About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 412
|
|
Kganare v Nedbank Limited and Others (49738/2017) [2020] ZAGPJHC 412 (15 December 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
No. 49738/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
15/12/2020
In
the matter between
DA
KGANARE
Applicant
and
NEDBANK
LIMITED
First Respondent
SHERIFF
OF JOHANNESBURG NORTH
Second Respondent
REGISTRAR
OF
DEEDS
Third Respondent
JUDGMENT
MAHOMED,
AJ
1.
This is an application for recission of a
judgment granted 5 November 2018 by Alberts AJ in terms of R31(2)
(a).
2.
The judgment was for payment of the sum of
R1 157 679.62 (being the full outstanding balance), plus
interest at 10.25%
compounded to date of final payment, an order for
the sheriff to issue a writ of execution for sale of a mortgaged
property and
for the registrar of deeds to attend to the transfer of
the said property.
3.
On this date the applicant was present in
court when default judgment was granted.
4.
Subsequently, on 20 February 2019, the
applicant applied for leave to appeal the judgment. This application
for leave was dismissed
with costs when Alberts AJ advised the
applicant, inter alia, that he should apply for a rescission of the
judgment.
5.
In this application for recission, the
applicant seeks the following order:
5.1.
The late filing of this application be
condoned.
5.2.
That all judgments obtained by the First
Respondent against the applicant under the above case number be
rescinded,
5.3.
That the sale of property known as
“Portion 1 erf [....] Northcliff Extension [....] Township
Gauteng Province be stayed pending
the finalisation of this
application or on grounds stipulated in the founding affidavit,
5.4.
That the Fourth (?) respondent be
ordered not to register the property known as Portion 1 erf [....]
Northcliff Extension [….]
Township, Gauteng Province, for the
grounds mentioned in the founding affidavit and pending the
finalisation of this application.
5.5.
That the respondent be ordered to
pay costs in the event of opposition
5.6.
Further and /or alternate relief
BACKGROUND
6.
The applicant and the first respondent
concluded an agreement of loan, in terms of which the first
respondent agreed to lend a sum
of R1.4 million to the applicant.
7.
The loan served as finance for the purchase
of “the immovable property”, which is situated at 4 Tessa
Place, Northcliff
Extension [....], Johannesburg. This is the
applicant’s family home.
8.
The amount loaned is secured by a mortgage
bond registered over the property, which is fully described as
“Portion 8 (A portion
of Portion 1) of erf [....] Northcliff
Extension [....] Township, registration Division I.Q. province of
Gauteng measuring 1731
(one thousand seven hundred and thirty one)
square metres and held by Deed of Transfer No.T39944/04 (‘the
immovable property”).
9.
He has defaulted with the repayment of this
loan amount for over 2 years, his last payment of R300 was in 2017. I
noted from the
transcript of the proceedings before Alberts AJ, the
arrears were more than R400 000, then.
10.
In November 2017, the first respondent
served notices in terms of
section 129
and
130
of the
National Credit
Act, 34 of 2005
on the applicant. The statutory notice/letter was
sent to the chosen domicilium address of the applicant, being, the
home the applicant
purchased as financed by the loan and secured by
the covering/mortgage bond.
11.
In that regard first respondent furnished
the court with proof of posting by registered mail and the track and
trace reports from
the Cresta post office.
12.
In December 2017, the first respondent
launched the application for default judgment (“the main
application”) which
was served by the sheriff at the same
chosen domicilum address.
13.
This application was served on the
applicant during the months of January, May (upon service of the
notice of set down) and October
2018 (with amendment in compliance
with R46, R46A) at the domicilium address.
14.
The first respondent furnished proofs of
services of the main application on each of the occasions, the last
time being in October
2018 which included a supplementary affidavit
in compliance with the amended rules 46 and 46A of the Uniform Rules.
15.
The first respondent received no response
to either the notices nor the application and proceeded to obtain
default judgment against
the applicant, which I referred to earlier.
THIS
APPLICATION
16.
In the application before me the applicant
seeks a recission of the judgment on the grounds set out earlier.
17.
The application for recission of the
judgment was launched in November 2019, approximately 11 months after
the applicant knew of
this judgment and almost 9 months after he was
advised by the Court at the leave to appeal hearing that he could
apply for a recission
of the judgment granted in November 2018, if he
so wished. The applicant knew of this judgment since 5 November 2018
and a year
later brings this application for rescission.
CONDONATION
18.
The applicant applies for condonation of
the late filing of this application.
19.
In his affidavit the applicant has failed
to provide any reason for the long delay
other
than to state that he followed the wrong procedure and did not have
legal representation.
20.
In terms of Rule 31(2)(a) of the Uniform
Rules of Court a judgment debtor who has not filed a notice to defend
or a plea and from
whom is claimed a debt for an unliquidated amount
is permitted 20 days from date that the judgment has come to his
knowledge to
apply for recission of the judgment.
21.
The applicant admitted he knew of the
judgment on 5 November 2019 (although this should read 2018, it is
perhaps a typographical
error), given his confirmed attendance at
court on the date of judgment.
22.
A court has a discretion to condone
non-compliance with rules of court when it must consider whether the
explanation given for delay
is sufficient and acceptable in the
circumstances.
23.
In considering condonation a Court is to
balance two factors, the merits of the applicant’s case and the
applicant’s
default.
24.
An applicant must provide an explanation
for default in his affidavit together with a factual outline of his
case to demonstrate
that it has merit. Based on those facts a court
can consider the strength of applicant’s case on the merits,
his reasons
for his default and the prejudice that may have been
suffered by both parties.
25.
The applicant denied that he received
the statutory notice in terms of the
National Credit Act of 2005
or
the main application for default judgment on any of the three
instances that they were served by sheriff. Furthermore, he followed
the wrong procedure by applying for leave to appeal instead of an
application for recission of judgment and he simply makes a bald
statement that his matter has prospects of success.
26.
This court has no details on which to
assess the merits of his matter and no explanation has been furnished
for the long delay in
launching this application. All the applicant
offers in explanation, is he did not know of the application and he
followed an incorrect
procedure.
27.
In fact, the applicant fails to explain his
“further” delay in applying for recission after he was
advised of the proper
procedure way back in February 2019. He
launched this application only in November 2019.
28.
Clearly
the applicant was in no hurry to resolve this matter nor did he
consider the judgment of any importance. He remained complacent
until
perhaps he realised, he would have to look for alternate
accommodation for his family.
29.
On the facts above, this application for
condonation must fail.
RECISSION
OF JUDGMENT
30.
As set out earlier, a judgment was granted
in terms of R31(2)(b), by default, when the applicant failed to file
a notice to defend
or a plea.
31.
A court has a discretion to grant a
recission of judgment where an applicant sets out “good cause”
for a rescission.
32.
That is, the applicant for a recission must
furnish a court with (i) a reasonable explanation for his default,
demonstrating that
he was not in wilful default, furthermore, (ii) he
must convince a court that he is bona fides in making this
application and (iii)
he must present the court with a bona fide
defence, i.e. he must demonstrate to a court that he has a triable
issue which will
allow him an opportunity to have his matter heard at
trial.
33.
The applicant alleged that he did not
receive the statutory notices in terms of
s129
and
130
of the
National Credit Act of 2005
.
34.
He alleged that had he received them he
would have responded to the notices. The applicant submitted that
over the years he tried
to pay his instalments regularly however he
had lost his job and therefor he fell into arrears.
35.
Furthermore, he denied having received the
application for default judgment which was served at his domicilium
address, which is
also his place of residence, on all three occasions
that first respondent has sent them to him via the Sheriff.
36.
Therefore, he alleges that he was not in
wilful default.
37.
In
Friand v
Nommann 1991 (3) 837 W at 839
the court
held that where there is no service it is a good reason to disprove
wilful default.
38.
Mr van Tonder for the first respondent
submitted that the notice and the application were served on the
domicilium address and that
the sheriffs returns is prima facie
evidence of proper service.
39.
He further submitted that the service was
at a chosen domicilium address and that the post office and the
sheriff on three occasions
served on the same address. Mr van Tonder
argued that the applicant failed to explain why he had not gone off
to the post office
to collect his mail. A track and trace report are
annexed to the pleadings.
40.
Mr van Tonder submitted that first
respondent complied with procedures in the
posting
and service of papers on the applicant and reminded the court that on
the last occasion, when an order was served to compel
filing of heads
of argument for this matter, the applicant accepted service from the
sheriff, at the same address.
41.
In
Rossouw and
Another v FirstRand Bank
2010 (6) SA 439
,
the
court held that:
(a) when registered
post is the mode of delivery, despatch of the registered item is all
that the credit provider need prove, and
(b) the fact that the letter
does not reach the address (of the consumer) is of no consequence in
the enquiry as to whether there
has been compliance with
s129
of the
National Credit Act, where
the registered post is properly employed,
despatch on its own constitutes compliance with
s129.
20
0%">
42.
In
SEBOLA v
STANDARD BANK
2012 (5) SA 145
CC at [ 87],
the court required that the credit provider go further,
“
Where
the credit provider posts the notice, proof of registered despatch to
the address of the consumer, together with proof that
the notice
reached the appropriate post office for delivery of the consumer,
will in the absence of contrary indication constitute
sufficient
proof of delivery. It in contested proceedings the consumer avers
that the notice did not reach him or her, the court
must establish
the truth of the claim”.
43.
I was reminded that the domicilium address
is the family home that the applicant occupies with his family.
44.
Mr van Tonder directed me to the proofs of
service annexed to the pleadings. I have noted that the Cresta Post
office has issued
its stamp and I have read the various reports of
the Sheriff, where the documents were served, either by affixing to
the main gate
or service on a person apparently above 16 years of
age. Each time in compliance with service in terms of Rule 4 of the
Uniform
Rules of Court.
45.
Mr van Tonder submitted the applicant was
simply employing tactics to frustrate the first respondent in
recovering the debt due
and owing.
46.
An applicant must also demonstrate to the
court his bona fides in applying for recission.
47.
It is noteworthy that the applicant
presents no evidence of any efforts he may have made after the date
of judgment to pay the arrears
outstanding on the loan or even
evidence that he may have contacted the first respondent in that
regard.
48.
The Applicant, furthermore, fails to
present any details of a defence that he intends to raise at trial,
other than to state that
he has prospects of success. I note he does
not dispute the debt.
49.
The applicant alleged that he ran a
business and “hopes to repay the loan in the near future”.
I noted that in the application
before Alberts AJ, the applicant was
advised that “he is living on a hope” and must realise
that he is in fact costing
himself more as he delays the inevitable,
as the interest on the loan adds up and is compounded.
50.
In oral submissions, the applicant
continues to “live on a hope” as he informed me that he
was still awaiting payment
from a business deal. He also advised the
Court that had recently secured employment and will pay his debt.
51.
It is clear the applicant is no longer able
to afford this home and is delaying finalisation of this matter. Not
only does the first
respondent suffer prejudice for as long as this
matter is delayed but the applicant himself is compounding his
problem as he continues
to be liable to pay interest on this loan.
52.
In fact, the applicant through this
process has already incurred legal costs, which was granted to the
first respondent in the leave
to appeal application and which costs
were awarded on a higher scale as per the contractual agreement
between the parties.
53.
The amount in arrears was already high when
the matter was before Alberts AJ, a year ago.
54.
Furthermore, Mr van Tonder informed the
court that the applicant failed to file a replying affidavit and that
the first respondent’s
version remains undisputed and must
stand. He is correct.
55.
A replying affidavit affords the applicant
an opportunity to answer to the respondent’s version and
present his defence to
the respondent’s case. If he fails to do
so, then the court is obliged to accept the version that remains
uncontested.
56.
In oral submissions the applicant replied
that he is unrepresented and that he was of the understanding that
the heads of argument
served as the reply to the respondent’s
case.
57.
The applicant has failed to persuade me of
his bona fides in bringing this application.
58.
In addition to his bona fides, an applicant
is required to set out a bona fide defence to first respondent’s
claim.
59.
The applicant must raise a substantial
defence to the claim in law. He must set
out
the nature of the defence, the main facts and thereby demonstrate
that a prima facie case exists. He must demonstrate that he
intends
to raise this defence to have his case heard at trial.
60.
In
Central New
Agency Limited v Celliers
1972 (4) SA 351
NC at 354A
,
was stated a party cannot make loose statements.
61.
In
Pansera
Building Suppliers (Pty) Ltd v Van der Merwe
1986 (3) SA 654
C at
658B-659H
was stated that a party
cannot rely on a Court to make deductions. A defence must exist and
be disclosed.
62.
He cannot bring a defence to delay the
execution of the judgment. In
Silverthorne
v Simon
1907 TS 123
at 124, Grant v Plumbers (Pty) Ltd
1949 (2) SA
470
O at 479, Smith NO v Brummer NO
1954 (3) SA 352
O at 358A,
it was stated that the application must be bona fide and not made
with the intention of delaying the opposite parties claim.
63.
The applicant in casu has failed to set out
any defence in law to the first respondent’s claim. It is clear
from the facts
overall that he is no longer able to afford the loan
and that he is simply delaying the execution of this judgment.
64.
His personal financial position cannot
serve as a defence. In
Scoin Trading v
Bernstein
2011
(2) SA 118
SCA at 124A
, the SCA stated,
“
The law does not regard mere
personal incapability to perform as constituting an impossibility”
65.
He fails to present sufficient detail to
assure the court of a bona fide defence and accordingly this
application must fail.
66.
The applicant argued that his right to
housing is affected. The applicant was advised by Alberts AJ, of his
chances of making a
profit on the date the judgment was granted, way
back in 2018, based on a reserve price.
67.
I am of the view that the applicant could
have considered that advice and taken steps to mitigate his loss. He
should have acted
much earlier to determine his best course of
action, given that the property had been declared specially
executable on 5 November
2018. The evidence is that his last payment
in the sum of R300 was made way back in 2017.
68.
In
Government
of Republic of South Africa v Grootboom
2001 (1) SA 46
CC [36-37] ,
the court sets out that s26(1) of the Constitution does not confer a
right of access to housing per se but only a right of access
to
adequate housing, and each case
has to be
viewed on it facts.
69.
The applicant submitted that the first
respondent could have executed against his movables first which would
have realised sufficient
value to meet all his debts. I was advised
that the arrears amount outstanding is in excess of R400 000,
and the first respondent’s
counsel correctly submitted that the
property was declared specially executable in November 2018 and in
terms of Rules 46 and 46A,
accordingly the first respondent is not
required to first execute against the applicant’s moveable
property.
70.
In
First Rand
Bank Limited v Folscher and Another and similar matters
2011 (4) SA
314
at 330, Jaftha v Schoeman Other, van Rooyen v Stoltz & Others
[2004] ZACC 25
;
2005 (2) SA 140
(4) at 161
it was
confirmed that a court was to consider all the circumstances before
ordering execution against the property if such property
is the
debtor’s primary residence.
71.
This court did not grant the judgment,
however it is noteworthy that in this application no evidence was
presented to me on the
items and values of the movables that would
have been sufficient to pay off the arrears as is alleged by the
applicant. I noted
from the judgment of Alberts AJ, that Mr van
Tonder advised that the arrears amount was too high for the first
respondent to enter
any further negotiations on repayment of this
debt.
72.
On an overall view of facts before me and
the applicant’s failure to furnish this court with sufficient
details of his defence,
the applicant does not satisfy the
requirements for a recission of this judgment.
73.
Accordingly, I make the following order:
73.1.
The application is dismissed with costs.
73.2.
The applicant is to pay costs on an
attorney client scale.
S
MAHOMED
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed
down electronically by circulation to the
parties/their legal representatives by e mail and by uploading
it to the electronic
file of this matter on CaseLines. The date for
hand-down is deemed to be 15 December 2020.
Date
of hearing: 09 September 2020
Date
of judgment: 15 December 2020
Appearances:
Appearance
for Applicant:
In
person
Appearance
for First Respondent:
Adv R van Tonder
Instructed
by
Lowndes Dlamini
Attorneys