About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2023
>>
[2023] ZAECQBHC 47
|
|
Lottering and Another v Absa Bank Limited (834/2020) [2023] ZAECQBHC 47 (29 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN DIVISION,
GQEBERHA)
CASE NO: 834/2020
In
the matter between:-
SAMUEL
STEPHEN LOTTERING
First
applicant
DELENE
ELANA LOTTERING
Second
applicant
And
ABSA
BANK LIMITED
Respondent
JUDGMENT
MATEBESE AJ
[1]
In this matter the applicants approach the court seeking an order in
the following terms:
“
1.
Granting of condonation for the non-compliance with the time frames
stipulated in the High Court
Rules;
2.
Rescission of the monetary judgement granted by the Registrar of this
Honourable Court on
30 June 2020 in whole, namely:
2.1
Payment in the sum of R1382 113.56;
2.2
Payment of interest on the amount of R138211.56 at the rate of 9.75 %
per annum as from the 24 January
2020 to date of final payment, such
interest to be capitalized monthly in arrears.
2.3
Costs of suit (to be taxed) on an attorney and client scale.
3.
Rescission of the warrant of execution granted by the Registrar of
this Honourable Court
on 14 July 2020.
4.
Postponement of any legal action against the Applicants for the
payment of any money dues
under Home Loan Account Number 806167088
pending the provision of the original credit agreement or a copy of
the original thereof
to the satisfaction of the Honourable Court upon
which the Respondent’s claim is based in respect of the Home
Loan Account.
5.
Costs of this application against any opposing Respondent.”
[2]
The application is opposed by Absa Bank Limited, the respondent
herein. I deal with the basis
of the application and the merits or
lack thereof later in this judgement. First, I deal with the factual
background which I consider
relevant to this application. I must
mention that the material facts are common cause between the parties.
Factual
background:
[3]
On 23 March 2020
[1]
applicants
were served with summons in which the respondent claimed, as against
the applicants, payment of the sum of R1 382 113.56
together with interest on the said amount at the rate of 9.75% per
annum, costs and other consequent orders.
[4]
The applicants failed to file a notice to defend the matter. As a
result, on 30 June 2020 the
respondent sought and obtained default
judgement against the applicants for the payment of the amount
referred to above, interest
and costs. It is this judgement that is
sought to be rescinded in these proceedings.
[5]
On 14 July 2020 a Warrant of Execution against the movable property
of the applicants was issued
by the Registrar. A return of
service from the Sheriff reflects that the Warrant was executed on 30
July 2020 and the Sheriff
was informed by the first applicant that
the applicants have no movable assets to satisfy the debt.
[6]
On 16 October 2020 the respondent instituted proceedings in terms of
rule 46A seeking an order
declaring the applicants’ property
executable. The application was set down for 17 November 2020. On 17
November 2020 the
first applicant appeared in person and the matter
was postponed to 24 November 2020 and he was ordered to pay the costs
occasioned
by the postponement.
[7]
On 24 November 2020 the matter was again postponed to 8 December
2020. At the hearing the applicants
were represented by counsel. On 8
December 2020 the applicants, represented by counsel, sought a
postponement of the matter. The
postponement was granted to 19
January 2021 and they were ordered to pay costs of the postponement.
[8]
On 19 January 2021 the application was once again postponed, at the
instance of the applicants,
to 21 January 2021 and the applicants
were directed to file their opposing papers by noon on 20 January
2021 and their Heads of
Argument by end of business on 20 January
2021. In all these appearances the applicants were represented by
counsel.
[9]
On 21 January 2021 the application was postponed
sine die
with
costs reserved. The matter was again before court on 23 February 2021
where it was again postponed sine die with costs
reserved.
[10]
This review application was only launched on 21 January 2021.
[11] In
the founding affidavit there is no explanation for the delay in the
launching of this application. Accordingly
there is no basis for one
to grant the relief sought in prayer 1 of the Notice of Motion.
[12]
It is trite that an applicant seeking condonation must furnish an
explanation that accounts for the full
period of the delay and, above
all the explanation given must be reasonable.
[2]
The exercise of a discretion to grant condonation is one that must be
done judiciously and in the interests of justice. It must
be informed
by facts. Absent facts, it is arbitrary.
[13]
Accordingly, I am unable to grant the condonation sought by the
applicants. The application falls to be dismissed
with costs on this
basis alone.
[14]
However, even if I may be wrong in this finding, the application is
simply without merit and falls to be
dismissed. I say this for the
reasons that follow hereunder.
[15]
First, both under rule 31(2)(b) and the common law an applicant for
rescission must establish good cause
. Good cause includes a full and
frank explanation for the delinquent party’s default. It also
requires the court to consider
the delinquent party’s prospects
of success, usually expressed as a requirement that he has a bona
fide defence. The delinquent
party must also show that the rescission
application is brought bona fide and not for the purpose of delay.
[3]
[16]
Second, the common law rescission remedy is a discretionary remedy.
The remedy may be refused and the applicant
may be non-suited if he
or she unreasonably delays in claiming the remedy.
[4]
[17] It
is clear from what I have stated herein before that the applicants
have delayed in claiming their remedy
under the common law. The
judgement was granted in June 2020 and they were aware of same from
July 2020. They only instituted the
rescission application on 21
January 2021. No explanation is furnished for the delay. Their
attempt at explaining the delay in
instituting the rescission by
saying they had no financial means to instruct an attorney is not
convincing and cannot avail them,
especially regard being had to the
fact that they have not stated anywhere what attempts they made to
seek assistance in this regard.
They have also failed to explain why
they did not institute the proceedings from 24 November 2020, when
they had the assistance
of attorneys and counsel.
[18] In
the circumstances, the delay is unreasonable and it, on its own,
non-suits the applicants in their pursuit
of the common law
rescission.
[19]
Furthermore, the applicants have failed to show that they have a bona
fide defence and that the rescission
application is brought bona
fide. The applicant’s counsel argued that the respondent
overcharged the applicants for interest
and as a result the amount
claimed and arrears claimed by the respondent do not reflect the
amount due to the respondent. She argued
that the respondent failed
to charge interest as per the debt review order, when same was still
in place.
[20]
There is no merit to this argument. From the applicant’s papers
it is clear that from 08 March 2010,
when the applicants were placed
under debt review, they were charged interest at the rate of 5%. This
continued until 23 July 2019
when the debt review order was
rescinded.
[5]
[21]
The applicants further sought to argue that the institution of the
proceedings by the respondent was an effort
to undermine the debt
review process. There is also no merit to this argument. By the time
the proceedings were instituted the
applicants were no longer under
debt review, same having been brought to an end by the rescission
order granted on 23 July 2019.
On their own version, the applicants
became aware of the rescission order on 4 November 2019
[6]
,
about four months before the summons were issued and served upon the
applicants.
[22]
The applicants do not state in their papers what their defence is to
the claim for monetary order by the
respondent. They have therefore
failed to establish that they have a bona fide defence to the
respondent’s claim.
[23]
Furthermore, regard being had to what I have stated herein before, a
conclusion is inescapable that the applicants
are not bona fide in
bringing this application. They only seek to delay the respondent’s
pursuit of its remedy under the
loan agreement.
[24]
Accordingly, the applicants have failed to make out a case for the
relief sought in the Notice of
Motion. It follows therefore that the
application for rescission also stands to fail on its merits.
Costs
[25]
The general principle on costs is that costs follow the result. The
respondent has succeeded in the application.
There is no reason to
depart from the general rule. The only issue is the scale of such
costs.
[26]
The respondent sought costs on a punitive scale. In my view the
respondent is only entitled to party and
party costs in this
application. I see no reason to award costs on a punitive scale.
[27] In
the result the following order is made.
1.
The applicants’ application
for condonation is dismissed.
2.
The rescission application is also
dismissed.
3.
The applicants shall pay the costs
of the application on a party and party scale.
Z.Z. Matebese
Acting Judge of the
High Court
Appearances:
For
the applicant:
Adv
Masiza
Instructed
by:
Brendan
Weldrick Attorneys
For
the respondents:
Adv
Ellis
Instructed
by:
Velile
Tinto & Associates
C/O
Jacques du Preez Attorneys
Date
Heard:
24
August 2023
Date
delivered:
29
August 2023
[1]
In the Founding affidavit, para.18, the applicants state that they
were served on 18 March 2020. The return of service from the
Sherriff reflects that service was effected personally upon the
first applicant on 23 March 2020.
[2]
Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock
Ltd and Others
2016 (6) SA 181
(SCA) para. 26.
[3]
Ellis v Eden
2023 (1) SA 544
para.31 and 55
[4]
Ellis, supra para.55 and the authority referred to therein.
[5]
Annexure
“SDL3”
to the applicant’s Founding Affidavit
[6]
Paragraph 15 of the Founding Affidavit.