges that he never received the notice of withdrawal the respondent’s attorney made enquiries with the erstwhile attorneys of the applicants and was informed that the joint venture was at all times represented by Mr Lehetla. Mr Lehetla informed the erstwhile attorney that he is the responsible person, and all contact and communication should be with him. The erstwhile attorney’s invoices were always sent to Mr Lehetla but paid by both applicants. This information was confirmed under oath by said attorney in annexure “AA23” on pages 270 to 271 (paragraph 3) of the bundle indexed on 14 June 2023. [7]
. . . I specifically confirm that although I legally represented the 4th to 7th defendants in the matter, my only communications were with the sixth respondent, known to me as TK. TK informed me that he was authorised to instruct me on behalf of all the mentioned defendants, and I had no reason to doubt his assurance.
At paragraph 8.5 of his statement [8] Mr Shakwane admitted that: “There was however little communication between my attorney’s and myself as the sixth defendant occasionally informed me what the progress of the matter was.” It is trite that a litigant must take
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Opperman J
responsibility for the management of his case; he may not sit back and wait for news. He paid the invoices submitted by the attorneys and must have had some inquiries as to the detail of the services rendered.
Mr Shakwane states his address in his confirmatory affidavit to be at 32 Mostert Street, Nelspruit, Mpumalanga Province. The address that his attorney had of him according to the notice of withdrawal is Stand 30, Kabokweni and Sizampilo Projects CC at 119 Nkhohlakalo Trust, Kabokweni.
It is vital to realize that Ramalephatso Industries CC and Sizampilo Projects CC entered into the contracts that caused the action as a joint venture. The one’s business was the business of the other. “GTL03” at page 42 of the bundle shows the letterhead of “Sizampilo Projects & Ramalephatso Industries” as one entity with email takatsolehetla@yahoo.com. It is also undisputed that Mr Lehetla took the lead in the communications with the attorneys. The notice of withdrawal as per page 269 of the bundle “AA22” was served on this address. Perusal of the papers before the court shows that communication was to this address.
In addition, “GTL03” shows that the joint venture has only one physical address, one landline number, one fax number, one cell phone number and one email address: takatsolehetla@yahoo.com. The joint venture operates under one registration number namely: 1998/026599/23. The address is “Suit No: 140 CALTEX BUILDING, 32 BELL STREET, NELSPRUIT”. If the applicants wanted service and communication at any other address, they had to indicate this to their attorney and in the contract.
In an email of 30 November 2022, the legal representative requested Mr Lehetla that counsel be appointed, and consultations be finalized.
Mr Lehetla responded immediately and as follows:
Your email is noted.
But as I explained to you earlier via our telephone conversation, I suggest I should get my Own Affordable Advocate to work with you on this matter, I can pay your Fees directly.
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Opperman J
On 19 January 2023 the attorney had not received any further instructions from Mr Lehetla and addressed another email to him wherein he enquired about the appointment of an advocate and in addition, requested him to make payment of the deposit in respect of the attorney’s fees as was agreed.
Later in the day on 19 January 2023 Mr Lehetla responded that he will visit Bloemfontein “sometime next month to understand the attorney’s account”. No mention was made of the appointment...
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