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[2022] ZALMPPHC 4
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Ramakuela v Firstrand Auto Receivables 9RF) LTD (4304/2019) [2022] ZALMPPHC 4 (31 January 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 4304/2019
REPORTABLE:
YES
OF
INTEREST TO THE JUDGES: YES
REVISED
DATE:
31 JANUARY 2022
In
the matter between:
NNDAVHELESENI
KENNETH RAMAKUELA
: APPLICANT
and
FIRSTRAND
AUTO RECEIVABLES 9RF) LTD
: RESPONDENT
In
re: the matter between: -
FIRSTRAND
AUTO RECEIVABLES (RF) LTD
: PLAINTIFF
And
NNDAVHELESENI
KENNTH RAMAKUELA
: DEFENDANT
JUDGMENT
MANGENA
AJ:
[1]
On the 20
th
January 2020 the registrar of this court granted
default judgment against the applicant and ordered for the
cancellation of the
agreement between the applicant and the
respondent. The applicant was further ordered to return the motor
vehicle 2015 Jeep Grand
Cherokee 3:6 summit to the respondent.
[2]
On the 22
nd
January 2020, the registrar issued a warrant
authorising the sheriff to attach and remove the vehicle from the
applicant.
[3]
The respondent acting on the authority of the
warrant dispossessed the applicant of the vehicle on 26 November
2020.
[4]
Unhappy with the dispossession, applicant
instituted proceedings for the rescission of judgment in terms of
Rule 42 (1) (a) of the
Uniform Rules of Court, alternatively common
law and further alternatively Rule 31 (2) (b) of the Uniform Rules of
Court.
[5]
The basis of the application as I understand it on
both the papers and the oral submissions was that the judgment was
granted in
error because the registrar is not empowered by the
provisions of the National Credit Act to grant a judgment relating to
the National
Credit Act. There were other submissions made, which
given the conclusions I reach, I do not consider it necessary to deal
with
them, save to state that I did not find them compelling.
[6]
To understand the issue in context, it is
necessary that I set out briefly the facts giving rise to this
application. They are as
follows:- Applicant concluded an installment
sale agreement for the purchase of a motor vehicle with Wesbank, a
division of Firstrand
Bank Limited. In terms of the agreement he was
required to make monthly payments towards the motor vehicle and the
bank reserved
for itself the right to demand the whole balance
outstanding in the event of default. The applicant defaulted and the
bank issued
summons claiming for the cancellation of the agreement
payment of the total balance outstanding as well
as
return of the motor vehicle. The summons were preceded by the notice
issued in compliance with
Section 129
(1) of the National Credit
Act.
[7]
Summons were served at the applicant's chosen
domicilium address and when no appearance to defend was entered, the
bank applied
for a default judgment. The registrar as opposed to the
court granted the default judgment.
[8]
The applicant contends that the registrar was not
compent to grant the default judgment because
Section
130 (3) of the National Credit Act
reserved
that power to the court. He argues that only the court is clothed
with the power to make a determination as to whether
there has been
compliance with the provisions of
Section
129 of the National Credit Act.
In
support of this contention, he finds support in the remarks of Jafta
J in the matter of
Nkata v Firstrand
Bank Limited,
2016 (4) SA 257
(CC)
were
the learned judge authoratively stated that
Section
130 (3) of the National Credit Act
requires
the court to grant default judgment after satisfying itself that
there has been compliance with
Section
129.
The registrar is not empowered to
grant a default judgment on a matter arising out of an agreement
based on the National Credit
Act.
[9]
Relying on Nkata, the applicant contended that
once it is accepted that the registrar was not empowered to grant the
default judgment,
it
follows axiomatically
that the judgment was granted in error and is therefore a nullity.
[10] Counsel for the Bank
whilst accepting that the constitutional court has spoken on the
matter remained unpersuaded that the
remarks of Jafta J in Nkata
constitutes binding authority for the proposition that the registrar
does not have power to grant default
judgment on National Credit Act
agreements. He came well prepared to counter the argument and in his
artillery he had the judgment
of Tlhapi J delivered on 2 May 2018 in
the Gauteng Division of the High Court were the learned judge
discounted the remarks of
Jafta J in Nkata and found that they do not
constitute authority to the effect that registrars do not have the
power to grant default
judgments in National Credit Act matters.
[11]
Tlhapi
J was not alone in her finding that the registrar is empowered to
grant default judgment in National Credit Act matters.
It appears
that in early years of the coming into operation of the National
Credit Act the full court of the Gauteng Division was
called upon to
consider this issue in
Nedbank
Limited v Mateman, Nedbank Limited V Stringer
and
Another,
[2007] ZAGPHC 295
;
2008 (4) SA 276
(T).
In
this case, the registrar declined to grant default judgment in
matters
which could
have
been
brought
in
the
WLD or the Magistrate's court. He had formulated a view that the
provisions of the
National
Credit Act, Section 90 (2) (k) (vi) (aa) (bb) and Section 127 (8)
in
particular divest him of the power to grant the default judgment and
that his court does not have jurisdiction.
[12]
The full court considered the provisions of the
National Credit Act and found that the registrar is competent to
grant default judgment
arising out of the agreement related to the
National Credit Act even in those cases where the matter was
justiciable in the magistrate
court or another court with
jurisdiction like WLD.
[13]
Mr Moolman, counsel for the bank urged me to
consider Mateman favorably in relation to his submissions, more
especially because
it is a decision of the full
court.
[14]
I decline the invitation with no hesitation for
the simple reason that Mateman was decided before Nkata. At any rate,
the court
in that case was not called upon to decide whether the
registrar is competent to grant default judgment on National Credit
Act
related agreements. The issue for consideration was the
jurisdiction of the court in respect of disputes which are
justiciable
in other courts with particular reference to
Section
90 (2) k, (vi) (aa), and (bb).
[15]
I have given due consideration to the judgment of
Tlhapi J in Du Plessis v FirstRand Bank Limited and whilst I
understand her approach
with regard to the importance of the
functions performed by the registrar, I am regrettably unable to
agree with her conclusion
that the reasons by Jafta J in Nkata are
insignificant in so far as the provisions of
Section
130 (3) of the National Credit Act are
concerned.
[16]
Guided by the doctrine of the stare decisis which
is fundamental to the rule
of
law,
I
consider myself
bound
by
the
decision
of
the
Constitutional
Court. The Supreme Court of Appeal explains the importance of the
doctrine in
Patmer Explorations (Pty)
Ltd and Others v The Limpopo Development Tribunal and Others
2018 (4)
SA 107
(SCA)
as follows:
"[4]
The
doctrine
of
stare
decisis
is one that is fundamental to
the
rule
of law. The object of the
doctrine is to avoid uncertainty and confusion, to protect wasted
rights and legitimate expectations as
well as to uphold the dignity
of the court. It serves to lend certainty to the
law."
[17]
In the circumstances, I find that the applicant
succeeds and consequently the default judgment granted on 20 January
2020 is rescindable.
[18] What remains is the
issue of costs. The parties asked that costs follow suit. The
applicant is admittedly in default of his
contractual obligations and
has failed to honor the undertaking he made with bank. The bank was
within its rights to institute
the proceedings and on the applicant's
own version the bank compiled with the provisions of Section 129 (1)
of the National Credit
Act.
[19] Had the matter been
considered by the court as required by Section 130 (3) the balance
would have considerably shifted.
[20] At the commencement
of the hearing during oral submissions, counsel for the applicant
advanced spurious arguments on locus
standi and failure to serve the
summons. There was no merit in these submissions as the necessary
averments were made in the particulars
of claim and the summons were
served at the applicant's chosen address.
[21]
The opposition by the respondent to the
application was therefore not frivolous or vexations. There are
conflicting judgments on
this aspect and the respondent's counsel
made valuable submissions for which I am grateful. It will be unfair
to order the bank
to pay the costs. In my view, a fair order will be
that each party pays its
own costs. In any
case, applicant is asking for an indulgence for failing to comply
with the court rules.
[22]
Consequently it is ordered that.
1.
The default judgment granted by the registrar of
this court on 20 January 2020 is hereby rescinded.
2.
Each party to pay its own costs.
MANGENA
AJ
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION; POLOKWANE
APPEARANCE:
Counsel
for the Plaintiff :
Mr Phasha
Counsel
for the Defendant:
Mr Mooman
Date
Heard on
:
24
January 2022
Judgment
Delivered
:
31
January 2022