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[2021] ZAGPJHC 160
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Letsholo v GMG Trust Company (SA) (Pty) Ltd and Others (4558/2019) [2021] ZAGPJHC 160 (28 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 4558/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:
28/05/2021
In
the matter between:
LETSHOLO
TERRENCE TSHEPO
Applicant
and
GMG
TRUST COMPANY (SA) (PTY) LIMITED
First Respondent
WILLEM
HERMANUS SWANEPOEL N.O
Second Respondent
BRENDAN
HARMSE
N.O
Third Respondent
WESSEL
GIETZMANN STADTLANDER N.O
Fourth Respondent
JUDGMENT
MATSEMELA
AJ
1.
The Applicant seeks rescission of the default
judgement granted against her by this Court on 18 April 2019 and
ancillary relief.
To this end the Applicant relies on the provisions
of Rule 42 (1) (a) of the Uniform Rules of Court, alternatively Rule
31 (2)
(b), further alternatively common law in support of her
application. The Respondent is opposing the application and seeks
that
it be dismissed with costs.
FACTUAL
BACKROUND
2.
On
or about 19 November 2015, the Applicant and Volkswagen Financial
Service South Africa (Pty) Limited entered into an instalment
sale
agreement for the financing of the
2012 Audi A4
multitronic motor
vehicle.
[1]
The Applicant had
breached an instalment sale agreement by her failure to make payment
of the monthly instalments agreed to therein.
By the 30
th
of April 2017, the Applicant was in arrears and has remained in
arrears ever since.
[2]
3.
As at 2 January 2019, the Applicant was in arrears in the sum of R54
896,80.
[3]
During or about
January 2019
,
the
First Respondent despatched a section 129 letter to the applicant.
[4]
No response was received and as it was entitled to. The First
Respondent, which had received cession of the credit agreement,
launched this action under the above the case number during March
2019. Summons was properly served.
[5]
4.
Several days later on 11 March 2019, the Applicant approached a debt
counsellor,
(hereinafter referred to as Summit) for debt review.
Summit then contacted the First Respondent and requested copy of the
summons,
[6]
as the
Applicant was no longer in possession thereof. Du Bruyn on behalf of
the First Respondent arranged that to be done
by the legal secretary
in the employ of the First Respondent’s attorneys on 24 April
2019.
[7]
Several days later the
First Respondent was informed by Summit Financial Planner
(hereinafter referred to as the Summit) that the
Applicant’s
application for debt review could not be accepted because summons had
already been issued and served.
[8]
5.
Thereafter the applicant requested that she be “
given
time to clear the outstanding arrear amount “
and
stating that “
I
am willing to surrender my beautiful and loved car to Wesbank”,
yet
he was informed by Du Bruyn on behalf of the First Respondent by way
of email dated 9 May 2019 that the First Respondent had
already
applied for judgement.
[9]
LEGAL
ISSUES
6.
In his founding affidavit the Applicant has raised
the contention that the judgement was erroneously granted in that:
(a)
She did not receive the summons herein.
[10]
She further states that if this Court has proper regard to her
founding affidavit and the Respondent’s answering affidavit
it
will be clear that the relief sought should be granted by virtue of
there have been an irregularity in the proceedings (no proper
service) and the knowledge of that irregularity would have precluded
this Court from granting the default judgement against the
Applicant.
7.
The Applicant further contends that the First Respondent has failed
to comply
with notices in terms of section 129 of the National Credit
Act.
THE
LAW
8.
Rule 42 (1) (a) provides:
“
The
court may, in addition to any powers it may have,
mero
mutu
or upon application of any party
affected, rescind or vary:
(a)
an order or judgement erroneously granted in the absence of any party
affected thereby”
9.
In
Mutweba
v Mutweba and Another
[11]
Jafta J (as he then was) says the following in paragraph 16
“
Firstly,
the judgement must have erroneously sought or erroneously granted:
secondly, such judgement must have been granted in the
absence of the
applicant: and lastly, the applicant’s rights or interests must
be affected by the judgement. Once those
three requirements are
established, the applicant would ordinarily be entitled
to succeed, cadit quaestor. He is not
requested to show good cause in
addition to thereto.”
10.
The Court in
Promedia
Drukkers and Uitgewers (Edms) Bpk v Kaimowitz and
Others
[12]
at paragraph 417 G-I says
the following:
“
Relief
may be granted under this Rule if:
(i)
the court which made the order lacked competency to do so;
(ii)
at the time of the order was made the court was unaware of the facts
which if then known to it, would have precluded the granting
of
order; or
(iii)
there was an irregularity in the proceedings.”
ANALYSIS
OF THE FACTS
11.
The return of service of service supplied by the Respondents
appears
[13]
in the record of
the proceedings as annexure “K” and is dated 7 March
2019. It is recorded by the sheriff that:
“
I
served the combined summons with the particulars of claim and
annexures, by affixing a true and exact copy thereof to the outer
principal door as the premises were locked, thus prevents the sheriff
from serving in any other manner. No other service possible
after
diligent search and inquiry.”
12.
However, the terms of the instalment sale agreement were clear an
explicit, the relevant
summons and attachments were served by the
Sheriff to the Applicant’s chosen
domicilium
address. It
is my view that the First Respondent has demonstrated in his
answering affidavit that the summons was properly served
at the
chosen
domicilium executandi
. The Applicant had at some stage
had requested a copy via Summit and it was forwarded to them. This
demonstrate that the Applicant
had knowledge of the summons.
13.
The purpose of serving the summons by the sheriff is to bring to the
attention of the other
of the institution of legal proceedings. The
Applicant cannot be heard to saying that she did not receive the
summons and therefore
does not have any knowledge of the legal
proceedings when Summit did request the copy of the summons from the
First Respondent.
14.
I am of the view that Applicant’s statement that she is willing
to surrender the vehicle,
does amount to an indication that she was
aware of the proceedings was prepared to terminate the credit
agreement in terms of clause
11.1 of the credit agreement. Therefore,
I cannot agree with the argument by the Applicant that she was simply
prepared to surrender
the vehicle to the First Respondent until she
was afforded time to clear the outstanding arrears. Therefore, the
Applicant’s
legal argument on this issue had to be dismissed.
FAILURE
TO COMPLYWITH NOTICES IN TERMS OF SEC 129
15.
The First Respondent states
[14]
that the track and trace report of South African Post Office
(annexure J to the First Respondent particulars of claim) reflected
that the First Notification to the recipient was dated 21 January
2019 to the domicilium executandi. It is my view that the formal
notice in terms of section 129 of the National Credit Act was
compliant with the legal requirements and applicable case law. It
is
further my view that the First Respondent has amply demonstrated that
he has complied with the rules of court and the National
Credit Act
throughout. Accordingly, the Applicant’s contentions in this
regard must also be rejected.
Bona
Fide Defence
16.
It was argued on behalf of the Respondents that even if the Court
would grant recission
of the judgement at the end of the day the
Applicant does not have a bona fide defence. The counter argument by
the Applicant is
that the First Respondent has violated the Credit
Agreement by denying the Applicant the opportunity to settle the
arrears.
17.
The threshold that had to be crossed by the Appellant is the one set
in the matter of
Maharaj
v Barclays National Bank Limited
1976
(1) SA 418
(A)
at page 423 which is as follows:
[a] Whether the
Respondent has disclosed the nature and grounds of his defence, and;
[b] Whether on the
facts so disclosed, the Respondent appears to have, as to either the
whole or part of the claim, a defence
which is bona fide and good in
law.
18.
It is common cause that the applicant attempted to make payment and
settlement arrangements
with the First Respondent as set out in his
email dated 21 November 2018, and the First Respondent trust accepted
the applicant’s
proposal.
[15]
Despite the First Respondent having afforded indulgence to the
applicant, he failed to make any payment whatsoever in terms of
his
proposed settlement. The First Respondent thereafter required the
services of tracing agents to recover possession of the vehicle.
[16]
19.
The Applicant further alleges that the First Respondent failed to
comply with the credit
agreement and yet she herself has failed in
numerous ways to comply with his contractual obligations and
continues to retain possession
of the vehicle agreement and the
arrears. She has failed to pay even one cent since she fell into
arrears.
20.
The Applicant has revealed no defence whatsoever to the First
Respondent’s claims.
I am of the view that the sole reason for
the Applicant’s application for rescission is to avoid the
relief granted against
him by the court on 18 April 2019 and to
further delay finalisation of this matter.
I
therefore make the following order.
1.
The Applicant’s application is dismissed with costs.
MOLEFE
MATSEMELA
ACTING
JUDGE OF THE GAUTENG LOCAL DIVISION
OF
THE HIGH COURT, 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 28 May 2021.
APPEARANCES:
For
the Applicant
Adv. K S Matlala
Instructed
by
Tony Tshivhase Inc.
For
the Respondent
Adv K Meyer
Instructed
by
Smit Jones and Pratt
[1]
Annexure
“TTL 10”, pp 28-30
[2]
Annexure
“SS2”, p 74
[3]
P
45 par 4.1, and p 11, par 37
[4]
Annexure
“TTL 15”, pp 36-37
[5]
Annexure
“TTL 4”, p 35
[6]
P
51, par 10.3
[7]
Annexures
“SS9” and “SS10”, PP 89 and 90
[8]
Annexure
“TTL11”, pp 31-32
[9]
P
52, par 10.5
[10]
P
52, par 10.5
[11]
[2001]
1 All SA 83 (Tk)
[12]
1996
(4) SA 411
(C )
[13]
P
84 of Indexed Bundle
[14]
Answering
affidavit page 009-18 paragraph 23.1
[15]
Pp
47 and 48
[16]
P
49, pars 5.4, 5.5 and 5.6