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2023
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[2023] ZAFSHC 52
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Madzibadela v Standard Bank of South Africa Limited and Another (1878/2022;1879/2022) [2023] ZAFSHC 52 (22 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1878/2022
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In
the matter between:
MPHO JONATHAN
MADZIBADELA
Applicant
and
STANDARD
BANK OF SOUTH AFRICA LIMITED
Respondent
CYMBOL
CONSULTING (PTY) LTD
Third Party
In
re:
STANDARD
BANK OF SOUTH AFRICA LIMITED
Plaintiff
and
MPHO
JONATHAN MADZIBADELA
Defendant
CYMBOL
CONSULTING (PTY) LTD
Third Party
Case
number: 1879/2022
In
the matter between:
MPHO
JONATHAN MADZIBADELA
First Applicant
PALESA
MOSIA
Second Applicant
and
STANDARD
BANK OF SOUTH AFRICA LIMITED
Respondent
CYMBOL
CONSULTING (PTY) LTD
Third Party
In
re:
STANDARD
BANK OF SOUTH AFRICA LIMITED
Plaintiff
and
MPHO
JONATHAN MADZIBADELA
First Defendant
PALESA
MOSIA
Second Defendant
CYMBOL
CONSULTING (PTY) LTD
Third Party
HEARD
ON:
17
NOVEMBER 2022
JUDGEMENT
BY:
LOUBSER, J
DELIVERED ON:
The judgment was handed down electronically by circulation to the
parties’ legal representatives
by email and release to SAFLII
on 22 FEBRUARY 2023. The date and time for hand-down is deemed to be
22 FEBRUARY 2023 at 11:00
[1]
The two applications cited are both for the rescission of default
judgements handed
down by Van Zyl, J on 7 July 2022 on an unopposed
basis. In case no. 1878/2022 she granted default judgement against
the applicant
in the amount of R10 946 735.32 plus interest
in favour of the respondent. In case no. 1879/2022 she granted
default
judgement on the same day against the first applicant in the
amount of R8 218 476.10 plus interest in favour of the
respondent
in respect of a certain account held at the respondent,
and certain other amounts in respect of other accounts held at the
respondent.
The learned judge also gave default judgement against the
second applicant under case no. 1879/2022 to pay, jointly and
severally
with the first applicant, the amount of R5 500 000.00
plus interest to the bank.
[2]
Both the applications are
closely linked as far as the facts, the parties involved and
the
grounds for rescission are concerned. In the premises, both the
applications were heard at the same time to avoid the hearing
of a
multiplicity of applications relating to the same subject matter in
different courts.
[3]
In both the main actions from which the default judgements arose, the
claims of Standard
Bank were founded on a settlement agreement
entered into between the bank, Cymbol Consulting and mr. Madzibadela
in his personal
capacity. In this settlement agreement, which was
made an order of court, the debtors acknowledged to be lawfully
indebted to the
bank. The amounts for which default judgement was
granted in both the matters against mr. Madzibadela are the amounts
he failed
to pay to the bank in terms of the settlement agreement.
The default judgement granted against the second applicant in case no
1879/2022 was founded on a guarantee and suretyship she had signed in
favour of the bank for the indebtedness of Cymbol Consulting
to the
bank.
[4]
According to the notice of motion in both the applications for
rescission of the default
judgements, the rescission is sought in
terms of Rule 31(2)(b) or Rule 42 of the Uniform Rules of Court,
alternatively in terms
of the common law. Rule 31(2)(b) provides that
the court may, upon good cause shown, set aside the default judgement
on such terms
as to it seems meet. In terms of Rule 42 the court may
rescind an order or judgement erroneously sought or erroneously
granted
in the absence of any party affected thereby, an order or
judgement in which there is an ambiguity or a patent error or
omission,
but only to the extent of such ambiguity, error or
omission, and an order or judgement granted as the result of a
mistake common
to the parties.
[5]
Before I deal with the grounds advanced for a rescission in more
detail, it is apposite
to refer to the common cause facts behind the
granting of the default judgements. Standard Bank issued summons
against the applicants
in both applications on 21 April 2022. Mr.
Madzibadela filed notices of intention to defend on 10 May 2022,
while Palesa Mosia
filed such notice the following day. On 8 June
2022 a notice of bar was filed in respect of mr. Madzibadela, and on
9 June 2022
a notice of bar was filed in respect of Palesa Mosia. On
14 June 2022 the attorneys representing the applicants requested an
extension
of time to file a plea, which request was refused.
[6]
On 20 June 2022 the bank filed a notice in terms of Rule 31(5)(a) in
both the actions
pertaining to its intention to obtain default
judgement. On 22 June 2022 the attorneys of the applicants served
notices in terms
of Rule 35(12) and (14). On 6 July the applicants
filed their pleas and a third party notice by way of e-mail. On 7
July the default
judgements in question were granted.
[7]
The first ground advanced for a rescission is rather confusing. Mr.
Madzibadela contends
that both the actions were premised on the same
settlement agreement. While this is true, the default judgements
relate to different
accounts held at the bank. The first action is
still pending, and therefore the matter is
lis
pendens
,
it is further contended. This argument makes no sense, since there is
nothing pending. Default judgement has already been granted
in both
the actions. Moreover, the actions were not against the same parties
and the causes of actions were not the same. The applicants
furthermore allege that the settlement agreement, the suretyship and
the guarantee agreements referred to in the respective particulars
of
claim are credit agreements and that the bank has therefore failed to
comply with the provisions of section 81(2) and 129 of
the National
Credit Act
[1]
.
The problem with this argument is of cause the fact that the National
Credit Act is not applicable to settlement agreements at
all.
[2]
Therefore, the submission that a notice of set down for the default
judgements ought to have been served on the applicants
in terms of
this Court’s practice directions, has no merit since the
relevant practice directive pertains to only default
judgements based
on the National Credit Act.
[8]
The applicants further purport to show that they have a
bona
fide
defence to the bank’s claims, and they contend that, were the
court a quo privy to their defences raised in their plea of
6 July
2022, the court would not have granted the default judgements. In
this respect the applicants are overlooking the consequences
of a
notice of bar. In terms of Rule 26 a party who fails to file a plea,
for instance, within the period allowed, will be
ipso
facto
barred. The subsequent filing of notices in terms of Rule 35(12) and
(14) to compel the delivery of documents, does not have the
effect of
suspending the operation of the notice of bar. If a party under bar
needs more time to access documents in order to file
a plea, as the
applicants aver was the case here, that party may apply to court for
an extension of time to compel the delivery
of documents and to file
a plea.
[3]
Needless to say, in this case it was not done. The applicants were
therefore not entitled to serve their pleas on 6 July
2022, and it
could not have any effect on the granting of the default judgements.
[9]
The applicants further contend
that the bank and the Third Party had concluded credit agreements
in
terms of which the bank extended credit facilities to the Third
Party. The bank had thereafter inhibited the Third Party from
carrying out its training obligations and is accordingly a joint
wrongdoer in terms of section 1 of the Apportionment of Damages
Act.
[4]
In addition, the Third Party has indemnified the applicants against
all liability, arising from the bank’s claims,
it is averred.
However, this cannot be correct since it is trite that the Act is not
applicable to contractual claims, as is the
case here.
[10]
The difficulty with these contentions pertaining
to the Third Party is that the Third Party does not appear
to be
properly before the court. The Third Party is alleged to be under
business rescue supervision. In such circumstances, it
cannot be
cited as a third party without the consent of the business rescue
practitioner or the leave of the court.
[11]
It is also alleged by the applicant that the third
party has a counterclaim against the bank. This, however,
is placed
in dispute by the bank in its opposing affidavit.
[12]
It follows that, upon a proper oversight of the defences raised by
the applicants, there is no
merit shown as far as these defences are
concerned. It therefore cannot be said that the applicants have shown
good cause, as required
by Rule 31(2)(b). Good cause requires a
reasonable explanation for the default, and a
bona
fide
defence,
inter
alia
.
[5]
The applicants have also not shown a reasonable explanation for their
default, because they could have applied for an extension
of time.
Sadly, the applicants also failed to show that the default judgements
were erroneously sought or granted, as they were
entitled to do in
terms of Rule 42.
[13]
In the premises, the following orders are made:
1.
The application for rescission under case no. 1878/2022 is dismissed
with costs.
2.
The application for rescission under case no. 1879/2022 is dismissed
with costs.
P.
J. LOUBSER, J
For
the applicants:
Adv. D. Mtsweni with adv. S Maelane
Instructed
by:
Mabotja Attorneys, Pretoria
c/o Van Wyk & Preller
Attorneys, Bloemfontein
For
the respondent:
Adv. J. Els
Instructed
by:
E. G. Cooper Majiedt Inc., Bloemfontein
/roosthuizen
[1]
Act 34
of 2005
[2]
Ratlou
v MAN Financial Services SA (Pty) Ltd 2019(5) SA 117 (SCA)
[3]
Potpale
Investments (Pty) Ltd v Mkize 2016 (5) SA 96 (KZP)
[4]
Act 34
of 1956
[5]
Saphula
v Nedcor Bank Ltd 1999(2) SA 76 (W) at 79 C-D