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[2021] ZAGPPHC 300
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Absa Bank Limited v Baloyi and Others (9850/2000) [2021] ZAGPPHC 300 (14 May 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO.
(2)
OF INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
DATE:
14 MAY 2021
CASE
NO: 9850/2000
In
the matter between:
ABSA
BANK LIMTED
Plaintiff
and
RASIMATE
THOMAS BALOYI
First
Defendant
JANE
MIHLOTI
BALOYI
Second
Defendant
NEDBANK
LIMITED
Third
Defendant
J
U D G M E N T
This
matter has been heard virtually and otherwise disposed of in terms of
the Directives of the Judge President of this Division.
The
judgment and order are accordingly published and distributed
electronically.
DAVIS,
J
[1]
Introduction
1.1
On the unopposed motion
court roll of 12 May 2021, the initial plaintiff, Absa Bank Ltd
(“Absa”) applied for default
judgment in the amount of R
64 020, 95 together with interest and costs, against the
Defendants, Mr and Mrs Baloyi.
The sum is paltry considering
the extent of litigation in this matter, spanning two decades.
1.2
At the hearing of 12
May 2021, the Defendants applied for a postponement of the
application by way of a substantive application.
It is
necessary to deal with the litigation history as part of the
consideration of the postponement application.
1.3
The Plaintiff and the
Defendants were represented by their respective counsel, who were
heard via the virtual Teams platform.
[2]
The litigation
history
2.1
During 1996, the
Defendants bought the immovable property in question, known as No 28
Motlalentwa Street, Mahube Valley, Mamelodi
East (the “property).
2.2
In 1997, the Defendants
obtained a loan from Absa, secured by a bond over the property,
registered as B5652/97.
2.3
During the beginning of
2020 the Defendants were so far in arrears on their loan repayments
that this prompted Absa to initiate
action for the recovery of the
outstanding amount and to seek execution of the property.
2.4
On 19 May 2000, default
judgment was granted in favour of Absa against the Defendants and
executability of the property was ordered.
2.5
It was only in 2003
and, pursuant to a sale in execution, that the property was sold to a
Ms Modisakeng who promptly sold it to
a Mr Phoku. Mr Phoku in
turn sold the property to a Mr and Mrs Maphuta.
2.6
The initial sale in
execution resulted in Absa’s bond being cancelled and on 8
October 2008 Mr and Mrs Maphuta obtained a
new bond, this time from
Nedbank Ltd (Nedbank).
2.7
The next year, that is
more than nine years after the initial judgment, the Defendants
launched a rescission application on 18 December
2009 against the
judgment granted in favour of Absa.
2.8
On 31 January 2012, Bam
J granted rescission of the aforementioned judgment but postponed the
prayers sought by the Defendants whereby
they claimed transfer of the
property from the Maphuta’s and whereby Nedbank’s bond
should be cancelled.
2.9
Finding out about the
above, Nedbank launched an application to intervene, which was
granted on 11 November 2013.
2.10
On 21 May 2014, the
Defendants obtained an order against Absa (for what exactly, no-one
has been able to explain) with costs.
This was obtained
without notice to Absa.
2.11
When the Defendants on
23 February 2015 set the matter previously postponed by Bam J down
again, Absa got notice hereof and on 20
April 2015 launched an
application for the rescission of the order referred to in paragraph
2.10 above.
2.12
On 26 October 2016,
Teffo J granted Absa’s rescission application.
2.13
On 20 November 2019,
Absa indicated by notice an intention to amend its particulars of
claim, reflecting that its bond had been
cancelled due to the above
events and to reflect some of the relevant subsequent chronology.
2.14
The intended amendment
was not opposed and on 11 December 2019 Absa delivered its amended
pages by way of personal service by sheriff
on the Defendants who
were, at that stage, unrepresented.
2.15
Pursuant to the
amendment of its papers and the intention to defend displayed by the
Defendants’ application for rescission
launched in 2009, Absa
delivered a notice of bar on 13 July 2020, requiring the Defendants
to deliver their plea. The notice
of bar was served
personally. No plea has to date hereof been delivered.
2.16
On 6 November 2020,
Absa launched its current application for default judgment, based on
the above facts.
2.17
On 19 January 2021, the
Defendants, once again being represented, delivered a notice of
intention to oppose, causing the matter
to be removed from the roll
of 21 January 2021.
2.18
After the aforesaid
removal, an intention was apparently expressed by the Defendants to
settle the matter, but nothing came of this.
No answering
affidavit has been delivered since.
2.19
Accordingly, the matter
was enrolled for hearing of the default judgment application on 12
May 2021. On the morning of the
hearing, the Defendants lodged
their application for postponement.
[3]
The application for
postponement
3.1
It is trite that an
applicant applying for a postponement due to his default, is seeking
an indulgence. See
Grootboom
v NPA
2014 (2) SA
68
(CC) at 75F – G.
3.2
The legal principles
applicable to such an application have been set out in a host of
judgments. See: Van Loggenenberg (ed),
Erasmus:
Superior Court Practice
,
vol 2, D1 – 552A at footnote1.
3.3
The principles are,
briefly, that an applicant for postponement must show “good and
strong reasons”, i.e. he or she
must furnish a full and
satisfactory explanation for the circumstances that gave rise to the
application. In addition
to the
bona
fides
of such an
application, the balance of convenience, the timing of the
application and prejudice to the other side, the prospects
of success
on the merits is also an important factor. See
inter
alia
Sekolwane
v Minister of Justice and Constitutional Development
[2006] ZACC 19
;
2007 (3) BCLR 280
(CC) at para
[17]
.
3.4
In the present
instance, none of the above factors have been addressed. The
only complaint formulated, was that the Plaintiff’s
amendment
had not been brought about with prior notice. Not only is this
allegation factually incorrect, but nothing turns
on this. Even
if the amended pages are to be ignored, the cause of action based on
the Defendants’ breach of contract
has remained unaltered since
inception of the litigation.
3.5
There is no explanation
tendered for the Defendants’ long-standing default nor why a
plea has never been delivered.
There is also no explanation for
their default in opposing the current application.
3.6
More fundamentally,
absolutely no defence to Absa’s claim has been disclosed in any
manner or fashion. There is simply
no prospects of any success
on the merits disclosed, despite 20 years of litigation. On all
evidence before the court, the
Defendants appear to be jointly liable
to Absa for the amount claimed.
3.7
The only argument
raised during the debate of the matter was that the rate of interest
proposed was too high. Absa indicated
that it would be
satisfied with a lower rate of interest, such as that prescribed by
the
Prescribed Rate of Interest Act, 55 of 1975
. In practice,
this will make little difference as the total amount of interest will
have been capped by the
in
duplum
– rule long ago, irrespective of the rate applied. I
shall nevertheless take this into consideration in making the
order.
3.8
It was argued that
punitive costs as prayed for by Absa should not be granted. I
disagree. Firstly, the scale of costs
have been agreed in the
initial loan and bond agreements and secondly, the history referred
to in paragraph 2 above and the lack
of merits in the postponement
application, justify such an order.
[4]
Order
1.
The application for
postponement is refused.
2.
The Defendants are
ordered to pay the amount of R64 020, 95 to the Plaintiff
together with interest thereon at the applicable
rate of interest
from time to time in terms of the
Prescribed Rate of Interest Act, 55
of 1975
from 28 March 2000 to date of payment.
3.
The Defendants are,
jointly and severally, the one to pay, the other to be absolved,
ordered to pay the Plaintiff’s costs,
on the scale as between
attorney and client, including the costs of the application for
postponement.
N
DAVIS
Judge
of the High Court
Gauteng Division, Pretoria
Date of
Hearing: 12 May 2021
Judgment
delivered: 14 May 2021
APPEARANCES:
For
the Plaintiff:
Adv. T Raikane
Attorney for
Plaintiff:
Lowndes Dlamini Attorneys,
Johannesburg,
c/o Riaan Bosch
Attorneys, Pretoria
For
the 1
st
& 2
nd
Defendants:
Adv. F M Masweneng
Attorney
for 1
st
and 2
nd
Defendants: Modiba (Moeketsi) Attorneys,
Pretoria