About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2011
>>
[2011] ZAGPJHC 189
|
|
Hammond and Another v Firstrand Bank Ltd and Another (31452/10) [2011] ZAGPJHC 189 (22 June 2011)
NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
31452/10
DATE:22/06/2011
In the matter between:
M
G
HAMMOND
..........................................................................
First
Applicant
M
A
HAMMOND
..........................................................................
Second
Applicant
and
FIRSTRAND
BANK
LTD
.........................................................
First
Respondent
REAL
PEOPLE HOUSING (PTY) LTD
.................................
Second
Respondent
J U D G M E N T
TSOKA, J
:
[1] This is an application for rescission of judgment granted by
this Court on 18 October 1999, some 11 years ago. The application
is
opposed.
[2] The approach adopted by
courts in deciding applications for rescission of judgment is well
set out in
Chetty v Law
Society, Transvaal
1985 (2) SA 756
(T). At 765A the court said the following –
‘
The
term “sufficient cause” (or “good cause”)
defies precise or comprehensive definition, for many and various
factors require to be considered. (See
Cairn's
Executors v Gaarn
1912
AD 181
at 186
per
INNES JA.) But it
is clear that in principle and in the long-standing practice of our
Courts two essential elements of
“sufficient
cause” for rescission of a judgment by default are:
that the party seeking relief must present a reasonable and
acceptable explanation for his default; and
(ii)
that
on the merits such party has a
bona
fide
defence
which,
prima
facie
,
carries some prospect of success. (
De
Wet's case supra
at
1042;
PE
Bosman Transport Works Committee and Others v Piet Bosman Transport
(Pty) Ltd
1980
(4) SA 794
(A)
;
Smith
NO v Brummer NO and Another; Smith NO v Brummer
1954
(3) SA 352
(O)
at
357 - 8.)
It is not sufficient if
only one of these two requirements is met; for obvious reasons a
party showing no prospect of success on
the merits will fail in an
application for rescission of a default judgment against him, no
matter how reasonable and convincing
the explanation of his default.
’
[3] It is crucial for the
success of this application to determine whether the applicant’s
explanation of a delay of 11 years
is reasonable and convincing and
whether he has a
bona
fide
defence, which
prima facie
carries some prospect of success.
WILFUL DEFAULT
[4] The applicant knew of the
default judgment in November of 1999 when the caretaker of the Body
Corporate where he lived, informed
him that a sale of execution of
his property is about to take place. He did nothing. On 2 December
1999 one Mr and Mrs J Levin
arrived at his house and instructed him
to move out of the house. He moved out without demur. Although he
suspected that the Levins
bought the house at the public auction,
which auction the Body Corporate drew his attention to, he did
nothing. He did not even
enquire from the bank the nature and the
grounds of Levins claim to the property. His explanation that he is
a layman rings hallow.
In October 2001 he was contacted by a
representative of the second respondent who advised him that the bond
he had with the first
respondent was ceded to the second respondent
who was then calling on him to settle the bond arrears.
[5] During the years 2003, 2008
and 2009 in spite of his knowledge that judgment had already been
obtained against him, he took
no steps to rescind the judgment. It
was only on 12 August 2010 that the applicants launched the present
application. The gravamen
of applicants’ explanation is that
the first applicant is a layman who is naïve. Other than this
explanation, there
are no reasonable and convincing reasons why the
applicants were in default.
BONA FIDE
DEFENCE
[6] The applicants raise several
defences such as prescription and that the first respondent had no
right to obtain judgment against
the second applicant to whom the
first applicant is married out of community of property. The
applicants further contended that
the amount on which judgment was
granted in favour of the first respondent is “
probably
wrong
”. The
applicants, without any evidence, contended that judgment obtained
against them was fraudulently obtained.
[7] The defence of prescription
is misplaced. Judgment by default was obtained on 18 October 1999.
This is the judgment that,
according to the applicants, two years
later was ceded to the second respondent. On this basis alone, I
fail to see how the judgment
debt had prescribed by the time it was
ceded to the second respondent.
[8] It may be so that the
applicants are married out of community of property. It must,
however, be pointed out that the applicants
were married in terms of
the laws of England. In terms of the
Deeds Registries Act 47 of
1937
, registration of transfer of property of a bond, requires that
such parties’ marital status must be reflected on both the
deed
of transfer and the bond as married to each other in terms of the
laws of England. The rationale behind this requirement
is to avoid
interpreting, without expert evidence, the consequence of a foreign
marriage. It is on this basis that at the time
the bond was
registered in favour of the applicants, their marital status was
described as such in the bond. It is on this basis
that the first
respondent obtained judgment against the applicants.
[9] The contention that the
amount on which judgment was obtained against the applicants is
“
probably wrong
”
is far-fetched and factually baseless. The further contention that
the judgment was fraudulently obtained is factually
unsustainable.
The applicants’ contention is premised on the wrong assumption
that judgment was obtained on 11 September
2008. The assumption is
wrong. This Court granted judgment by default on 18 October 1999. It
appears from the court order, Annexure
“MGH2” that in
2008 the registrar of this Court was requested a copy of the order of
18 October 1999. On 11 September
2008 the registrar affixed its date
stamp on the court order. The contention of fraud is resultantly
without merit.
[10] The application is not
bona
fide
. The inordinate
delay in launching this application, the lackadaisical attitude of
the applicants with regard to the launching
of this application 11
years after judgment was obtained against them, the disregard of the
prejudice that the respondents might
suffer, calls into question the
bona fides
of the applicants in launching this application. On the evidence
before me, I am unable to find a
bona
fide
defence which
prima facie
has some prospect of success. Although the application was brought
late, there is no application for condonation. The applicants,
dismissively, suggest that as no prejudice is occasioned to the
respondents, this Court should entertain the application and that
should the application be opposed, such opposition would be
opportunistic. The respondents were entitled to oppose the
application.
Their opposition is not opportunistic.
[13] The application deserves dismissal.
[14] In the result the application is dismissed with costs.
_____________________________
M TSOKA
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL
FOR APPLICANT : ADV CM RIP
INSTRUCTED
BY : CILLIERS & REYNDERS ATTORNEYS
COUNSEL
FOR RESPONDENT : ADV C VAN DER MERWE
INSTRUCTED BY : LOWNDES
DLAMINI ATTORNEYS