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[2019] ZAGPJHC 398
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Middleton v Firstrand Bank Limited t/a Wesbank (6820/2017) [2019] ZAGPJHC 398 (2 October 2019)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
6820/2017
In
the matter between:
MIDDLETON:
ELIAS
Applicant/Defendant
(ID
No: 480[…])
and
FIRSTRAND
BANK LIMITED
Respondent/Plaintiff
t/a
WESBANK
(REGISTRATION
No: 1929/001225/06)
JUDGMENT
SOUTHWOOD
AJ:
A.
INTRODUCTION
[1]
This is an application for rescission of a judgment granted by the
Registrar of the above Court on 2 May 2017.
[2]
The applicant also seeks condonation for late delivery of the
application for rescission and costs in the event
of opposition.
[3]
The respondent seeks dismissal of the application with punitive
costs.
[4]
The
application for rescission is based on Rule 42,
[1]
Rule 31(2)(b) or the common law.
[5] On
20 June 2016, the parties entered into a written instalment sale
agreement for the purchase of a motor vehicle
described as a 2009
Renault Logan 1,6 Expression, chassis number: MA1[…], engine
number: UC37284.
[6]
The relevant terms of the agreement provided
inter alia
that
if the applicant failed to pay any amounts due under the agreement
(clause 12.1.2), then the respondent would be entitled
at its
election and without prejudice to (clause 13.2) take repossession of
the motor vehicle in terms of an attachment order,
retain all
payments already made by the applicant in terms of the agreement and
to claim as liquid damages, payment of the difference
between the
balance outstanding and the market value of the motor vehicle
determined in accordance with clause 11.5.2.3 of the
agreement which
amount would be immediately due and payable (clause 13.2.2);
[7]
In terms of the agreement, the respondent could provide a certificate
from any one of its managers whose position it would
not be necessary
to prove, showing the amounts that the applicant owed to the
respondent. The applicant agreed that the respondent
could take
any judgment or order that it was entitled to in law based on the
amount contained in the certificate, unless the applicant
disagreed
with such amount and was able to satisfy the Court that the amount in
the certificate was incorrect (clause 22.5).
[8]
Prior to receiving the summons, in or about November 2016, the
applicant took the motor vehicle to a dealer, Top Speed
Motors.
[9]
The applicant ceased paying instalments on the agreement from
December 2016.
[10]
The respondent took possession of the vehicle.
[11]
On or around 24 February 2017, the respondent instituted action
against the applicant. The combined summons
prayed for the
following relief:
[11.1]
Cancellation of the agreement as at judgment;
[11.2]
Confirmation that the respondent is authorised to retain possession
of the vehicle;
[11.3]
An order authorising the respondent to sell the vehicle and credit
the proceeds towards the
reduction of the applicant’s debt;
[11.4]
Costs of suit on an attorney and client scale including storage
costs, cartage costs, appraisement
fees and collection charges.
[12]
The basis of the relief sought in the combined summons was that it
was an express term of the agreement that the
applicant would pay to
the respondent an initial deposit of R5000. On the amount of
R78 817.50, the principal debt,
the applicant undertook to pay
the respondent an amount of R60 494.58 in respect of finance
charges at the rate of 20,74%
NACM fixed over a period of 72 months.
The total amount therefore owed by the applicant to the respondent in
terms of the
agreement amounted to R139 312.08
payable in 72 payments of R1 934.89 on the same day of each
successive
month, the first of which payment was due and payable on 1
August 2016.
[13]
The respondent pleaded, further, that the applicant had breached the
agreement by failing to maintain regular payments
and was in arrears
in the sum of R9 104,07.
[14]
The combined summons was served personally on the applicant at the
applicant’s chosen
domicilium citandi et executandi
at 7
Christiaan de Wet Street, Duncanville on 2 March 2017. The applicant
failed to enter appearance to defend. The due date
for such
appearance was 16 March 2017.
[15]
Accordingly, the respondent applied for default judgment in terms of
Rule 31(5)(a) i.e. for default judgment granted
by Registrar of this
Court for judgment in the same terms as sought in the Particulars of
Claim.
[16]
On 2 May 2017, the Registrar granted default judgment as follows:
[16.1]
Cancellation of the agreement as at the date of judgment;
[16.2]
Confirmation that the respondent is authorised to retain possession
of the vehicle;
[16.3]
An order authorising the respondent to sell the vehicle and credit
the proceeds towards the
reduction of the debt;
[16.4]
Costs of suit in the amount of R200,00 plus Sheriff.
[17]
Pursuant to the above judgment, the respondent sold the motor vehicle
on 20 July 2017.
[18]
The
applicant, through its attorney, became aware of the default judgment
on 30 April 2018. The application for rescission,
despite being
dated 31 October 2018, was only served on the respondent’s
attorneys on 9 November 2018, substantially later
than the 20 days
required by Rule 31(2)(b). In my view, condonation would also
be necessary for a rescission application
based on Rule 42 or the
common law which requires that the application be brought within a
reasonable time.
[2]
B.
CONDONATION
[19]
It is trite that an applicant seeking condonation is required to show
good cause which should, at least,
proffer a reasonable explanation
for his default and indicate that he has reasonable prospects of
success.
[20]
The respondent’s explanation for failing to bring the
rescission application timeously is the following:
[20.1]
during the months of May, June and July 2018, the applicant’s
attorneys had difficulty
contacting him and attempted to obtain
relevant documents from the Court file;
[20.2]
the attorney had difficulty locating the file;
[20.3]
on 11 July 2018, the applicant consulted with counsel and was
informed that it was necessary
to obtain a full factual history and
obtain all necessary documents.;
[20.4]
only in October 2018, did the applicant’s attorney obtain all
the relevant documents;
[20.5]
only at the end of October 2018 was it possible to draft the
rescission application.
[21]
The documentation and information which were not in the applicant’s
possession and which were required
for the rescission application are
not indicated. The applicant was in possession of the
Particulars of Claim and could therefore
identify the basis of the
claim as well as the basis for default judgment. The details of
the attorneys acting for the respondent
are clearly indicated in the
Combined Summons. It is unclear why the applicant did not seek
the documents which it sought
in the Court file from the respondent’s
attorneys. In any event, other than the application for default
judgment, it
is unclear what other documents (which were not in the
applicant’s possession) could be obtained from the court file.
[22]
In my view, the explanation for the delay in bringing the application
for rescission is woefully inadequate
and lacking in detail and does
not properly explain why almost seven months elapsed before the
applicant brought this application.
C.
PROSPECTS OF SUCCESS
[23]
The prospects of success of the rescission application are relevant
for the application for condonation.
[24]
Accordingly, it will be necessary to deal with the requirements for
rescission under the various heads relied
on by the applicant to
determine whether these requirements have been met.
[25]
Although the applicant refers broadly to Rule 42, his contentions
indicate a reliance on Rule 42(1)(a).
This is confirmed in the
heads of argument filed on behalf of the applicant.
[26]
Rule 42(1)(a) provides for rescission of a judgment which has been
erroneously sought and granted in
the absence of the party affected
thereby.
[27]
In relation
to rescission in terms of Rule 31, it is doubtful whether the
applicant can bring an application for rescission in terms
of this
rule where the Registrar has granted default judgment. Rule
31(2)(b), which contemplates rescission of a default
judgment,
applies only to judgments granted by a Court. A party’s
remedy where the Registrar has granted judgment is
to set the matter
down for reconsideration by the Court in terms of Rule 31(5)(d).
Since the requirements are the same
[3]
,
I shall consider the application as though brought in terms of Rule
31(5)(d).
[28]
The applicant must show:
[28.1]
a reasonable explanation for the default;
[28.2]
that the application for rescission is
bona fide
and not made
with the intention to delay the respondent’s claim;
[28.3]
a
bona
fide
defence to the respondent’s claim.
[4]
[29]
Insofar as the common law is concerned, presumably the applicant
relies on the fact that the judgment
was granted by default as he
does not allege facts which indicate that judgment was obtained by
fraud,
iustus error
, or that new documents have been
discovered.
[30]
The
applicant must show good or sufficient cause as in the case of a
rescission application in terms of Rule 31.
[5]
[31]
The applicant contends that the combined summons was served on him on
2 March 2017. He states, further,
that he approached his
current attorneys, and requested that it take all necessary steps to
defend the respondent’s claim
against him. This is not
confirmed by his attorney.
[32]
The applicant states further that his attorneys allocated him to one
Angela Mpambani to deal with the matter,
that she contacted the
respondent (it’s unclear why she did not contact the
respondent’s attorneys indicated in the
combined summons), that
she met with one Mr Laubscher of the respondent who conceded that the
motor vehicle had serious mechanical
defects, that Mr Laubscher
contacted the respondent’s offices in Cape Town to instruct
them to suspend the proceedings against
the applicant, that the
action became pended and, accordingly, that this was the reason that
the applicant’s attorneys did
not deem it necessary to enter
appearance to defend. None of these allegations is confirmed
with the result that save for
the first allegation, the remainder of
the allegations are inadmissible hearsay.
[33]
Although the applicant explains that Ms Mpambani’s whereabouts
are unknown, there is not
a scintilla of documentary evidence to
support the allegations regarding the alleged agreement. It
also does not explain
why the attorneys’ firm is unable to
confirm, at least, some of the allegations. I have serious
doubts regarding the
credibility of the allegations and, accordingly,
do not have regard to them.
[34]
Accordingly, the applicant has failed to establish that there was an
agreement between the parties
that the matter would be kept in
abeyance. As such, default judgment was not erroneously sought
and granted and the application
cannot succeed in terms of Rule
42(1)(a).
[35]
Furthermore, the applicant did not furnish a reasonable explanation
for his default in failing
to enter appearance to defend. The
applicant has failed to establish that the reason for the failure to
enter appearance
to defend was as a result of the parties’
agreement to stay the matter.
[36]
Insofar as the merits are concerned, the applicant ceased making
payments as required by the
instalment agreement in December 2016.
The applicant contended that he was entitled to do so because the
respondent had taken
possession of the motor vehicle. The
applicant’s counsel could not explain how these facts
constituted a defence to
the requested cancellation of the agreement
and subsequent order authorising the respondent to retain possession
of the motor vehicle.
[37]
Counsel for the applicant, correctly, did not pursue the other
defences raised in the papers and in
the heads of argument prepared
by her attorney, namely:
[37.1]
that the vehicle was spoliated by the respondent;
[37.2]
non-compliance with the National Credit Act 34 of 2005 (‘
NCA
’);
[37.3]
lack of consent by the applicant’s wife to the conclusion of
the agreement;
[37.4] the
amount owing is incorrect;
[37.5]
the capacity of the Mr Khoza to depose to the respondent’s
answering affidavit.
[38]
The applicant failed to establish how these contentions, if correct,
established a
bona fide
defence to a claim for cancellation
and subsequent relief arising from the cancellation.
[39]
In my view, they do not.
[40]
In the premises, the applicant has failed to establish good or
sufficient cause for granting the rescission
in terms of Rule 31,
Rule 42 or the common law.
[41]
Accordingly, condonation cannot be granted for the failure to bring
the application timeously
D.
COSTS
[42]
The applicant’s explanation for his failure to bring this
application timeously and for his failure
to enter appearance to
defend is bald and, in the main, based on inadmissible hearsay.
[43]
The applicant raised a number of complaints in the papers which did
not raise a
bona fide
defence to the claim resulting in the
default judgment. The heads of argument filed on his behalf,
with a minimal reference
to authority, similarly, failed to indicate
how these complaints constituted defences. The applicant’s
counsel pursued
only one argument without reference to authority.
[44]
The
overwhelming impression given by the application is that it is not
bona
fide
and that it caused the respondent unnecessary trouble and expense
which it ought not to bear in the sense contemplated by
Johannesburg
City Council
[6]
.
I accordingly find that a punitive costs order is warranted.
ORDER
[45]
In the premises, the following order is made:
[45.1]
The application is dismissed with costs, such costs to be on the
attorney and client scale.
_________________________________
F
SOUTHWOOD
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Appearances:
Date of
hearing
: 6
August 2019
Date
of Judgment
: 02 October 2019
For the
Applicant
: R Tsalong
Instructed
by
: S. Suleman Attorneys
For
Respondent
: CA
du Plessis
Instructed
by
: Rossouws, Lesie Inc
[1]
The relevant
subparagraph of Rule 42 is not specified.
[2]
Firestone
South Africa (Pty ) Ltd v Gentiruco AG
1977
(4) SA 298
(A) at 306H;
First
National Bank of Southern Africa Ltd v Van Rensburg NO
1994
(1) SA 677
(T) at 681E-G
[3]
Lazarus
and another v Nedcor Bank Ltd; Lazarus and Another v Absa Bank Ltd
1999 (2) SA 782
(W) at 785B-D
[4]
Harris
v Absa Bank Ltd t/a Volkskas
2006
(4) SA 527
(T) at [4]
[5]
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) at [11]
[6]
Johannesburg
City Council v Television and Electrical Distributors (Pty) Ltd and
Another
[1997]
1 All SA 455
(A) at 472