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2023
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[2023] ZAGPPHC 367
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Nonyane v Nedbank Limited [2023] ZAGPPHC 367; 40990/2021 (6 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
HIGH COURT, PRETORIA)
Case
no: 40990/2021
In
the matter between:
THABANG
KEFENTSE
NONYANE
Applicant
and
NEDBANK
LIMITED
Respondent
IN RE:
NEDBANK
LIMITED
Plaintiff
And
THABANG
KEFENTSE
NONYANE
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
1. This
is an application for the rescission of a judgment granted by the
Registrar
on 15 December 2021 in terms of which the defendant
(applicant herein) was ordered to return a 2014 Mercedes Benz C180
motor vehicle
to the plaintiff (respondent herein). The defendant,
furthermore, seeks an order for the setting aside of a warrant issued
on 25
January 2022 in terms of which the vehicle was attached and
removed by the Sheriff.
2. The
plaintiff's claim emanates from an Instalment Sale Agreement entered
into between the parties on 15 September 2017 in terms of which the
plaintiff sold the vehicle to the defendant. The defendant
had to
repay the purchase price of the vehicle together with financing costs
and interest by way of monthly instalments.
3. The
plaintiff maintains that the defendant fell into arrears with his
monthly
instalments, which led to the summons being issued and
default judgment being granted by the Registrar.
Registrar competent to
grant default judgment?
4. From
the documents filed of record, the following appears:
4.1
Summons
was issued on 17 August 2021 and served by the Sheriff at the
defendant's chosen
domicilium
on 1 September 2021;
4.2
The
defendant did not file a notice of intention to defendant the matter
and on 13 October 2021, the plaintiff brought an application
for
judgment by default.
4.3
Default
judgment was granted by the Registrar on 15 December 2021.
5. The
defendant maintains that the judgment stands to be rescinded due to
the fact that the Registrar in this division is not empowered to
grant default judgment in matters regulated by
section 130(3)
of the
National Credit Act, 34 of 2005
. The point is well taken and is
supported by the finding of Jafta J in
Nkata v Firstrand Bank
2016
(4) SA 257
CC at para [173]:
"[173] Here the
legal fees claimed by the bank arose in circumstances where the bank
had acted in breach of the Act in
a
number of respects
....
Second, it sought and obtained
a
default judgment
from the registrar of the High Court, something that is incompatible
with
s 130(3)
which requires such matters to be determined
by
the court"
6. This
point was previous upheld in this division in
Theu v First Rand
Auto Receivables
(RF) Limited and Another
(89371/19)
[2020] ZAGPPHC 319 (12 June 2020). The Honourable Acting Judge
President Ledwaba, furthermore, and on 14 February 2022,
issued a
notice which pertinently states that default judgments regulated by
the
National Credit Act shall
be dealt with by a judge in chambers.
7. In
the result, it is patently clear that the registrar did not have the
power or statutory authority to grant the default judgment and that
the judgment stands to be reviewed and set aside.
Warrant for delivery of
goods
8. Having
found that the judgment stands to be set aside, it follows that the
warrant issued in terms of the judgment should also be set aside.
Costs
9. Usually,
an applicant in a rescission application is ordered to pay the cost
of the application or costs is costs in the cause. A respondent will
only be ordered to pay the costs of the appliqation if the
opposition
of the application is frivolous or unreasonable. In
casu,
the
applicant sought a punitive cost order against the respondent.
10. I
find the respondent's persistence in opposing the review application,
notwithstanding the
clear authority and directive in this division,
inconceivable. The legal fees that had to be incurred and the
substantial amount
of court time that was wasted by the plaintiff's
opposition calls, in my view, for a punitive cost order to be granted
against
the respondent.
Order
The
following order is granted:
1.
The
default judgment granted by the registrar on 15 December 2021 is
rescinded and set aside.
2.
The
warrant for delivery of goods issued on 25 January 2022 is set aside.
3.
The
respondent is ordered to return the 2014 Mercedes Benz C180 BE
Classic A/T, more fully described in the abovementioned warrant,
forthwith, to the applicant.
4.
The
respondent is ordered to pay the costs of the application on an
attorney client scale.
JANSE
VAN NIEUWENHUIZEN J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD:
20
& 21 February 2023
DATE
DELIVERED:
6
March 2023
APPEARANCES
For the Applicant:
Adv P Nonyane
Instructed by:
Nonyane
Incorporated
For the Respondent:
Adv K Reddy
Instructed by:
Vezi & de beer
Inc