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[2019] ZAGPJHC 502
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Ndwalane v Standard Bank of South Africa Limited and Others (10449/2016) [2019] ZAGPJHC 502 (9 December 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 10449/2016
In
the matter between:
NDWALANE:
LULAMA CONFIDENCE
APPLICANT
and
STANDARD
BANK OF SOUTH AFRICA LIMITED
FIRST
RESPONDENT
ALPHONSE
MBWENBWE MUKONGA
SECOND
RESPONDENT
ELON
ILUN MUTONJI MUKONGA
THIRD
RESPONDENT
THE
DEEDS OFFICE
FOURTH
RESPONDENT
JUDGMENT
DREYER
AJ
:
[1]
This is an application for rescission of a
judgment granted by default by this Court on 3 October 2016, in
favour of the First
Respondent, the Standard Bank of South Africa
Limited (“Standard Bank”), for payment of the sum of
R373 157,34,
together with interest on the sum calculated from
15 March 2016 and costs on an attorney and client scale; in
addition, a
declaration that the immovable property, Erf […],
Orange Grove Township, Registration Division IR, Province of Gauteng,
was executable.
[2]
The applicant appeared in person. The
second and third respondents filed opposing papers, but did not
file heads of argument
or appear before me to make oral submissions.
[3]
The
basis for the rescission application is that the Applicant contends
that he was not served with the summons commencing
action,
consequently, that the judgment by default was erroneously sought and
granted
[1]
. This
contention is not born out by the facts.
[3.1]
Summons
initiating action was served on the Applicant on 18 May 2016, at
the property being his chosen
domicilium
address.
[2]
[3.2]
The
Applicant disputes that he received this Summons. Service at a
domicilium
address is a mere presumption, which can be defeated by direct
evidence that there was no service
[3]
,
but no such evidence was placed before me.
[3.3]
On 14 September 2016, the application
for default judgment declaring the property executable was personally
served on the Applicant.
The Applicant does not deny that the
application was served on him. He argues that he does not
recall receiving it.
[3.4]
The application for default judgment
contained the affidavit required in terms of paragraph 10.17 of the
Practice Manual.
This affidavit sets out the amount
of the arrears and informed the Applicant of his right to place
information
before the court if he objected to the property being
declared executable.
[3.5]
The applicant did not avail himself of this
opportunity.
[4]
In these circumstances, where there was not
only proper service of the Summons commencing service, but also
personal service of
the application for default judgment, it cannot
be said that the judgment was erroneously sought and granted.
The applicant
was informed of his rights to approach the court
to place facts before the court to prevent the court from declaring
the property
executable. The applicant did not do so. It
was legally competent for the Court to have granted this order.
The
Applicant has pointed to no irregularity in the default judgment
proceedings or to the conduct of Standard Bank.
[5]
The Applicant acknowledges that the
Standard Bank was entitled to take judgment against him in 2016, as
he was in arrears with his
bond instalment payments. The
Applicant disputes that the Standard Bank could declare the property
executable and sell the
property.
[6]
The reason the Applicant disputes that
Standard Bank could sell the property in execution was that the
Applicant had invested moneys
in the property and had improved the
property, which investment has been lost in the sale of the property
in execution. This is
not a legal basis for rescission of judgment.
[7]
The Applicant acknowledges that he was a
serial defaulter. He contends that these arrears were brought
up to date when demand
was made by the Standard Bank.
[8]
The Applicant entered into an “
easy
sell”
agreement with the Standard
Bank by placing the property on the market. The mandate period
of the “
easy sell”
came to an end on 18 May 2017. The Applicant contends that
the estate agent continued to market the property after the
expiry of
the mandate period, without success. This is common cause.
[9]
Standard Bank contends that the Applicant
would have known about the judgment at the time he entered into the
“
easy sell”
option. The Applicant contends he was not aware of the judgment and
he was not informed of the judgment. The undisputed facts
show
otherwise. Both the application for default judgment and the
warrant of execution were served personally on the applicant.
[10]
The Applicant’ contends that before
the sale in execution he was not “
fairly
treated by the Standard Bank’s legal representatives as they
would not consider his proposal”
on
the settlement of the arrear
s.
The
First Respondent’s representatives wanted immediate
payment of the arrears and would not wait a period of five days
after
the sale in execution for the applicant to be placed in funds
to settle the arrears. While the applicant
may be
aggrieved by the First Respondent’s conduct:
- this is not a legal basis for a rescission of judgment
[11]
On the facts before me, I am of the view
that the judgment was neither erroneously sought nor granted.
[12]
In these circumstances, the Applicant has
failed to bring himself within the parameters of Rule 42 for an
order of rescission
of the judgment and the setting aside of the
warrant of execution. The application must fail.
[13]
Moreover,
the immovable property was sold in execution to the Second and Third
Respondents on 26 October 2017. Registration
of transfer of the
immovable property was effected on 10 January 2018. These
proceedings were only instituted in March 2018.
There is no
explanation for this. The consequence of the launch of the rescission
application after the perfection of the sale
in execution by
registration of transfer, is that the sale and transfer cannot be
impeached and is unassailable.
[4]
[14]
The applicant was not represented, he
appeared in person. While the monetary value of the claim falls
within the jurisdiction of
the magistrate court, the effect of the
judgment was significant to the applicant. The immovable property was
a substantial asset
to him, one that he had invested in, effected
improvements and increased its value. The sale of the property in
execution resulted
in a loss of that investment. While such loss may
rankle the Applicant, it is not a legal basis for the rescission of
the sale
in execution, particularly not after the immovable property
was transferred. This legal construct was not understood and
appreciated
by the applicant. It would in these circumstances
be an injustice to mulct the applicant with costs.
[15]
In the result, I make the following order:
the application is dismissed, no order as to costs.
__________________________
C.J.
DREYER
Acting
Judge of the High Court of
South
Africa
Gauteng
Local Division
Johannesburg
APPEARANCES
:
Date
of hearing:
18 August 2019
Date
of judgment:
__ December 2019
Applicant:
Appeared in person
Counsel
for the First Respondent: ADV. J.C. VILJOEN
Instructed
by:
STUPEL & BERMAN INC.
[1]
Uniform Rule of Court 42
[2]
Amcoal
Colliers Ltd v Truter
1990(1) SA 1 (AD)
[3]
The
fact that a domicilium address has been chosen does not preclude
service in another manner prescribed by the rules, see
Sandton
Square Finance (Pty)Ltd v Biagi, Bertola and Vasco
1997 (1) SA 258
(W) @ 260. However, service at a domicilium
address well knowing the defendant no longer resides there is male
fides see
Thomani
& another v Seboka No & others
2017 (1) SA 51
(GP)@para [35]
[4]
Knox
v Mafokeng & Others
2013 (4) SA 46
(GSJ) @ para 5-6