About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 85
|
|
Moyo v Standard Bank of South Africa Limited and Others (19488/2013) [2021] ZAGPPHC 85 (11 February 2021)
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED
DATE:
11 FEBRUARY 2021
Case
Number: 19488/2013
JUDGE
MOYO
Applicant
And
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
First
Respondent
KATSURA
SOLUTIONS (PTY) LTD
Second
Respondent
THE
REGISTRAR OF DEEDS, JOHANNESBURG
Third
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The applicant seeks leave to appeal the
judgment and order of this court handed down on 23 December 2020.
Grounds of appeal
Grounds 1, 2 and 6
[2]
The applicant submits that the court erred
in having regard to the return of service of the warrant of execution
dated 16 July 2015,
which forms part of the paginated papers, but was
not dealt with by the applicant in his founding affidavit. According
to the applicant,
the court should only have had regard to the
allegations in the founding affidavit which were undisputed.
[3]
According to the applicant, this error
placed him in the invidious position that he could not deal with the
facts surrounding the
return of service.
[4]
The return of service is
prima
facie
proof that the warrant of
execution was served on the applicant personally on 16 July 2015 and
as stated
supra
was
included in the paginated papers prepared by the applicant’s
attorney of record. In considering the application, the court
must
have regard to all the documents before court.
[5]
In view of the fact that the return of
service formed part of the paginated documents, the applicant should
have dealt with the
return in his founding affidavit and his failure
to do so was at his own peril.
Grounds 3, 4 and 5
[6]
It is submitted on behalf of the applicant
that the court erred in finding that the applicant did not take any
steps whatsoever
to speedily finalise the matter and furthermore,
erred in concluding that the applicant’s lack of action has a
bearing on
his
bona fide
defence.
[7]
In this regard, the facts speak for itself.
The default judgment came to the applicant’s notice on 16 July
2015 and the matter
only served before court in the latter part of
2020.
Ground 6
[8]
The applicant alleges that the court erred
in not taking into account that the applicant’s
domicilium
address, to the knowledge of the first
respondent, had changed.
[9]
The applicant remains bound by the terms of
the loan agreement entered into with the first respondent. In terms
of the loan agreement,
the
domicilium
address must be changed by notice in
writing. The fact that the summons was served at the applicant’s
domicilium
address
explains the reason for his default and does not have a bearing on
the applicant’s
bona fide
defence.
Grounds 8 and 9
[10]
The applicant submits that the court erred
in failing to take into account that the application was brought in
terms of the common
law and in refusing condonation notwithstanding
the
bona fide
defences
raised by the applicant.
[11]
Insofar as the court adjudicated the
application in terms of rule 31 of the Uniform Rules of Court, the
rule prescribes the procedure
to be followed in an application to
rescind a judgment granted by default and is clearly applicable to
the relief claimed by the
applicant.
[12]
In respect of the
bona
fide
defence disclosed by the
applicant, the applicant admitted that he was in arrears at the time
default judgment was granted. Save
for alleging that he did not have
an opportunity to avail himself of the procedures contained in
section 129
of the
National Credit Act, 34 of 2005
, the
applicant did not disclose a
bona fide
defence to the claim by the first
respondent.
Conclusion
[13]
Having regard to the test set out in
section 17(1)(a)(i)
of the
Superior Courts Act, 10 of 2013
, to wit:
“
17(1)
Leave of appeal
may
only be given where the judges or judges concerned are of the opinion
that –
(a)(i)
the appeal
would
have a reasonable prospect of success; …”
(own
emphasis),
I am of the view that the
applicant has not met the threshold contained in the section and the
application stands to be dismissed.
Costs
[14]
In terms of the loan agreement between the
applicant and the first respondent, the first respondent is entitled
to costs on an attorney
and client scale and such order will follow.
Order
[15]
In the premises, I grant the following
order:
The application is dismissed with
costs on an attorney and client scale.
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
8 February 2021
(Virtual
hearing.)
DATE
DELIVERED PER COVID19 DIRECTIVES:
11 February 2021
APPEARANCES
Counsel
for the Applicant:
Mr Malale
(With right of
appearance)
Instructed
by:
Malale Nthapelang Attorneys
Counsel for
the First Respondent:
Advocate J. van Heerden
Instructed
by:
Hannes Gouws and Partners Incorporated