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[2012] ZAGPJHC 128
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First Rand Bank v Ndileka (48765/2010) [2012] ZAGPJHC 128 (15 June 2012)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 48765/2010
DATE:15/06/2012
in
the matter between -
FIRST
RAND BANK
….............................................................................................
PLAINTIFF
AND
NTAKA
LEGINAH NDILEKA
…..............................................................................
DEFENDANT
JUDGMENT
Collis
AJ:
INTRODUCTION
[1]
In the present application the applicant seeks rescission of a
summary judgment granted against her on the 29
th
March
2011. She further seeks the setting aside of a writ, which was issued
pursuant to the said order and cost of the application.
[2]
The application is premised in terms of Rule 42(1 )(a), alternatively
in terms of the Common Law
PLAINTIFF'S
CAUSE OF ACTION
[3]
During March 2006 the Defendant passed a Mortgage Bond B22293/2006 in
favour of the Plaintiff as security for a loan of R345000,
00
together with interest thereon as provided for in the said Bond. Upon
default of her repayments the Plaintiff obtained judgment
against
her.
DEFENCES
Rule 42(1)(a).
[4]
Applicant applies to have the judgment taken against her rescinded,
firstly on the basis that the judgment was erroneously taken
against
her in that the Plaintiff as credit provider had failed to annex to
its Particulars of Claim, its registration certificate
with the
National Credit Regulator.
[5]
The citation of the Plaintiff as per the Particulars of Claim reads
as follows:
"First
Rand Bank - A Division of First Rand Bank Limited (hereinafter called
the Plaintiff) a bank duly registered and incorporated
in terms of
the banking laws of the Republic of South Africa and registered as a
Credit Provider as defined in
section 40
of the
National Credit Act
34 of 2005
."
[6]
In its citation, the Plaintiff has alleged registration with the
National Credit Regulator which registration as Credit Provider
was
not denied by the Defendant.
[7]
The annexing to the Particulars of Claim of a copy of the
registration certificate, would merely have been confirmation of such
registration, but was not material and necessary to the allegation of
such registration.
[8]
As a consequence, I could not find any in merit in the first point in
limine raised.
[9]
The second ground upon which the Applicant contends the judgment was
granted in error, relates to the authority of the Deponent
to the
Founding Affidavit filed in support of the application for Summary
Judgment.
[10]
The Applicant denies the deponent one Sanet von Mohlman, had any
personal knowledge of the matter. In the affidavit in support
of the
present application, the Applicant sets out in paragraph 5 the
following:
"/
have never heard of Sanet Van Mohlmann who has deposed to the
affidavit in support of the application for summary judgment.
I had
no dealings with her whatsoever and I deny that the facts fall within
her personal knowledge and that the file is in her
possession and
under her direct control and that in the course of her dealings in
this matter she has obtained any personal knowledge.
I submit further
that Mohlmann, never having dealt with me misleads the court when she
states that she has personal knowledge of
the matter, at best she can
verify the correctness of the contents of the file, not whether the
contents are in fact factually
correct"
[11]
If one has regard to the affidavit filed by one Sanet von Mohlmann
Paragraphs 2 and 3 is of relevance and quoted hereunder:
"(2)
The facts contained herein falls within my own personal knowledge
save where it appears otherwise from the contents and
are to the best
of my belief true and correct.
(3)
The Plaintiff's file in respect of this matter is in my possession
and under my direct control and I accordingly have obtained
personal
knowledge of the information therein. Further in the course of my
dealings with this matter I have also obtained personal
knowledge."
[12]
The leading case on the point is the decision of Maharaj v Barcklays
National Bank Ltd
1976 (1) SA 418
A at 423A- 424D, where Corbett CJ
remarked as follows:
"In
the latter event, such other person's ability to swear positively to
facts is essential to the effectiveness of the affidavit
as a basis
for summary judgement; and the Court entertaining the application
therefore must be satisfied, prima facie, that the
deponent is such
person. Generally speaking, before a person can swear positively to
the facts in legal proceedings they must be
within his personal
knowledge. For this reason the practice has been adopted, both with
regard to the present
Rule 32
and in regard to some of its provincial
predecessors (and the similar rule in the Magistrates Courts), of\
requiring that a deponent
to an affidavit in support of summary
judgment other than the plaintiff himself should state at least, that
the
facts are within his personal knowledge (or make some averment
to that effect), unless such direct knowledge appears from other
facts stated
The
mere assertion by a deponent that he 'can swear positively to the
facts" (an assertion which merely reproduces the wording
of the
Rule) is not regarded as being sufficient, unless there are good
grounds for believing, that the deponent fully appreciated
the
meaning of the
words...."
[13]
In Standard Bank of South Africa Ltd v Kroonhoek Boerdery CC 2011 JDR
0980(GNP) Tuchten J remarked as follows:
"
One of the aids of ensuring that this is the position is the
affidavit filed in support of the application and to achieve
this end
it is important that the affidavit should be deposed to either by the
plaintiff himself or by someone who has personal
knowledge of the
facts"
[14]
To the present matter at hand, the Applicant merely states "she
had never heard of Sanet von Mohlman." To my mind,
given the
fact that the Respondent is national bank; it follows in all
likelihood she would never have dealt with her.
[15]
The Applicant further denies Ms. Von Mohlmann could possess personal
knowledge or that the file in question is within her possession.
[16]
Applicant, save for putting forward a bare and bold denial, sets out
no facts to support such contention. It remains uncertain,
what
informed the Applicant of Ms. Von Mohlmann's, lack of personal
knowledge, which Applicant alleges she possessed.
[17]
Differently put, a mere denial of the bank's employees personal
knowledge, would not suffice, and in order for a court to find
such
deponent lacks personal knowledge a court has to conclude that the
deponent would be unable to competently testify to the
documents with
her employer bank relevant in the case in question. This I could not
find.
[18]
For the above reasons, I similarly could find no merit in the second
point in limine raised, and as a result could find no
grounds in
rescinding the judgement in terms of
Rule 42(1)(a).
COMMON
LAW
[19]
In the alternative, applicant applied for a rescission of the Summary
Judgment granted against her in terms of the Common Law,
and in this
instance first applied for condonation for the late bringing of this
application.
[20]
An applicant for rescission at common law must show good cause. The
requirements for good cause were restated by the Supreme
Court of
Appeal in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills
(Cape)
2003 (6) SA 1
(SCA) para 11:
"With
that as the underlying approach the Courts generally expect an
applicant to show good cause (a) by giving a reasonable
explanation
of his default; (b) by showing that his application is made bona
fide; and (c) by showing that he has a bona fide defence
to the
plaintiff's claim which prima facie has some prospect of success."
[21]
In this regard paragraphs 22 and 23 of the Founding affidavit, is of
relevance. Therein the, Applicant explains she first obtained
knowledge of the judgment during February 2012. She proceeded to
investigate the matter and thereafter instructed her attorney
and
consulted with them on 13th March 2012. She explained the delay in
bringing her application before the court timeously was
brought on by
her being out of the country by virtue of that fact that she is a
flight attendant.
[22]
The Respondent at paragraph 8 of the Answering affidavit merely
denies the Applicant ought to be given condonation for the
late
filing of the application, without disclosing the basis for such
opposition.
[23]
I am satisfied that the lateness of bringing of this application has
been explained and deems it fit to grant the applicant,
such
condonation.
EXPLANANTION
OF DEFAULT
[24]
In Harris v Absa Bank Ltd t/a Volkskas
2006 (4) SA 527
(T) Moseneke J
at 528 remarked as follows:
"The
Applicant, being the party which seeks relief bears the onus of
establishing 'sufficient cause' whether or not 'sufficient
cause' has
been shown to exist depends upon whether:
(a)
the applicant has presented a reasonable and acceptable explanation
of her default;
and
(b)
The Applicant has shown the existence of a bona fide defence that is
one that has some prospect or probability of success"
[25]
In the decision of Chetty v Law Society Transvaal 1985 (2) 756 (A) at
764J-765A-D, Muller JA; explained the above rule as follows:
"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. An ordered judicial process would be negated if, on
the other hand, a party who could offer no
explanation of his default
other than his disdain for the Rules was neverless permitted to have
a judgment against him rescinded
on the ground that he had reasonable
prospect of success on the merits."
[26]
Before it can be found an Applicant was said to be in wilful default,
such Applicant must have had knowledge of the action
brought against
her and of the steps required to avoid the default.
[27]
In Harris v Absa Bank Ltd t/a Volkskas supra, Moseneke J, remarked:
"Such
an Applicant must deliberately, being free to do so, fail or omit to
take the step which would avoid the default and
must appreciate the
legal consequences of his or her actions"
[28]
In this regard Applicant explained, upon service of the summons on
her on 7th December 2010; she was already under debt review.
She
immediately handed a copy of the summons to her debt counsellor, one
Russel Dickerson. An Appearance to Defend the action was
served on
the Respondent on 14 January 2011.
[29]
On 4th February 2011, the Respondent served the Summary Judgment
Application on her attorneys, which application was to be
heard on
29th March 2011.
[30]
Applicant proceeded to explain, albeit her attorneys had received
notification of the Summary Judgment application, the matter
indeed
had been misdiarized at her attorneys firm.
[31]
If one has regard to the Applicant's affidavit resisting Summary
Judgment the said affidavit was served on the Respondent's
attorney
on the 7th March 2011. It thus follows the affidavit resisting
summary judgment was at the Court's disposal upon the hearing
of the
Summary Judgment, and as a result, must have been considered by the
Court.
[32]
The Applicant's default at the hearing for the Summary Judgment at
best relates to the absence of her legal representative
at such
hearing, but could not relate to the absence of her defence, which
would have been enunciated in her affidavit resisting
summary
judgment.
[33]
The Applicant does not annex to her Founding Affidavit an affidavit
by her legal representative to explain or even confirm
his firm
having diarised the date of the hearing incorrectly.
[34]
This, the Applicant was required to do, as it would have given
credence to the reasons for her absence at the hearing.
[35]
In the absence thereof, I cannot but conclude, the Applicant being
aware of the date of the Summary Judgment application, and
having
filed an affidavit resisting such application (and in so doing
appreciating the legal consequences of a judgment), failed
to take
steps to avoid the default (by her absence or that of her legal
representative) at the hearing. As a result she has failed
to
disclose the absence of wilfulness.
APPLICANT'S
PROSPECT OF SUCCESS ON THE MERITS
[36]
In essence the Applicant contends Summary Judgment ought not to have
been entered against her as the Respondent (Plaintiff
in the main
action) had terminated the debt review proceedings by simply ignoring
the instalment offer made to them through her
debt counsellor.
Furthermore in terms of the instalment offer, the Respondent was
engaged to exercise good faith in its dealings
with her and in so
doing, it was incumbent on the Respondent to seriously and in a
meaningful manner give consideration to her
proposal.
[37]
In paragraph 10 of the Particulars of Claim, the Plaintiff alleges
the following:
"The
Defendant has referred the credit agreement to a debt counsellor for
review thereof, which review process has been terminated
by the
Plaintiff in accordance with the provisions of Sec 86(10) of the
National Credit Act 34 of 2004. The notice was dispatch
by registered
post on 9th November 2010 to the Applicant's chosen domicilium as per
the underlying agreement."
[38]
In her Founding Affidavit the Applicant sets out, upon appointing her
debt counsellor, and submitting an application for debt
review to her
counsellor, the latter informed the Respondent that she had applied
for debt review on 31 July 2010. Her counsellor
processed her
application and on 27th September 2010. informed the Respondent her
application had been successful.
[39]
On the same day her counsellor, had made an instalment offer to the
Respondent, which instalment offer the Respondent was requested
to
accept within five (5) working days. This instalment offer, the
Respondent simply ignored resulting in the Notice of Termination
of
the debt review.
[40]
In terms of Sec 86 (10) a credit provider who wishes to terminate the
debt review application, has to give notice to the consumer;
debt
counsellor and the National Credit Regulator.
[41]
Counsel acting on behalf of the Applicant had submitted to the court,
the Respondent (Plaintiff) had failed to allege in its
Particulars of
Claim, that termination of the Debt Review Application was indeed
also given to the debt counsellor and the National
Credit Regulator.
[42]
If one however has regard to the said Notice of Termination annexed
to the Particulars of Claim, it clearly indicates, same
was also
dispatch by electronic mail to the Applicant's Debt Counsellor, and
the National Credit Regulator albeit no such allegation
is contained
in the Particulars of Claim.
[43]
The Court when considering the Summary Judgment application, had to
consider, whether the Respondent (Plaintiff in the main
action) had
exercised its right to terminate the review proceedings within the
prescribe time limit as set out in Section 86(10)
of the National
Credit Act.
[44]
In terms of Sec 86 (10), a credit provider can exercise his/her right
to terminate if 60 (sixty) business days have elapsed
since the date
on which the consumer first applied for debt review and the process
had not been finalized either by acceptance
of the offer by a credit
provider in their agreement in question or a debt counsellor upon
rejection of a proposal has referred
the matter to Court for
determination.
[45]
In this regard, the Applicant sets out that she first instructed her
debt counsellor on 30th June 2010, who in turn informed
the
Respondent of her application for debt review on the 31st July 2010.
On the 27th September 2010 the debt counsellor had notified
the
Respondent by dispatching Form 17.2 to the Respondent.
[46]
With reference to Form 17.2 Applicant alleges, the Respondent had
failed to respond by either accepting same or in turn to
make a
counter- proposal.
[47]
On the 27th October 2010, Applicant proceeded to issue an application
for debt review in the Magistrates Court for the district
of Brakpan
and service of such application proceeded via e-mail. The hearing of
this application was only set down for the 18th
March 2011.
[48]
If this court has regard to Annexure "N2", made reference
to in Annexure "LNN3" of Applicants affidavit
resisting
Summary Judgment Application, it reflects payments being made by the
Applicant to the Respondent for the months of August
2010, September
2010 and November 2010.
[49]
There as a result, has been an acceptance of the offer made by the
Applicant through her Debt Counsellor albeit informally
so, and the
subsequent termination of the debt review process by the Respondent
on the 9th November 2010, was in clear contradiction
thereof.
[50]
in terms of the National Credit Act the Respondent is enjoyed to
exercise good faith In its dealings with the Applicant.
[51]
Having regard tc the payments made to the Respondent prior to the
Debt Review Application being lodged, and even pursuant to
the Debt
Review Applicat or being lodged, and the acceptance thereof by the
Respondent. I am of the opinion the Applicant has disclosed
good
cause to have the judgment rescinded.
[52]
Albert the Applicant has failed to satisfy the requirement of wilful
default, where she disclosed good cause to have the judgment
rescinded a court must come to her assistance.
ORDER
[53]
For the reasons as set out above the order of this court reads as
follows:
1.
The application is granted with costs.
2.
Judgment granted in favour of the Plaintiff against the Defendant on
27* March 2011 is hereby rescinded.
3.The
warrant of execution issued herein, is hereby set aside.
4.The
Defendant is to file her declaration within 15 (fifteen) days of date
hereof.
C.
Collis
Acting
Judge of the High Court of South Africa.
Appearances
For
the Applicant : Adv K. Levin
Instructed
by: Larry Marks Attorneys
For
the Respondent : Adv A. J. Venter
Instructed
by. Strauss Daly Inc.
Date
of Hearing : 16 May 2012
Date
of Judgment : 15 June 2012