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[2018] ZAWCHC 119
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Roelf v Standard Bank of South Africa and Another (6478/2016) [2018] ZAWCHC 119 (17 September 2018)
Republic
of South Africa
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER:
6478/2016
In
the matter between:
MARLON
TERENCE
ROELF
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
First
Respondent
THE
SHERIFF OR HIS DEPUTY –
WYNBERG
SOUTH
Second
Respondent
J U D G M E N T
MACWILLIAM
AJ:
[1]
The Applicant applies to rescind and set aside the
default judgment granted against him by this Court on 31 May 2016, as
well as
the order declaring Erf 74732 Cape Town specially executable.
[2]
The First Respondent opposes this application.
[3]
The Applicant was up until the day before the
hearing unrepresented. On that day his present attorneys of record
came on record
and Attorney Quintin Zimmerman appeared on his behalf
and handed up brief heads of argument.
[4]
The following chronology is common cause:
1.
Service
of the First Respondents summons was affected on a number of
different addresses between the period the 29
th
April to 5
th
May 2016. It was submitted by the First Respondent that service
had taken place in accordance with the rules and Mr Zimmerman
did not
suggest otherwise.
2.
Default judgment was granted on the 31
st
May 2016, at which time the property was declared executable.
3.
The writ of attachment was issued on 29
th
June 2016 and served on the Applicants partner on the 18
th
July 2016.
4.
The Applicant and the First Respondent
concluded a payment arrangement in relation to the payment of the
arrears on 28
th
July 2016.
5.
The Applicant made the first payment in
terms of the payment arrangement on the 2
nd
August 2016.
6.
The next payment was due on the 7
th
September 2016, however it was no paid - no further payments due in
terms of the payment arrangement were paid by the Applicant.
7.
The rescission application was brought on
the 1
st
December 2016 and served on the 2
nd
December 2016.
[5]
The First Respondent argues that as the application was not brought
within the 20 day period prescribed in terms of Rule 31(2)(b),
or
within a reasonable time after the Applicant obtained knowledge of
the judgment, the application falls to be dismissed on this
ground
alone.
[6]
The First Respondents submitted that the commencement of the 20 day
period, as well as and the reasonable time, was the date
when the
writ of execution was served.
[7]
While the reason for the delay in bringing the application was not
addressed at all in the Applicant’s Founding Affidavit
and no
Replying Affidavit was filed, it is apparent from the opposing papers
that at least until 7
th
September 2016 the Applicant was
entitled to accept that the First Respondent would not proceed with
execution pending payment
in terms of the payment arrangement.
[8]
However once the Applicant stopped making payments in terms of the
payment arrangement, he was under an obligation to bring
his
application to have the default judgment set aside if he thought he
had good grounds to do so. The time to do this must
have
started to run from no later than 7
th
September 2016.
[9]
The Applicant did not file a Replying Affidavit and he has not
disputed that subsequent to the payment which he made on 2
nd
August 2016, he made no further payments in terms of the payment
arrangement. In fact he has not placed any evidence before this
Court
that he has ever paid any further amount to the First Respondent
since then.
[10]
In the absence of any explanation as to why the application was only
brought on the 1
st
December 2016, it is not possible for
me to conclude that the application was brought within a reasonable
time or that the Applicants
failure to bring the application within
the 20 days prescribed by Rule 31(2)(b) could be disregarded.
See in this regard
First National Bank of South Africa Limited v
Van Rensburg N.O. and Others:
in re
First
National Bank of Southern Africa Limited v Jurgens and Others
1994 (1) SA 667
(T) at 681 B and
Nkata v First Rand Bank Limited
and Others
2014 (2) SA 412
(WCC) at para 27.
[11]
In its opposing affidavit the First Respondent answered each of the
grounds upon which the Applicant alleged that there had
been
procedural irregularities in the obtaining of the judgment and the
execution in terms thereof. None of these answers
were disputed
by way of a Replying Affidavit.
[12]
The summons was served on the Applicant at the Applicant’s
chosen domicilium address as well as at the address of the
mortgaged
property. On one of these occasions service was received by the
Applicant’s brother. The Applicant does not
state that he did
not obtain a copy thereof from his brother.
[13]
The applicant alleged that the default judgment order had not been
served on him. However, it seems clear that by no
later than
28
th
July 2016, when he concluded the payment arrangement
with the First Respondent, he must have had knowledge of the default
judgment.
Much water has passed under the bridge since then,
yet it is still not in dispute that the arrears due in terms of the
credit agreement
have not been paid nor has the credit agreement been
reinstated.
[14]
The Applicant further complains that the notice of set down of the
default judgment application was not served on him, but
in terms of
Rule 31(4) that service was not necessary.
[15]
Finally the Applicant contended that the First Respondent should have
used means, other than execution against the Applicant’s
immovable property, to recover the judgment debt. However, at this
stage after the passing of many months when the arrears have
still
not been paid, there are no grounds to think that those alleged other
means would have served any purpose.
[16]
In these circumstances the Applicants application is dismissed with
costs.
MACWILLIAM AJ
Date
of Hearing: 12 September 2018
Date
of Judgment: 17 September 2018
APPEARANCES
For
the Appellant: Mr. Q Zimmerman (Attorney)
Instructed
by: Liddle & Associates, Woodstock
For
the Respondent: Adv. D Rabie
Instructed
by: Smith Tabata Buchanan Boyes Attorneys,
Tygervalley