Trapel Farms CC v Rodel Financial Services (Pty) Ltd
| Jurisdiction | South Africa |
| Judge | Ploos Van Amstel J |
| Judgment Date | 20 October 2011 |
| Docket Number | 2855/2010 |
| Hearing Date | 20 October 2011 |
| Court | KwaZulu-Natal High Court, Pietermaritzburg |
Ploos van Amstel, J
On 19 August 2010 judgment was granted against the three applicants, without opposition, for payment of the sum of R3 708 757 together with interest and costs. They now apply for a rescission of that judgment.
The claim which gave rise to the judgment arose out of a written agreement in terms of which the respondent lent an amount of R1 350 000 to the first applicant on or about 6 July 2007, and deeds of suretyship executed by the second and third
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applicants. The loan was repayable after a period of six months. Nothing has been repaid by the applicants, neither in respect of the capital nor in respect of interest.
The proceedings which resulted in the judgment were brought on notice of motion. The application papers were served on the first applicant at its registered office (a firm of accountants) on 20 April 2010. The second applicant is the sole member of the first applicant. The papers were served on the same day at the third applicant's chosen domicilium citandi et executandi at 8 Daljeith Road, Ashburton, Pietermaritzburg, which, according to the founding affidavit in those proceedings, was his place of residence. A return of service indicates that the papers were served on the second applicant personally on 4 August 2010, but she denies this. The deputy sheriff who signed the return of service insists in his affidavit that he had served the papers on her personally.
In addition a notice of set down was served on the first applicant at its registered office on 28 July 2010 and at the third applicant's domicilium citandi on 31 July 2010. The return of service which evidences the service of a notice of set down on the second applicant is also disputed by her.
The second applicant does not say in her affidavit that the accountants at the registered office of the first applicant failed to bring the application papers to her notice. Nor is there an affidavit from anyone at the registered office to this effect.
The court file indicates that on 17 May 2010, which was the date specified in the notice of motion, the application was adjourned to 26 May 2010, with costs reserved. On 26 May 2010 the application was adjourned sine die, by consent, with costs reserved. The fact that the adjournment was by consent is not only endorsed on the court file, but also appears from the order made by Koen, J on that day.
Counsel for the respondent informed me from the bar, without objection from counsel for the applicants, that according to her attorney the reason for the adjournment
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by consent was that the parties were trying to settle the matter. Their efforts were unsuccessful.
The matter was thereafter set down on the motion court roll and the order was granted unopposed.
Against this background the second applicant's statement that she and the third applicant cannot recall whether or not they became aware of the respondent's application before or after the judgment was granted on 19 August 2010 rings hollow. In any event, her evidence falls short of saying that they were not aware of the application before the judgment was granted. She does say...
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