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[2010] ZAGPPHC 210
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First Rand Bank Limited v Pienaar and Another (7408/09) [2010] ZAGPPHC 210 (1 December 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE:
1 December 2010
CASE
NO: 7408/09
In
the matter between:
FIRST
RAND BANK
LIMITED
...................................................
PLAINTIFF
/ RESPONDENT
vs
PIENAAR,
W
...................................................................
../... .
FIRST
DEFENDANT / APPLICANT
PIENAAR,
A
...............................................................................
SECOND
DEFENDANT / APPLICANT
JUDGMENT
BOTHA
J:
This
is an application by the two applicants, Mr and Mrs Pienaar, for the
rescission of a default judgment granted against them
on 5 October
2009.
The
respondent, and plaintiff in the main proceedings, is Standard Bank
of South Africa Ltd.
In
the main proceedings the respondent sued the applicants for payment
of the balance of a home loan secured by a first mortgage.
The
applicants are married out of community of property.
The
following sequence of events is relevant:
On
27 January 2009 the first applicant, Mr Pienaar, applied for debt
review in terms of section 86(2) of the National Credit Act,
2005
(Act 34 of 2005).
On
3 July 2009 the respondent sent a notice to the applicants in terms
of Rule 129(1) of Act 34 of 2005.
On
17 August 2009 the respondent issued summons against the two
applicants.
On
24 August 2009 the summons was served on the applicants at their
domicilium
citandi et executandi.
On
5 October 2009 the respondent obtained default judgment against the
applicants.
On
1
3
October 2009 the sheriff executed a writ of attachment pursuant to
the default judgment.
On
10 March 2010 the first applicant's application for debt review was
on the roll in the Magistrate's Court. On that day the application
was withdrawn.
On
31 May 2009 the first applicant re-applied for debt review. He did
not give notice to the respondent and did not include it as
a
creditor.
On
12 August 2010 the respondent terminated the first applicant's debt
review in terms of section 86(10) of Act 34 of 2005.
In
the first answering affidavit the respondent conceded that on the
face of it the judgment against the first applicant was premature.
After it investigated the matter it lodged a supplementary affidavit
in which it explained what happened on 10 March 2010, namely
that the
first applicant withdrew his application for debt review. It
therefore adopted the attitude that there was no bar to the
enforcement of its claim against the first applicant.
Mr
Botha, who appeared for the applicants, could present no valid
argument in support of the second applicant's application for
rescission. There was proper service on her and she did not apply for
debt review. She has no other defence.
In
respect of the first applicant, he argued that the default judgment
could not have been granted in view of his prior application
for debt
review.
Mr
van Den Heever, who appeared for the respondent, argued that the
reliance on the debt review was a dilatory defence that fell
away
when the application for debt review was withdrawn on 10 March 2010.
In
my view one has to look at the situation as it was when summons was
issued and when the judgment was obtained. If there was a
bar then to
the enforcement of the respondent's claim against the first
applicant, the judgment should be set aside.
The
respondent's own attitude to the effect of the withdrawal of the
application for debt review was ambivalent. If it thought that
the
debt review had come to an end on 10 March 2010 it is not clear why
it found it necessary to terminate it in terms of section
86(10) on
12 August 2010. It must be remembered that it had no knowledge of the
application launched on 31 May 2010. Therefore
it could only have
purported to terminate the debt review initiated by means of the
application launched on 26 January 2009. The
point is that if the
debt review had to be terminated on 12 August 2010, it was still
alive when the steps were taken to enforce
the claim. If it was still
alive on 12 August 2010 it cannot be said that it was retrospectively
extinguished on 10 March 2010.
For
all these reasons I am of the view that the application of the first
applicant for the rescission of the judgment must succeed.
The
parties were in agreement that in that event I should order costs to
be costs in the cause. It is not necessary to make a distinction
between the applicants as far as costs are concerned.
The
parties were also in agreement that if the judgment against the first
applicant is rescinded the court should give directions
in terms of
section 134 of Act 34 of 2005 with regard to possible steps in terms
of sections 86(10) and 86 (11).
In
the result the following order is made:
1.
The
application of the second applicant is dismissed.
2.
The
application of the first applicant succeeds. The default judgment
granted against him on 5 October 2009 is rescinded.
3.
The
respondent may on or before 17 December 2010 give a notice in terms
of section 86(10) of Act 34 of 2005, if so advised.
4.
The
first applicant may within 15 days of receipt of a notice given in
terms of paragraph 3 above, apply in terms of section 86(11)
of Act
31 of 2005, that the debt review resume.
5.
The
action against the first applicant is postponed sine die.
6.
The
costs of this application shall be costs in the action against the
first applicant.
C.
BOTHA
JUDGE
OF THE HIGH COURT