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2023
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[2023] ZAFSHC 118
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Moloi v Firstrand Bank Limited t/a First National Bank and Others (2073/2019) [2023] ZAFSHC 118 (17 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
2073/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the Application between:
KEABETSWE
SUZAN MOLOI
Applicant
and
FIRSTRAND
BANK LIMITED t/a
FIRST
NATIONAL BANK
1
st
Respondent
JOFANI
DISTRIBUTORS CC
2
nd
Respondent
FANI
PETROS MOLOI
3
rd
Respondent
HEARD
ON:
15 September 2022
JUDGMENT
BY:
KHOOE, AJ
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by way of email and by release to SAFLII.
The date and time for hand-down is deemed to be 14H00 on 17 APRIL
2023.
INTRODUCTION
[1]
The applicant applies for a rescission of a default judgment of this
court granted against the second and
third respondent on 17 January
2019, which was an action instituted by the first respondent against
second and third respondent.
The second and third respondents did not
oppose this application.
[2]
The applicant is married to the third respondent in community of
property. She was not a party to the action
instituted by the first
respondent, in which the first respondent was the plaintiff, the
second respondent was the first defendant
and the third respondent
was the second defendant.
BACKGROUND
AND FACTS
[3]
The facts of this matter are to a large extent common cause.
According to the particulars of claim, on or
about 5 April 2016 and
at Centurion, a written loan agreement was concluded between the
plaintiff and defendants
. In terms of that
loan agreement, the plaintiff would loan the first defendant an
amount of R134 000.00, which amount would be
repaid in 48 monthly
instalments at a prime interest rate of 6.59%. A copy of the said
loan agreement was annexed to the particulars
of claim.
[4] It
was further averred in the particulars of claim that on or about 18
June 2018 at Bloemfontein, the plaintiff
and the first defendant
entered into a written facility agreement. In terms of that
agreement, the plaintiff granted the first
defendant a short term
facility to the amount of R1 200 000.00 at prime interest rate plus
3%. A copy of that agreement was also
annexed to the particulars of
claim.
[5]
Several suretyship agreements were also annexed to the particulars of
claim. In terms of the suretyship agreements,
the second defendant
bound himself jointly and severally in solidum for due performance of
all obligations of the first defendant
towards the plaintiff arising.
The suretyship agreements bore the applicant’s signature for
purposes of consent as she was
not included as a surety in any of the
suretyship agreements.
[6]
Since first defendant defaulted on its obligations towards the
plaintiff in terms of the agreements, the plaintiff
then instituted
proceedings against the defendants. The first and second defendant
did not enter appearance to defend the action
and default judgment
was granted against them, jointly and severally, the one to pay the
other to be absolved.
[7] The
applicant approaches the court for rescission of the default judgment
on the grounds that it was erroneously
granted in her absence for the
purposes of Rule 42 (1) (a) in that she is affected by the order.
This, she contends is so because
the plaintiff has a pending
application in which it seeks an order declaring immovable properties
of the second defendant and herself
specifically executable.
ISSUES
TO BE DECIDED
[8] The
issue is whether or not the default judgment was erroneously granted
in the absence of the applicant for
purposes of Rule 42 (1) (a).
SUBMISSIONS
[9]
Counsel for the applicant submitted that the applicant ought to have
been cited as party to the proceedings
as she is married in community
of property to the second defendant. He further submitted that the
applicant is an affected party
according to the rule as there is a
pending application wherein the plaintiff is seeking to declare the
immovable property of the
joint estate of the applicant and second
defendant specially executable.
[10] Although it
was not raised anywhere in his founding papers, nor in his heads of
argument, counsel for the applicant argued
that the applicant had
also signed the suretyship agreements, therefore she ought to have
been cited in the action proceedings
as she was a co-surety. Counsel
concluded his submission by submitting that the court a quo would not
have granted default judgment
had it been aware that the parties were
married in community of property.
[11]
Counsel for the plaintiff submitted that the applicant did not have
any direct and substantial interest in the subject
matter of the main
action. The action was for payments sounding in money owed to the
plaintiff by the first defendant as principal
debtor and the second
defendant as surety and co-principal debtor. He further argued that
the applicant does not have any direct
and substantial interest in
the matter of the main action but rather a financial interest which
is not enough to establish locus
standi for purposes of Rule 42(1)
(a). Counsel argued that even if the debt sued upon to the main
action is regarded as having
been recoverable from the joint estate
of the applicant and second defendant,
Section
17
(5)
of the
Matrimonial
Property Act 88 of 1984
,
permits the creditor to sue the spouse who incurred the debt in his
own name without it being necessary for such a creditor to
join both
spouses married in community of property. Counsel pointed to
Zake
v Nedcor Bank
Limited
and Another
[1]
for that submission.
[12]
Section 17(5)
of the
Matrimonial Property Act states
:
‘
Where a debt is
recoverable from a joint estate, the spouse who incurred the debt or
both spouses jointly may be sued therefor,
and where a debt has been
incurred for necessaries for the joint household, the spouses may be
sued jointly or severally therefor.’
As this debt was
recoverable from the joint estate, the plaintiff had a right to sue
the spouse who incurred the debt as one in
the main action. I agree
with this submission.
[13] Counsel
further submitted that applicant signed the suretyship agreement to
give consent to her spouse as required by
law and was in fact not a
surety. He referred me to clause 37 of the suretyship agreement
marked PC8, dated 14 April 2016, wherein
the second defendant
confirmed that the suretyship was given by him in the ordinary course
of his trade, profession or business
and declared that the consent of
the applicant was not required.
[14] Rule 42(1) (a)
of the Uniform Rules of Court provides that:
“
(1)
The court may, in addition to any other powers it may have, mero motu
or upon the application of any party affected, rescind
or vary:
(a) An order or judgment
erroneously sought or erroneously granted in the absence of any party
affected thereby”;
[15]
Southwood J, in
Naidoo v Matlala NO
2012 (1) SA 143
(GNP
)
pointed out that, in general terms a judgment is erroneously granted
if there existed at the time of its issue a fact of which
the judge
was unaware, which would have precluded the granting of the judgment
and which would have induced the judge, if aware
of it, not to grant
the judgment. An example is where material facts are not disclosed in
an ex
parte
application, or where facts are deliberately
misrepresented to the court. In the present matter, it is the
applicant’s case
that the order was erroneously granted due to
the fact that she was neither cited nor was she served with the
papers. However,
as stated in Zake
supra
, the creditor may sue
one or both spouses.
[16]
In
Bakoven Ltd v GJ Howes (Pty) Ltd
1990 (2) SA 446
at page 471E
to H
the following was said:
“
An order or
judgment is 'erroneously granted' when the Court commits an 'error'
in the sense of 'a mistake in a matter of law appearing
on the
proceedings of a Court of record' (The Shorter Oxford Dictionary). It
follows that a Court in deciding whether a judgment
was 'erroneously
granted' is, like a Court of Appeal, confined to the record of
proceedings.”
[17]
In my view, the order of Daffue J dated 17 October 2019 was not
granted erroneously when taking into account the following:
17.1
When the application for default
judgment came before court, the record of the proceedings included
the particulars of claim together
with the annexures which were all
placed before the judge. The annexures to the particulars of claim
included the suretyship agreements
PC5 and PC6 signed by both the
second defendant and the applicant. Those two agreements state
clearly that the second defendant
is the surety and the applicant
signed to give the second defendant consent.
17.2
Annexures PC7 and PC8 clearly state that
the sureties are given by the second defendant in the ordinary course
of trading and business,
which confirms that the consent of the
applicant was not required.
17.3
The annexures further included a
confirmation of marital status form which clearly showed that the
second defendant is married in
community of property.
17.4
The plaintiff opted to sue the one and
not both the spouses as the law entitles it to do.
17.5
I am
therefore not convinced that the default judgment was erroneously
granted. Wherefore I make the following order;
ORDER
1.
The application for rescission is
dismissed with costs.
NJ
KHOOE, AJ
On
behalf of Applicant: Mr
N W Phalatsi
Instructed
by: N
W Phalatsi & Partners
info@phalatsi.co.za
BLOEMFONTEIN
On
behalf of respondent: Adv.
HJ Van Der Merwe
hjvdm@rsabar.com
Instructed
by: Symington
& De Kok
tonie@symok.co.za
BLOEMFONTEIN
[1]
1999
(3) SA 767
(SE)