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[2014] ZAGPJHC 411
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Julie and Another v Firstrand Bank Limited (25964/2013) [2014] ZAGPJHC 411 (28 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: 25964/2013
DATE: 28 NOVEMBER 2015
In the matter between:
CRANSTON RANDY
JULIE
.........................................................................................
First
Applicant
ANGELA ROZANNE
JULIE
.....................................................................................
Second
Applicant
And
FIRSTRAND BANK
LIMITED
..................................................................................
First
Respondent
THE SHERIFF OF THE COURT,
JOHANNESBURG SOUTH
........................
Second
Respondent
Summary:
Rescission application in terms of
Rule 42 of Uniform Rules of Court – based solely on first
respondent’s alleged failure
to send notice in terms of section
129 of
National Credit Act, 34 of 2005
to applicants –
allegation disproved – first respondent proved that notice was
sent and received – application
dismissed with costs.
JUDGMENT
MAENETJE AJ:
Introduction
1. This is a rescission application
that the applicants brought in terms of Rule 42 of the Uniform Rules
of Court. They seek the
following order:
“1. Rescission of the Court Order
granted by the above Honourable Court on the 12th of December 2013
under case number: 13/25964;
2. Costs of the application.
2. The Court order against the
applicants, sought to be rescinded, is in the following terms:
“1. Payment of the sum of R1,
131, 971.65
2. Interest on the above amount at the
rate of 8.50% per annum from the 1 June 2013 to date of payment.”
3. The following property is declared
executable:
Erf 1280 Mondeor Township, Registration
Division I.R, Province of Gauteng (70 Ormonde Street, Mondeor)
4. An order authorising the Registrar
to issue a Warrant of Execution for the attachment of the
Respondents’ Property.”
3. Under the heading, “AD
RESCISSION APPLICATION” in their founding affidavit, the
applicants set out the grounds upon
which the rescission is sought.
The applicants allege that the order was erroneously and/or
fraudulently sought by the first respondent
and was consequently
erroneously granted by the Court. The grounds upon which this
allegation is made can be summarised as follows:
a. The first respondent failed to
deliver to the applicants a notice in terms of section 129 of the
National Credit Act, 34 of 2005
(“the Act”).
b. The first respondent deliberately
misled the Court that there was proof that the notice in terms of
section 129 of the Act was
sent to the applicants. In this regard,
the applicants contend that the first respondent bore the evidentiary
burden to prove
not only that the notice was sent, but that it had
been received by the applicants.
c. The first respondent failed to
discharge its obligations in terms of section 129 of the Act.
d. The applicants did not receive the
section 129 notice that the first respondent alleges it sent to them.
As a result, the applicants
contend that they have a bona fide
defence to the first respondent’s claim because they were
unaware that any legal proceedings
were instituted against them.
They say that section 129 of the Act specifically requires that prior
to any formal legal action
being taken against a debtor, the notice
in terms of section 129 of the Act must have been delivered and
received by the debtor.
Failure to show that the section 129 notice
has in fact been delivered and received by the debtor must lead to a
failure of the
action, which then constitutes a valid defence in law.
The case pleaded lacks merit
4. The primary difficulty for the
applicants is that not only was the first respondent able to show in
its answering affidavit that
it had sent a notice in terms of section
129 of the Act to the applicants as required, but also that the
second applicant signed
acknowledgement of receipt of the notice.
The first respondent states the following in its answering affidavit
in this regard:
“20.10 On 25 April 2013 the
second applicant personally signed an acknowledgement of receipt in
respect of the initial notice
in terms of section 129(1)(a) of the
National Credit Act 34 of 2005 (“the Act”). The second
applicant undertook to
“respond to the letter”. A copy
of the section 129 notice (which duly reflects the confirmation of
receipt by the
second applicant herself on the last page thereof) is
attached hereto and marked as annexure “F”.”
5. Annexure “F” to the
first respondent’s answering affidavit is a notice from the
first respondent in terms of
section 129 of the Act to the
applicants. It is dated 19 April 2013. It contains the
acknowledgement that the first respondent
alleges in its answering
affidavit.
6. The applicants did not file a
replying affidavit. Whereas counsel for the applicants sought to
suggest that a replying affidavit
might have been filed – a
fact that he was unsure of, none was produced even after the
applicants’ counsel was afforded
an opportunity to contact his
attorneys to verify whether indeed a replying affidavit had been
filed. All indications are that
no replying affidavit was filed. As
a result, allegations by the first respondent, including as regards
the notice dated 19 April
2013, as well as other evidence in support
of the contention that a notice in terms of section 129 of the Act
had been sent to
the applicants in line with the requirements of
section 129 of the Act, remain uncontradicted. For his part, the
applicants’
counsel opened his submissions to the Court with a
concession that indeed the first respondent had sent the applicants a
notice
in terms of section 129 of the Act as alleged in its answering
affidavit.
7. When it was raised with the
applicants’ counsel that in light of the uncontradicted facts,
as well as his concession, which
was correct on the facts, the
applicants’ case should fail, he sought to persuade the Court
that if regard is had to the
notice in terms of section 129 of the
Act that the first respondent relies upon, it would be manifestly
clear that the first respondent
still failed to comply with its
obligations in terms of section 129 of the Act. There are two
problems with this submission.
First, it was never the applicants’
case that the first respondent had sent a notice in terms of section
129 of the Act,
which they had received, but that the first
respondent failed to comply with its other obligations in terms of
section 129 of the
Act. Had this been the case, the first respondent
would have had an opportunity to deal with it in its answering
affidavit. Secondly,
the notice in terms of section 129 of the Act
that bears the second applicant’s signature, is manifestly in
compliance with
section 129 of the Act.
8. In the circumstances, there is no
basis – as pleaded – upon which this Court can find for
the applicants. The applicants
have admitted in their founding
affidavit that they had fallen into arrears with their payments to
the first respondent. Save
for the question of compliance with
section 129 of the Act, the first respondent was entitled to
institute action and obtain judgment.
It cannot be said that
judgment was erroenously and/or fraudulently sought and obtained in
those circumstances.
Order
9. Accordingly, I make the following
order:
a. The rescission application is
dismissed with costs.
MAENETJE AJ
Appearances:
Counsel for applicants: XE Mazibuko
Attorneys for applicants: Pule Pule
Attorneys
Counsel for first respondent: D van
Niekerk
Attorneys for respondents: Hammond
Pole Attorneys
Date of hearing: 19 November 2014
Date of judgment: 28 November 2014