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[2024] ZAKZPHC 34
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Sikutshwa v First Rand Bank Auto Receivables (RF) Limited (2726/22P) [2024] ZAKZPHC 34 (6 February 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURGL
CASE NUMBER: 2726/22P
In the matter between:
PHAPHAMA
SIKUTSHWA
APPLICANT
And
FIRST RAND BANK AUTO
RECEIVABLES (RF) LIMITED
RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Applicant is seeking an order that the default judgment granted
against him on 6 April
2022 under this case number be rescinded.
The order that was granted was for the return of a Mercedes Benz C
180 Avant Garde.
The application is opposed by Respondent.
[2]
It was submitted on behalf of Applicant that the summons and
particulars of claim
were not received by Applicant and that he only
became aware of the judgment during March 2023 when the Sheriff came
to repossess
the vehicle. It was submitted that the return of
service indicated that Applicant was no longer residing there and
that Respondent
must have been aware thereof. It was further
submitted that the section 129 notices were not received and did not
comply
with the provisions of the National Credit Act and also did
not refer to the correct motor vehicle. It was further
submitted
that Applicant had entered into a compromise with
Respondent as to the repayment of the loan.
[3]
It was submitted on behalf of Respondent that the agreement in clause
22.6 sets out
a non-variation clause that any variation must be in
writing. It is common cause that there was nothing in writing
and also
admitted by Applicant that it was done telephonically.
It is improbable that Respondent would reach an agreement that
Applicant
can only pay when he is in a position to do so. From
page 74 of the papers it is clear that the last payment by Applicant
was during April 2022 in the sum of R 1 000.00 and that no further
payments were received until March 2023 when the application
for
default judgment was brought. The so called compromise is not
set out nor what exactly it entailed. At page 85
of the papers
Applicant admits that he was in arrears with his payments and also at
page 11 of his founding affidavit admits that
the debt has to be
repaid. It was submitted that Applicant failed to set out any
defence and therefore the application could
not succeed. It was
submitted that in the agreement Applicant provided his domicilium
address as 2[...] A[...] T[...] Drive
Virginia. As appears from
the papers the notices in terms of section 129 were sent to that
specific address as well as to
another address. He at no stage
changed his domicilium address which had to be done in writing.
The summons was served
by the Sherriff at the said domicilium
address. It was submitted that even though the vehicle
mentioned in the section 129
letter was incorrect it did not affect
the compliance and service of the summons and that because Applicant
has not disclosed any
defence the application cannot succeed.
[4]
To succeed in this application Applicant has to show a reasonable and
satisfactory
explanation for is default and also that he has a
bona
fide
defence which if the matter has to go to trial has some
prospect of success.
[5]
Firstly the submissions that the section 129 notice and summons were
not received
may be correct but there has been compliance with the
relevant legislation and requirements. The papers indicate that
the
section 129 notice was sent to Applicant by registered mail and
that the first notification was sent to him at his chosen
domicilium.
There was accordingly compliance with the
requirements as set out in Kubyana v Standard Bank of South Africa
Limited
2014 (3) SA 56
(CC) at paragraph 54. Further the
summons was served at his chosen domicilium address and it is common
cause that he did
not change his domicilium address.
Accordingly it was in compliance with the requirements. It is
not alleged by Applicant
that he at any time informed Respondent of a
change in his domicilium address. No written notification is
attached to the
papers. At page 89 of the papers at paragraph
11.3 Applicant admits that it was served at his domicilium.
[6]
Applicant in his affidavit admits the credit agreement and his
payment history.
In paragraph 20 of his founding affidavit he
sets out that one Nandi Ngobhozi advised him to at least make some
means to pay whatever
he could which he did. As already
referred to above for a period of eleven months he made no payments.
Further it does
not set out in paragraph 20 when he made this
telephonic conversation and was informed that he could pay when he
was able to do
so. As appears from page 61 the order for the
return of the vehicle was granted on 6 April 2022 and the warrant for
delivery
was issued on 8 July 2022. The letter which Applicant
attaches as indicating that he had changed his address is a letter
from Respondent dated 15 October 2022 on page 92 and some months
after the warrant for the delivery of the vehicle had been issued.
It therefore does not assist Applicant.
[7]
The fact that the section 129 notice may refer to the incorrect
vehicle, in my view,
does not assist Applicant as he has not
indicated that he has a defence which has prospects of success.
Firstly the conversation
that he refers to which allowed him to pay
whenever he can does not indicate when this took place and is also
highly improbable.
Secondly the agreement specifically provides
that there may be no variation unless it was in writing and it is
common cause that
there is nothing in writing. Accordingly it
has not been shown that there is evidence of a compromise which would
have any
prospect of success if the matter has to go to trial.
Further Applicant admits that he was in arrears with his payments.
The only defence is that of a compromise which as I have set out
above does not have any prospects of success.
[8]
I was referred, on behalf of Applicant, to the decision of Kgomo and
another v Standard
Bank of South Africa and others
2016 (2) SA 184
(GP) where it was held that the judgment had to be rescinded due to
the fact that the section 129 notices were sent to an incorrect
address, as was apparent from the particulars of claim. In my
view the present matter is distinguishable from the said judgment
as
the section 129 notices went to the correct domicilium address chosen
by Applicant which he had not changed and that it was
thus done in
compliance with the requirements as set out in the judgment of
Kubyana referred to above.
[9]
The application is dismissed with costs.
P
C BEZUIDENHOUT J.
JUDGMENT
RESERVED ON:
1
FEBRUARY 2024
JUDGMENT
HANDED DOWN ON:
6
FEBRUARY 2024
COUNSEL
FOR APPLICANT:
S
GIBA
Instructed
by:
Royal
Towers Building
Durban
Tel:
079 224 8173
Ref:
SB/TS/sm/074
Email:
info@zuluattorneys.co.za
c/o
N P Zulu Attorneys
Pietermaritzburg
Tel:
033 345 2013
Email:
npzuluattorneys@telkomsa.net
COUNSEL
FOR RESPONDENT:
C
L L RODEL
Instructed
by:
Glover
Kannieappan Incorporated
Durban
Tel:
031 301 1539
Ref:
MAT82171
c/o
Ta tham Wilkes Attorneys
Pietermaritzburg