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2023
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[2023] ZAFSHC 364
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Mokoa and Another v Standard Bank of South Africa Limited (3372/2018) [2023] ZAFSHC 364 (14 September 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 3372/2018
Reportable: NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
In
the matter between:
SELEBOGO
WILLIAM MOKOA
1
st
Applicant
MOTSOAHOLE
ALICE MOKOA
2
nd
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Respondent
IN
RE:
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Applicant
And
SELEBOGO
WILLIAM MOKOA
1
st
Respondent
MOTSOAHOLE
ALICE MOKOA
2
nd
Respondent
HEARD
ON:
15 June 2023
JUDGMENT
BY
:
MHLAMBI,
J
DELIVERED
ON:
14 September
2023
[1] On
07 October 2021, summary judgment was granted against the applicants
for the payment of R 234 093.01
together with interest and costs
on an attorney-client scale.
[2] On
17 October 2022, the applicants filed this application seeking the
following relief:
“
a)
Granting condonation for the late bringing of this application;
b)
Setting aside the default judgment granted on 7 October 2021 in lieu
of the plaintiff’s application for
summary judgment;
c)
Stay or suspension of any and all warrants of execution granted
against the applicant properties; and
d)
Costs of the suit if opposed.”
[3] The
application is opposed on the grounds that:
3.1
Rescission of judgment in terms of Rule 31(2)(b) of the Uniform Rules
of Court is not competent in the circumstances
[1]
;
3.2 The
applicants failed to make out a case in the founding affidavit for
the relief in terms of the common law;
[4]
The application served before me on 15 June 2023. The applicants were
unrepresented and, after the parties had presented
their oral
submissions to the court, the applicants undertook to furnish the
court, within a week from that date, with proof from
their bank that
the capital amount claimed in the summons was never paid into their
bank account in 2007 or at any other stage.
Judgment was then
reserved. The applicants have to date failed to furnish such proof.
[5] On
3 February 2022, and pursuant to the summary judgment granted, the
respondent instituted an application
in terms of Rule 46A of the
Uniform Rules of Court to declare the applicant’s immovable
property specially executable. The
application was served personally
on the applicants and enrolled for hearing on 24 March 2022. The
applicants opposed the application
on 22 March 2022 but failed to
file the necessary papers despite the matter having been enrolled on
several occasions. On 6 October
2022, the applicants once again
appeared in person and were granted the opportunity to file their
rescission application on/or
before 17 October 2022.
[6]
In the application for condonation, the applicants stated in the
founding affidavit
[2]
that they
became aware of the judgment on 7 October 2021, the date on which
they were present in court, but their attorneys, SST
Attorneys, were
not. The first applicant then sent an email to the court clerk, Mrs
Ntwasa, and R Naude, requesting them to have
the case reviewed as it
was finalised in the Judge's Chambers. The applicants were not aware
of this development as they were at
the court, waiting for it to
start. After the default judgment was granted against them, the
applicants unsuccessfully approached
the Human Rights Commission and
Legal Aid South Africa for assistance.
[7]
The Legal Aid of South Africa referred them to the Legal
Practice Council (“the LPC”), that appointed
Messrs De
Beer and Claassen and Mlozana Attorneys to assist them with the
matter on 4 September 2022. The delay in bringing the
application for
rescission was not intentional as the first applicant attempted to
resolve the matter and obtain legal assistance.
[3]
[8] In
their plea, the applicants specifically denied that they concluded
the loan agreement with the plaintiffs
as claimed in the Particulars
of Claim nor signed the loan agreement as alleged. Consequently, they
denied having received any
money from the plaintiff nor applied for
any loan at any of the plaintiff’s branches. The first
applicant submitted in court
on 15 June 2023 that he should be given
about a week to produce proof that the respondent never advanced to
the applicants the
amount claimed in the summons.
[9] The
respondents stated in their answering affidavit that it was factually
incorrect that SST attorneys represented
the applicants at the time
the summary judgment was granted. These attorneys had withdrawn as
the applicant’s attorneys on
14 June 2021. At the time summary
judgment was instituted, the applicants were represented by Legal Aid
which also withdrew on
20 September 2021. The applicants’
explanation for the delay in the period spanning between 7 October
2021, when judgment
was granted, to 4 September 2022, when the LPC
appointed legal representatives for the applicants, was scant and
unsatisfactory.
[10]
The respondent contended further that the applicants also failed to
proffer an explanation why their attorneys of record, including
Legal
Aid and the LPC-appointed attorneys, have all withdrawn. It was
submitted that the reason therefor was that the applicants
did not
have a bona fide defence.
[4]
On
12 January 2007, the applicants, according to the respondent,
accepted the respondent’s offer of the loan of R106 026.00
and signed a debit order instruction, authorizing the respondent to
debit their Nedbank account for the monthly repayment of the
home
loan. The loan amount was duly paid by the transferring attorneys to
the applicants’ Nedbank account whereafter a mortgage
bond was
registered over the applicants’ property on 20 February 2007 in
favour of the respondent. The debit orders were
deducted from the
Nedbank account but were only cancelled after nine years without
explanation.
[5]
The last payment
was made in February 2016.
[6]
[11] The applicants’
application for the rescission of judgment is predicated on Rule
31(2)(b) of the Uniform Rules of Court.
Rule 31(2) provides that:
“
Judgment
on confession and by default and rescission of judgments
(1)
(a) …
(b) …
(c)…
(2) (a)
Whenever in an action the claim or, if there is more than one claim,
any of the claims is not for a debt or
liquidated demand and a
defendant is in default of delivery of notice of intention to defend
or of a plea, the plaintiff may set
the action down as provided in
subrule (4) for default judgment and the court may, after hearing
evidence, grant judgment against
the defendant or make such order as
it deems fit.
(b) A defendant may
within 20 days after acquiring knowledge of such judgment apply to
court upon notice to the plaintiff to set
aside such judgment and the
court may, upon good cause shown, set aside the default judgment on
such terms as it deems fit.”
[12] It is evident that
this application falls outside the ambit of this particular rule. I
agree with the respondent that, contrary
to the rule, the claim
against the applicants is for a debt or a liquidated amount, and the
applicants have already filed their
notice of intention to defend and
a plea. The application for rescission of judgment in terms of Rule
31(2)(b) is not competent
in the circumstances.
[13]
Apart from Rule 31(2)(b), a default judgment may be set aside in
terms of Uniform Rule 42 or the common law.
[7]
Rule 42(1)(a) provides that 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 an order or judgment erroneously sought or
erroneously granted in the absence of any party affected
thereby. In
FREEDOM
STATIONERY (PTY) LTD AND OTHERS v HASSAM AND OTHERS,
[8]
it
was stated that the phrase,
'erroneously
granted',
relates to the procedure followed to obtain the judgment in the
absence of another party, and not the existence of a defence to
the
claim. Thus, a judgment to which a party was procedurally entitled,
cannot be said to have been erroneously granted in the
absence of
another party. The applicants could, therefore, not have employed the
provisions of this rule.
[14]
The common law empowers the court to rescind a judgment obtained on
default of appearance, provided sufficient cause therefor
has been
shown.
[9]
Sufficient cause, for
the rescission of a judgment by default, consists of two
elements which are:
(i)
that the party seeking relief must present a reasonable and
acceptable explanation for his default; and
(ii)
that on the merits such party has a bona fide defence which, prima
facie, carries some prospect of success.
[10]
[15]
I agree with the respondent’s counsel that the applicants have
not fully explained why it took five months after the
summary
judgment was granted, for the first applicant to explain on 22 March
2022 why he was not indebted to the respondent.
[11]
In annexure “A1” to the founding affidavit, the
applicants stated that:
“
5.
This matter was finalised in the Judge Office (sic) while sitting in
Court E. The complaint was sent to Honorable Mrs Ntwasa
and Mr/Mrs R
Naude both never reply. How was this judgment granted with this false
information?
6. Our rights were
violated during that day. See attached code. The case did not take
place in court as the matter was finalized
in the Judge’s
office. We fought with the Judge secretary to give us the outcome of
the meeting of which she sent as SMS
to the Typist to inform us but
never sent the outcome of the case from 9:00 am until 12:30 pm while
sitting and waiting for the
court but never appeared on that day.
7. The manner in which
the outcome was delivered to us was unprofessional and unacceptable.”
[16]
Before 22 March 2022, the delay is explained in broad terms that the
applicants made unsuccessful attempts for legal assistance
to three
institutions before the LPC appointed attorneys to assist them. The
respondent’s counsel correctly pointed out that
the applicants’
explanation for the delay in filing their application was somewhat
glib and lacked particularity. The explanation
was not reasonable and
did not cover the entire period of the delay. It is in the public
interest that there be finality in litigation.
[12]
[17] Having considered
the long litigation between the parties and the hesitant manner in
which the applicants have approached this
case, I am not persuaded
that the applicants have a bona fide defence to the respondent’s
claim. It is therefore my considered
view that this application must
fail.
[18] It is trite that the
successful party is entitled to the costs.
[19] I, therefore, make
the following order:
Order:
The application is
dismissed with costs.
MHLAMBI, J
On
behalf of the Applicant:
In
Person
On
behalf of the respondent:
Adv.
PR Long
Instructed
by:
Strauss
Daly INC
104
Kellner Street
Westdene
BLOEMFONTEIN
[1]
Paragraph 36 of the Answering Affidavit.
[2]
Deposed to on 17 October 2022.
[3]
Para 39 of the FA.
[4]
Para 42 of the AA.
[5]
Para 52 of the AA.
[6]
Para 58 of the AA.
[7]
Erasmus: RS 18, 2022, D1-562A.
[8]
2019
(4) SA 459
(SCA) para 18.
[9]
De
Wet and Others v Western Bank Ltd 1979 (2) SA p1031at 1042.
[10]
De Wet, supra, Chetty v Law Society, Transvaal
1985 (2) SA 756
(A).
[11]
Para 15 of the FA.
[12]
Absa Bank v Petersen
2013 (1) SA 481
(WCC).