Sasfin Bank Ltd and Another v Melamed and Hurwitz Incorporated and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Todd AJ
• Judgment Date: 24 August 2022
• Docket Number: 31948/19
• Hearing Date: 16 August 2022
• Court: North Gauteng High Court, Pretoria
• Citation: 2022 JDR 2519 (GP)

Todd AJ:

1.

The Applicants seek the rescission of an order granted by default judgment on 26 November 2019, to set aside a warrant of execution issued pursuant to that order, and certain ancillary relief.

2022 JDR 2519 p2

Todd AJ

2.

Judgment was granted in favour of the First Respondent only. The rescission application cites both Respondents, but in this judgment I will refer simply to the First Respondent, or the Respondent, being the party in whose favour judgment was granted.

3.

The application for rescission is brought under the provisions of Rule 42 of the Uniform Rules, alternatively under Rule 31(2)(b), alternatively under the common law. The application was instituted during June 2021, more than 18 months after the judgment was handed down and approximately 10 months after the judgment first came to the attention of the Second Applicant.

4.

The Second Applicant was an attorney practicing as a director of the First Applicant firm from an address situated at No. 70 Oxford Road, Riviera in Johannesburg. The firm ceased practicing during 2013 and the Second Applicant is the sole surviving director of the firm.

5.

The order which the Applicants seek to rescind was for payment of an amount of R115,819 .72 together with interest on that amount, being the amount due under an agreement for the lease of business machines by the First Applicant under arrangements which required the Second Applicant to stand as surety. The summons and particulars of claim were served on both Applicants at their chosen domicilium citandi et executandi, being the erstwhile address of the First Applicant at the business premises referred to above. Service was effected by affixing a copy to the principal door of the premises.

6.

The Applicants state that the proceedings did not come their attention. As a result, they did not enter appearance to defend. Judgment was granted by default on 26 November 2019.

7.

The Applicants first came to learn of the proceedings, the Second Applicant states, when he was contacted by the Sheriff during August 2020 and was notified that the Sheriff had been instructed to execute a warrant of execution.

8.

This resulted in various interactions between the Applicants ' attorney of record, Mr Woolf, and the Respondent's attorney of record, Mr Winterton.

9.

The respective attorneys exchanged various letters and emails during the period between August and October 2020. In the course of those exchanges Mr Woolf, for

2022 JDR 2519 p3

Todd AJ

the Applicants, alleged certain deficiencies in the pleadings that in his view rendered them excipiable. He expressed the view that there were consequently grounds on which the Applicants were entitled to seek the rescission of the order. He also raised concerns about the terms of the order itself which, it transpires, had been incorrectly typed by a court typist after the order had been granted.

10.

These points were made in a lengthy email sent by Mr Woolf to Mr Winterton dated 19 October 2020. The email concluded with the assertion that "the order is thus rescindable in terms of the provisions of rule 42 of the Uniform Rules of Court", and the Respondent's attorneys were requested to give an undertaking that they would not attempt to execute against the Applicants in these circumstances. Mr Woolf clearly stated his view that the Respondent should approach the court "to have the default judgment removed premised on the occurrence of a mistake having occurred."

11.

Mr Winterton's response to this was communicated in an email dated 28 October 2020 in which he referred to Mr Woolf's email of 19 October 2020, advised that he did not intend "litigating by way of correspondence" and recorded a reservation of all of the Respondent's rights. Importantly, Mr Winterton continued as follows:

"Please advise whether or not your client wishes to settle this matter and apply for rescission thereafter alternatively if your client wants to...