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[2017] ZAGPJHC 374
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Absa Bank v Nkumane and Another (8921/2013) [2017] ZAGPJHC 374 (25 May 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
8921/2013
Not
reportable
Not
of interest to other judges
Revised.
25/5/2017
In
the matter between
ABSA
BANK
APPLICANT
And
NKUMANE,
CHARLES
SIPHO
1
ST
RESPONDENT
NKUMANE,
TSWANE
IDA
2
ND
RESPONDENT
JUDGMENT
VICTOR
J
:
[1]
The applicants seek to rescind the default judgment granted against
them on 9 April 2013 as well as the writ in execution. The
judgment
debt was for an amount of R523 406.46 and their property Erf […]
Risiville Township held by Deed of Transfer
t148752 was declared
executable.
Applicants’
Version
[2]
A number of defences were proffered in order to justify the recession
of the judgment debt. These included the lack of a Certificate
of
Registration as well as the contention that the deponent to the first
respondent’s papers is not an employee, no resolution
was
attached to the founding application and that the deponent Ms Naidoo
has no personal knowledge of the facts. The applicants
also dispute
the domicilium address used for service. The applicants concede that
they received the document which was appended
to their front gate. On
or about 2 April 2013 they telephoned the respondent’s
attorney, of record Hammond Pole and spoke
to one Walter. They and
offered to pay the arrears in the amount of R10 000 per month
which offer according to the applicants
was accepted.
[3]
When the writ of execution was received, on 7 May 2013 the applicants
spoke to Walter of Attorney Hammond Pole who promised
to draw the
file and investigate and that he confirmed that he recalled the
earlier agreement.
[4]
The applicants contend therefore that there was a breach of the
agreement. They now contend that wanted a higher amount viz
a payment
of R31 000 in May and R10 000 per month towards the
arrears.
[5]
The first applicant advised Walter that as far as he was concerned
there was a valid and binding agreement and that he would
continue to
comply with the agreement as he understood it and pay R10 000.00
per month. He also stated that the first respondent
had to abandon
the judgment taken against them. This is the applicant’s
version. Walter would not commit himself either way
and undertook to
come back to him, which he failed to do.
[6]
On 8 July 2013 he received a call from an agent who informed him that
the house was going to be auctioned and that this agent
wanted to
look at the house.
[7]
On 13 July he spoke to a certain Deon at the Department of Home loans
at ABSA, the respondent. He had previous dealings
with him.
They met on 16 July and then Deon told him that he must pay the
R44 000.00 before the date of sale.
Deon did not deny that
an agreement had been reached on 2 April 2013. Obviously the
agreement was not with him so Deon could not
explain why the judgment
had not been proceeded with. As far as the applicants were
concerned, they proceeded paying the
monthly amount of R10 000.00
as they understood the agreement to be.
[8]
The first applicant averred that they also intended launching a
counter application in due course for a statement and debatement
of
account and he would prove that the first respondent’s entire
calculation of the quantum is in dispute.
[9]
The first applicant asserts that they never received notice in terms
of section 129 of the National Credit Act and that the
section 129
notice was not dealt with properly. If regard be had to the
delivery of the papers at Three Rivers on 14 February
2013, there is
a material discrepancy as to when that notice was indeed sent.
[10]
There is a substantial dispute between the parties as to the alleged
oral agreement itself and as to whether the applicants
received
proper notice. The degree of acrimony then escalated and the
applicants accused the first respondent of being fraudulent.
Mistakenly the first respondent did indicate that the property had
been sold at the sale in execution to one Mazibuko when in fact,
it
had been on-sold on 25 July 2013 to Ms Phebane and the transfer of
the property has taken place into the name of Ms Phebane.
[11]
In order for the applicants to succeed they would have to have the
judgment set aside as well as the sale in execution.
[12]
Of importance in this matter is that Ms Phebane has not been joined
in these proceedings. Unfortunately, a Mazibuko was
joined and
that particular error lies at the door of the first respondent. I am
now faced with the situation where Ms Phebane,
who is a bona fide
purchaser of the immovable property, is not joined in these
proceedings.
[13]
The appropriate order would be to postpone the application or allow
the applicants to join Ms Phebane to these proceedings.
The
applicants do not want that relief. They simply wish to have the
judgment rescinded on the basis of Rule 42 of the Uniform
Rules of
Court. Alternative, the applicants contend that good cause has
been shown and also in the alternative wish it to
be set aside in
terms of rule 31.
[14]
The first respondent in very extensive heads of argument deals with
the error in regard to Mr Mazibuko and says the following:
“
The property was not sold to
Phebane but rather to Mr Mazibuko and it was
Mr Mazibuko who had
on-sold the property to Phebane.”
[15]
Unfortunately it is in relation to the onward sale to Mr Phebane that
the first respondent did not appraise the applicants
of that further
onward sale.
[16]
The point of non-joinder is taken by the first respondent and the
submission is that it is fatal to the applicant’s application
by virtue of the fact that Ms Phebane has not been joined to these
proceedings. It is clear that the new owner Ms Phebane will
be
prejudicially affected if a rescission were to be granted . See
Judicial Service Commission and Another v Cape Bar Council and
Another
2013 (1) SA 170
(SCA) Brand JA dealt with the
question of non-joinder in the following terms:
'It
has now become settled law that the joinder of a party is only
required as a matter of necessity — as opposed to
a
matter of convenience — if that party has a direct and
substantial interest which may be affected prejudicially by the
judgment of the court in the proceedings concerned (see eg Bowring NO
v Vrededorp Properties CC and Another
2007 (5) SA 391
(SCA) par
21).
’
[17]
The question of non-joinder, the blame is partly apportioned to the
first respondent who did not tell the applicants about
the onward
sale. However, well before this matter was argued the applicants knew
about the onward sale to Ms Phebane and that she
would have a
material interest in the outcome of this rescission application.
[18]
As regards the defence of lack of personal knowledge of the deponent
Ms Naidoo who deposed to the affidavit on behalf of the
bank, I
accept that Ms Naidoo has access to the books of account relating to
this matter. She has familiarised herself with them.
The applicants
do not dispute that a credit agreement was concluded and the terms of
the credit agreement. The terms and conditions
pertaining to the
credit agreement are not in dispute. It is common cause that the
applicants were in arrears and thus in breach
of the terms and
conditions.
[19]
The first respondent also deals with the merits of the points in
limine taken by the applicants and the first respondent avers
that a
certificate of registration is not fatally defective if not attached
to the particulars of claim. The certificate was attached
to the
answering affidavit. The above defences in limine are insufficient to
grant the rescission application.
[20]
The first respondent therefore contends that the rescission was not
erroneously sought in terms of rule 42 and it was not erroneously
granted because there were no irregularities in the proceedings
before the Court and therefore that judgment does not stand to
be set
aside on that basis.
[21]
The agreement in relation to the variation of the agreement in
respect of the payment of R10 000 per month is in dispute.
The
applicants contended that their agreement of R10 000.00 would be
sufficient to stay the sale in execution and that this
would solve
the problem indefinitely. The applicants have attached an email
where the following is stated:
“
We are therefore committing
that people able to afford R10 000.00 by the beginning paying it
in May 2013. We hope that our
plea will be favourably considered and
remained.”
[22]
In my view, the import of this particular email demonstrates that the
applicants were making an offer. They say in particular,
we
hope that our plea will be favourably considered. Therefore, it
is not possible on the disputed facts to accept the first
applicant’s
version. It is implausible for the applicants to contend that
there an agreement in place if they are still
hoping that their plea
would be favourably considered.
[23]
The first respondent contends that the applicants have been less than
candid in the disclosure of the true facts and that the
said
contention is a fabrication and a falsehood. It is also of note
that even well after the alleged agreement with Walter,
the
representative of first respondent at Meyerton, did not have any
knowledge of the alleged agreement nor would it have appeared,
I
presume, in a file or on the computer network. In my view,
therefore, the applicants have not shown that I must not apply
the
Plascon-Evans
rule to the allegation by first respondent that
no agreement was reached in respect of a payment of R10 000.00
per month.
[24]
In the alternative, the applicants rely on the common law to rescind
the judgment in default of an appearance, provided sufficient
cause
is shown. Having regard to the facts set out above, I am of the view
that the applicants had not shown sufficient cause.
The quantum
claimed is by virtue of the certificate, there is nothing submitted
by the applicants to impugn the amount owing.
The non-receipt
of the section 129 notice is not decisive of the matter in the sense
that that issue cannot be decided without
the input of the parties
who have not been joined.
[25]
It was submitted on behalf of the applicants that it was insufficient
simply to obtain a return from the Halfway House Post
Office, much
more was required as set out in the case of
Sebola & Another v
Standard Bank of South Africa Ltd & Another
2012 (5) SA
142
(CC). The above principle also must also be considered against
the facts in this matter where there was receipt of the summons and
the applicants reacted to it.
[26]
In my view, the application by the applicants is fatally flawed in
a number of respects, the most important of which,
is the non-joinder
of the third party Ms Phebane.
[26]
In the result and in the absence of a prayer by the applicants to
postpone this matter to enable them to join Ms Phebane, the
application must fail.
The
order that I make is the following:
The application is dismissed with
costs.
______________________
M.
VICTOR
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Attorneys
for the applicants:
Larry
Marks Attorneys
Alberton
North
087 351
6532
N46
Attorney
for First Respondent
Vermaak
and Partners
011 874
1800
Ref
MAT 134549