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[2021] ZAGPJHC 658
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Qubeka v Firstrand Bank Limited t/a Wesbank In re: Firstrand Bank Limited t/a Wesbank v Qubeka (2019 / 23591) [2021] ZAGPJHC 658 (16 August 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNEBSURG
CASE
NO. 2019 / 23591
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
In
the matter between:
XOLANI
ALBERT QUBEKA
Applicant
(Identity
Number: [....])
and
FIRST
RAND BANK LIMITED T/A
WESBANK
Respondent
In
re:
FIRST
RAND BANK LIMITED T/A
WESBANK
Plaintiff
and
XOLANI
ALBERT QUBEKA
Defendant
JUDGMENT
ALI
AJ
[1]
This is a rescission application brought in terms of Rule 42(1)(a),
alternatively
Rule 31(2)(b) of the Uniform Rules of Court,
alternatively the common law. The respondent was the plaintiff in the
action.
[2]
In its combined summons respondent claimed that the applicant is in
arears in an amount
of R462 978.62. The applicant purchased a
motor vehicle by obtaining credit from the respondent which was
granted on 24 January
2014. The credit agreement specified that
monthly payments were required to be made in not less than 59 months.
Payment for the
60
th
month is referred to as a balloon
payment which required an upfront payment, alternatively the
applicant was required to apply
to the respondent for further credit
to service the balloon payment.
[3]
The applicant applied for credit facilities to settle the balloon
payment. The application
was rejected. It is the non-payment of the
balloon payment which had led to the respondents’ issuing a
letter of demand on
the applicant on 10 June 2019, in terms of
section 129
of the
National Credit Act, 34 of 2005
and subsequently
the issuance of the summons. Such letter was sent by registered post
to the applicant’s
domicilium citandi
which is his
chosen address. (“
domicilium
”).
[4]
The summons was served on the applicant’s
domicilium
on
12 July 2019. The applicant contends that he only became aware of
legal proceedings being instituted against him when the sheriff
arrived to repossess the motor vehicle on 20 October 2020.
[5]
The applicant has raised two defences in support of his application
for rescission.
The first is that he was unaware of court proceedings
instituted against him as the respondent served such documents at his
incorrect
residential address. The second defence is that he was not
in arrears with any of his payments. Yet on his own version,
applicant
contends that there was an amount outstanding in respect of
the balloon payment.
[6]
For rescission to be granted in terms of
rule 31(2)(b)
the applicant
is required to establish “good cause”.
[7]
The courts have held that there is no precise definition of “good
cause.”
[1]
The court in
Brangus v Ranching (Pty) Ltd v Plaaskem (Pty) Ltd
[2]
held that “good cause” cannot be satisfied unless there
is evidence that a substantial defence exists and that the
applicant
has a
bona
fide
desire
to raise the defence if the application is granted.
The
full bench in the Brangus case,
supra
did not interfere with the decision of the lower court on the ground
that it would itself have made a different order. The full
bench
upheld the decision of the lower court on the grounds that the
appellant had not demonstrated a defence which was fit for
trial and
secondly, the appellant had failed to establish a bona fide defence.
(at para 32).
Bona
Fide Defence
[8]
The applicant contends that he did not receive any documents
including court proceedings
from the respondent as the respondent had
his old
domicilium
on file. The applicant further contends
that he had notified the respondents of his change of address by way
of an email dated 12
November 2018 when he applied for further credit
to finance his balloon payment. The email reads:
“
Good morning
Please find copies of
requested documents relating to the re-financing of Balloon Payment
application for registration number CV78KFGP.
The following documents
have been submitted: ID copy; 3 months’ payslips; recent proof
of residence; bank statement. Please
note I do not have insurance but
willing to be provided with one.”
[9]
To corroborate his version, that he notified the respondent of change
of address,
he refers this court to an email dated 19 October 2020,
where the applicant had addressed a letter to his legal
representative
wherein is stated:
“
Good evening,
just to provide information when I contacted WESBANK to re-finance
the Baloon (sic) payment, and you will see that
I also sent them
proof of residents (sic).”
[10]
The contents of the aforesaid email do not constitute a notice of
change of address as provided
for in clause 18.3 of the credit
agreement which reads:
“
You must let us
know, in writing, by hand, or registered mail, of any change to
either of your addresses or email address, telephone
or cellular
phone numbers. If you fail to give notice of a change, we may use the
last address we have for you.”
[11]
The applicant claims that he no longer has the email dated 12
November 2018 in his possession.
No other evidence has been provided
which will inform the court, such as, the date the applicant
re-located to the new address,
no proof of municipal account of his
present residence, whether applicant is living on his own, if not, an
affidavit from a person
living with the applicant to verify that
applicant is indeed living at the aforesaid premises. The attachment
of annexure ‘L’
to the applicant’s replying
affidavit, is in my view, not evidence which is relevant to this
application.
[12]
In the circumstances, the court cannot accept that the applicant
notified the respondent of any
change in his address and has failed
to satisfy this court that he is living at the new address. The
defence is not bona fide and
the evidence presented to this court
does not constitute a defence at trial.
[3]
[13]
Applicant’s second defence is that he does not have an
outstanding balance. Yet, at the
same time, the applicant contends
that he is in arrears on the balloon payment. An application to
re-finance the outstanding balloon
payment was rejected by the
respondent. It is my view that the applicant has failed to raise a
bona fide defence. It is the arrear
amount on the balloon payment
which is the causa for the respondent’s action.
[14]
Applicant’s third ground of defence relates to the interest
charged by the respondent which
was charged at double the agreed rate
as per the agreement. The terms of the agreement were agreed upon at
the commencement of
the agreement, the applicant was therefore fully
aware of the implications of the balloon payment coming into effect.
This cannot
be a bona fide defence raised by the applicant, as
applicant had full knowledge of the terms of the agreement.
[15]
Reckless lending is not ordinarily raised as a defence in a
rescission application. This defence
has no merit as applicant was
successful in his application for obtaining credit and consequently
paid all 59 instalments timeously.
[16]
It is my view that no “good cause” exists as the
applicant has failed to satisfy
the court that a substantial defence
exists and applicant
has not demonstrated a
defence which is fit for trial
. My reasons, for arriving at
this decision are twofold, namely the applicant insists that he had
notified the respondent of a change
in his residential address. This
contention cannot stand as the applicant has failed to provide proof
that he had, indeed, notified
the respondent of the change in his
domicilium address. Secondly, the applicant’s initial defence
is that his account is
not in arrears, however, he subsequently
admits that he is in arrears in respect of the balloon payment.
[17]
The applicant contends that the respondent was required to finance
his balloon payment and that
the respondent charged interest at
double the agreed rate and if it was calculated correctly there would
be no overdue amounts
under the agreement. The respondent was under
no obligation to re-finance the balloon payment. The applicant did
not qualify for
further financing. The interest to be charged and the
implications of the balloon payment was decided between the parties
at the
beginning of the credit agreement. No proof is tendered for
the allegation that the interest charged was at double the agreed
rate.
[18]
Rule 31(2)(b)
provides the court with a wide discretion in evaluating
“good cause” in order to ensure that justice is done per
Wahl
v Prinswil Beleggings (Edms) Bpk
[4]
.
The onus is upon the applicant for rescission to establish that such
god cause exists in the circumstances of each case per Silber
v Ozen
Wholesalers (Pty) Ltd
[5]
supra.
The applicant has failed to do so.
[19]
The courts have generally accepted and have held that “good
cause” cannot be satisfied
unless there is evidence not only of
the existence of a substantial defence but, in addition, of a bona
fide desire by the applicant,
to raise the defence if the application
is granted.
[6]
The court in
Kritzinger,
supra
,
further held that each case must stand on its own facts.
[7]
[20]
In exercising my discretion, after a proper consideration of all the
relevant circumstances,
I find that the applicant has not
demonstrated a defence which is fit for trial and has failed to
establish a bona fide defence
which amounts to “good cause”
for setting aside the judgment as granted by default.
Service
of the Summons
[21]
The applicant contends that the summons and other correspondences
from the respondent was not
served on him as it was served on his old
address.
[22]
The return of service attached to the summons commencing action
contained details relevant to
the applicant and in particular,
reflected applicant’s domicilium as “
74 Loft Carlswald
North Estate, corner Tamboti and Garden Road, Carlswald as the chosen
domicilium of the applicant. The return
of service states that the
summons was duly served by affixing copies to the outer or principal
door at the given address.”
[23]
Rule 4(1)(a)(iv)
provides that “
if
a person so to be served has chosen a domicilium citandi, by
delivering or leaving a copy thereof at the domicilium so chosen.”
Lamont
J in Prism Payment Technologies (Pty) Ltd v …Ions and
Others
[8]
held that:
“
The purpose of
Rule 4
is to provide for a mechanism by which relative certainty can
be obtained that service has been effected upon a defendant. If
certain
minimum standards are complied with as set out in the rule,
then the assumption is made that the service was sufficient to reach
the defendant’s attention and his failure to take steps is not
due to the fact that he does not have knowledge of the summons.”
[24]
In the circumstances, proper service was effected upon the applicant
in accordance with
rule 4(1)(iv).
[25]
In the circumstances, I make the following order:
1.
The rescission application is dismissed with costs.
N.
ALI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was prepared and authored by Acting Judge Ali. It is handed
down electronically by circulation to the parties or their
legal
representatives by email and by uploading it to the electronic file
of this matter on Caselines.
DATE
OF HEARING: 29 JULY 2021
DATE
OF JUDGMENT: 16 AUGUST 2021
COUNSEL
FOR THE APPLICANT: KR ELLIOTT (ATTORNEY)
INSTRUCTED
BY: K R ELLIOTT
COUNSEL
FOR RESPONDENT: L PETER
INSTRUCTED
BY: UTARA INARMAN
[1]
See
Grant v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476-77; Silber v
Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352
[2]
2011
(3) SA 477 (KZP).
[3]
See
Nathan (Pty) Ltd v All Metals (Pty) Ltd
1961 (1) SA 297
(D) at 300F;
Sanderson Technitool (Pty) Ltd v Intermenua (Pty) Ltd
1980 (4) SA
570
(W) at 575-6
[4]
1984
(1) SA 457 (T)
[5]
1954
(2) SA 345 (A)
[6]
Kritzinger
v Northern Natal Implement Co Ltd 1973 (4) SA (542) N at 546 A-C
[7]
Kritzinger
supra, at 546 A-C
[8]
2012
(5) SA 267
(GSJ) at para 21