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[2021] ZAGPPHC 128
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Seleka v Fast Issuer SPV (RF) Limited and Another (46620/20) [2021] ZAGPPHC 128 (10 March 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 46620/20
DATE:
10 March 2021
DONALD
MODIEGI SELEKA
Applicant
FAST
ISSUER SPV (RF) LIMITED
First Respondent
THE
SHERIFF OR HIS
DEPUTY
Second Respondent
JUDGMENT
MABUSE
J
[1]
This is an application in which the Applicant, Mr Donald Modiegi
Seleka, seeks a number
of reliefs, among them, that a default
judgment and writ of execution issued following the said default
judgment be set aside.
[2]
The application is opposed by the Respondent.
[3]
The Applicant is an adult male, who resides at 25 Bandula, 100 Mopani
Street, Hennops
Park, Centurion, in Pretoria. The Respondent,
Fast Issuer SPV Limited, is a financial institution duly registered
in terms
of the company laws of this country with its registered
office located at 14 Merchant Place, Sandton.
[4]
It is the Applicant’s case that on 6 March 2020 the Respondent
obtained default
judgment against him in his absence and more
importantly, without having complied with the notice requirements of
sections 129(1),
130 and 89(10) of the National Credit Act 34 of 2005
(“the NCA”).
[5]
In terms of s 129(1)(a) of the NCA, credit providers are required,
before approaching
the Court to claim return of the goods, to send
the consumer letters of demand in terms of s 11 of the Credit
Agreements Act.
Such a letter is required to be sent to the
defaulting consumer.
[6]
Section 130(3) of the NCA deals with debt procedures before Court.
Section 130(3)
provides that:
“
Despite
any provision of law or contract to the contrary, in any proceedings
commenced in a Court in respect of a credit agreement
to which this
Act applies, the Court may determine the matter only if the Court is
satisfied that:
(a) in the case of
proceedings to which sections 127, 129 or 131 apply, the procedures
required by those sections have been complied
with.”
Quite
clearly it is the Court that must be satisfied that the provisions of
sections 127, 129 and 131 of the NCA have been complied
with.
[7]
Section 86(10) of the NCA provides that:
“
If
a consumer is in default under a credit agreement that is being
reviewed in terms of this section, the credit provider in respect
of
that credit agreement may be give notice to terminate the review in
the prescribed manner to:
(a)
the consumer;
(b)
the debt counsellor;
(c)
the National Credit Regulator, at any time at least 60 business days
after the date
on which the consumer applied for debt review.”
[8]
After Adv C Mosala, counsel for the Applicant, had addressed the
Court in accordance
with paragraph [4]
supra
,
the Court remarked that in a situation where the consumer was under
debt review in terms of s 86 and he defaults with his obligations,
the service provider is entitled, in terms of s 86(10) of the NCA to
terminate the debt review and to proceed with court proceedings,
there is no need for the credit provider to send a s 129 notice to
the consumer, he informed the Court that if that is the case,
he
stood by and was adamant that the default judgment was irregularly
granted. He informed the Court that the default judgment
granted against the Applicant on 6 March 2020, was not granted by the
Court but was granted, contrary to the provisions of s 130(3)
of the
NCA, by the Registrar of Court.
[9]
Accordingly, the only question that the Court had to decide was
whether the default
judgment of 6 March 2020 was granted by the
Registrar of this Court, in which case, such a judgment would have
been irregularly
granted or by the Court in which case it would
stand.
[10]
Adv Mosala submitted that the Registrar of Court granted the default
judgment in a situation
in which he or she should have referred the
matter to the Court to deal with it. In that manner, the
Registrar acted contrary
to the provisions of s 130(3)(a) of the
NCA. For that reason, the judgment is invalid and needs to be
set aside. In
support of his argument he referred the Court to
Nkata v Firstrand Bank
2016 (4) SA 257
CC at 298
where the
Constitutional Court expressed its displeasure at a Registrar
granting judgments in circumstances where the Court should
have done
so. At paragraph [173] the Court had the following to say:
“
Here
the legal fees claimed by the bank arose in circumstances where the
bank had acted in breach of the Act in a number of respects
….
Second, it sought and obtained a default judgment from the registrar
of the High Court, something that is incompatible
with s 130(3) which
requires such matters to be determined by the court.”
[11]
Adv Mosala was in agreement with the remarks made by Jafta J in the
Nkata matter. He contended
that, in his view, the legislature
was deliberate in referring such matters to Court to grant
judgments. It had intended
to achieve the objects of the NCA.
It could only ensure the objects are achieved by entrusting the
overseeing obligations
to the Court. The oversight function
envisaged in the section is crucial in achieving the objects of the
NCA. That
is an oversight function that requires interpretation
exercise.
[12]
Now, Mr Sebola pointed out to the following pointers that showed that
the default judgment was
not granted by the Court. Where draft
orders are handed over in Court to prevent fraud and corruption, and
orders obtained
by underhand means, counsel normally prints the name
of the Judge who presides over a matter somewhere in the draft
order.
Sometimes counsel comes to Court with a draft order
which does not have the name of the Judge because counsel does not
know which
Judge is going to preside over the matter but which has a
space for the name of the Judge. Once the Judge’s name is
known, it is inserted in manually before the matter is heard.
It is then required and expected of the presiding Judge to
initial
the draft order and date it in order to authenticate it. The
current judgment only had “D1” marked on
it. It had
not been initialled by a Judge nor did it have the Judge’s
name. There was no proof that it was dealt
with by a Judge nor
was there any proof that it was somehow placed before the Court or
judge on an unopposed roll. There
was therefore sufficient
evidence to show that it was not granted by a Court.
[13]
Counsel for the Applicant argued that the Registrar of the Court was
not empowered to grant the
default judgment. A judgment by
default granted by the Registrar of Court in circumstances where it
is inconsistent with
the law, is invalid and of no force. In
support of the law, counsel for the Applicant found support in
Master
of the High Court NO North Gauteng v Motala
2012 (3) SA 325
SCA
.
In this case the Court cited with approval the following passage from
Willis v Cauvin
4 NLR 1883
, judgment by Connor CJ:
“
The
general rule seems to be that a judgment, without jurisdiction in the
Judge pronouncing it, is ineffectual and null. The
maxim extra
territorium jus dicenti inpune non paretur is applicable.”
At paragraph [14]
the Court had the following to say:
“
In
my view, as I have demonstrated, Kruger AJ was not empowered to
issue, and therefore it was incompetent for him to have issued,
the
order that he did. The learned judge had usurped for himself a
power that he did not have. That power had been
expressly left
to the Master by the Act. His order was therefore a nullity.
In acting as he did, Kruger AJ served to
defeat the provisions of a
statutory enactment. It is after all a fundamental principle of
our law that a thing done contrary
to a direct prohibition of the law
is void and of no force and effect."
[14]
On the other hand, Mr P Marx, the First Respondent’s counsel,
argued that the said default
judgment was valid because it had been
granted by a Court. He defended the validity of the default
judgment even by a reference
to
s 23
of the
Superior Courts Act 10 of
2013
. This section provides that:
“
A
judgment by default may be granted and entered by the Registrar of a
division in the manner and in the circumstances prescribed
in the
rules and a judgment so entered is deemed to be a judgment of a Court
of a Division.”
There
is no merit in Adv Marx’s reliance on
s 23
of the
Superior
Courts Act. In
the first place, an argument such as the one he
has raised in defending the judgment, constitutes an indirect
admission that indeed
the default judgment of 6 March 2020 was
granted by the Registrar. This is the reason he invokes the
provisions of
s 23
in order to justify the Registrar’s conduct
in granting the judgment.
[15]
The power of the Registrar of the Court to grant default judgment is
circumscribed. He
does not have power to grant all the
applications for default judgment. He can only do so where the
law expressly authorises
him to do so. The Registrar may
therefore not grant default judgments where it is so prohibited by
statute, such as
s 130
of the NCA. If he oversteps his powers
or where contrary to the statutes, he arrogates to himself the power
to grant a default
judgment, such a default judgment is null and
void.
[16]
Adv Marx was not present when the default judgment was granted.
This he conceded.
He had no knowledge whatsoever about the
circumstances under which the default judgment that constitutes the
subject matter of
this application under consideration was granted.
In my view, once the validity of the default judgment was called into
question,
he was at large to ask his attorney to investigate the
issue and furnish him with an affidavit in that regard. This
was not
done merely because he had relied entirely on the provisions
of
s 23
of the
Superior Courts Act and
was convinced that the default
judgment was correct and had been granted by the Court. I find
that the default judgment of
6 March 2020 was unlawfully granted by
the Registrar inconsistently with the provisions of
s 130
of the
NCA. It is therefore invalid.
In the premises, the
application to set it aside is hereby granted with costs.
The
amended draft order marked “PSP”, hereto attached, is
hereby made an order of this Court.
PM MABUSE
JUDGE OF THE HIGH COURT
Appearances
:
Counsel for the
Applicant:
Adv C Mosala
Instructed
by:
S
Msomi Attorneys
Counsel for the 1
st
Respondent:
Adv P Marx
Instructed
by:
Rossouws, Lesie Inc.
Date on the opposed roll
before Mabuse J:
8 March 2021
Date of
Judgment:
10 March 2021