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[2016] ZAGPJHC 41
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Matshitse v Standard Bank of South Africa Limited (2014/27574) [2016] ZAGPJHC 41 (18 March 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: 2014/27574
HEARD: 9 MARCH 2016
DELIVERED: 18 MARCH 2016
In the matter between:-
MATSHITSE, RAMONTSHENG
JOSEPH
...........................................................................
Applicant
And
THE STANDARD BANK OF SOUTH AFRICA
LIMITED
.............................................
Respondent
JUDGMENT
HERTENBERGER, AJ:
[1] This is an application for
rescission of a default judgment. The matter has its origin in a
credit agreement entered into by
the parties for the financing of the
purchase of a Mercedes Benz motor vehicle. The Applicant did not
make all payments as required
by the agreement, which resulted in
summons being issued and default judgment being granted in favour of
the Respondent, who then
repossessed the motor vehicle. Upon the
sheriff’s attachment of the motor vehicle, the Applicant
launched an urgent application
to prevent the sale of the motor
vehicle, pending the outcome of the rescission application, which
relief was granted by agreement.
[2] The application for rescission
herein is brought on the basis of what can best be described as a
shotgun approach, the Applicant
relying on Rule 42(1)(a) of the Rules
of this court and in the alternative on the Common Law.
[3] I am of the view that the
Applicant’s reliance on Rule 42(1)(a) is flawed. On the facts
of the matter, the Applicant
in his founding affidavit raises
defenses to the Respondent’s claim, which relate to the letter
in terms of
section 129
of the
National Credit Act no 34 of 2005
that
was sent to him by registered mail by the Respondent. The Applicant
argues inter alia that the letter did not comply with
the
requirements of the Act and had this been brought to the attention of
the Judge considering the application for default judgment,
the
judgment would not have been granted. The difficulty with this view
is that one simply cannot rely upon the fact that the
Judge granting
default judgment and who is thus presented with a summons, but no
plea in the matter setting out the Defendant’s
defence thereto,
to foresee the defence that could be raised. The aforesaid does not
render the judgment erroneously granted.
This view is supported by
the Supreme Court of Appeal in Lodhi 2 Properties Investments CC and
Another v Bondev Developments (Pty)
LTD
2007 (6) SA 87
(SCA).
[4] This leaves the Applicant’s
reliance on the Common Law in order to rescind the judgment. One of
the requirements that
must be met is that there must be a reasonable
explanation for the default. The Applicant became aware of the
pending action against
him at the very latest on the date that
summons is served on him on 14 August 2014. He calls the
Respondent’s attorney and
arranges a meeting, which is held on
10 October 2014. In anticipation of the meeting the Applicant makes
several payments to
settle the arrears, but remains indebted to the
Respondent as he does not maintain the regular payments, which would
in any event
have been due. Much is made by the Applicant of the
fact that none of the arrears are owing as at date of the meeting,
however
the fact that the he has again fallen into arrears with
payments leaves one to believe that he does not take his obligations
under
the agreement seriously. He attends the meeting with the
Respondent’s attorney in order discuss payment of the “new”
arrears, but then fails to adhere to the payment plan that was
discussed. The Respondent’s attorney addresses a e-mail to
the
Applicant in which she confirms this and also advises that her client
has proceeded with steps to take judgment. The Applicant
maintains
that the Respondent’s attorney told him that he need not
deliver a notice of intention to defend, yet the correspondence
annexed to the answering affidavit completely dispels this
allegation. He learns of the judgment in January 2015 upon the
Sheriff
attaching and removing the motor vehicle at his home. Still
the Applicant is not jolted into action. He launches the urgent
application
already alluded to above only in May 2015 where the
parties agree to the relief claimed in the urgent application. The
application
now before me is served on the 23rd of October 2015,
which is 14 months after service of summons. The justification
proffered
by the Applicant in this regard is that he could not launch
the application due to financial constraints, however he had
sufficient
funds to launch an urgent application in May, which
Application was superfluous to say the least. A rescission
application would
have had the same effect as the order in the urgent
application. I simply cannot accept the conduct of the Applicant as
reasonable
under the circumstances. He appears to be playing hide
and seek with his creditor, adopting the attitude that the matter
would
be resolved simply by waiting. This is not the conduct of a
man who wishes to make good his default and I am left with the sense
that it is not in the interest of justice to allow this matter to
continue.
In the result the following order is
made:
(1) The application for rescission is
dismissed, with costs.
R HERTENBERGER
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA - JOHANNESBURG
APPEARANCES
COUNSEL FOR APPLICANT: ADV. M CAJEE
APPLICANT’S ATTORNEYS:
BICCARI, BOLLO MARIANO INC.
COUNSEL FOR RESPONDENT: ADV. J C
VILJOEN
RESPONDENT’S ATTORNEYS: STUPEL
& BERMAN INC.