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[2021] ZAGPPHC 323
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Mogotsi v Absa Bank Limited (68034/2018) [2021] ZAGPPHC 323 (27 May 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE
NO. 68034/2018
In
the matter between:
IRWIN
RAKGANE
MOGOTSI
Applicant
And
ABSA
BANK
LIMITED
Respondent
JUDGMENT
BARNARDT
AJ
1.
This is an application for the rescission of a summary judgment
granted on 17
April 2019 by Tolmay J. The application is brought by
the applicant in person and only consists of an affidavit by Mr.
Mogotsi
with no Notice of Motion. In the affidavit it is stated that
the application is brought in terms of Rule 42(1)(a) of the Uniform
Rules of Court.
FACTUAL
BACKGROUND
2.
Summons in the main action was issued on 17 September 2017, based on
the applicant’s
failure to comply with his obligations in terms
of a written loan agreement concluded between the applicant and the
respondent
during 2011.
3.
The summons was served on the applicant on 21 September 2018 and due
to his failure
to defend the action, the respondent proceeded to
apply for default judgment in terms of Rule 31(2)(a) and an order in
terms of
Rule 46(1)(a)(ii) and Rule 46A of the Uniform Rules of Court
on 28 January 2019.
4.
On 18 January 2019, the applicant entered a Notice of Intention to
Defend and
consequently the respondent proceeded to apply for summary
judgment. The application for summary judgment was served on the
applicant
at [….] on 2 February 2019.
5.
The applicant did not oppose the summary judgment which was set down
for 17 April
2019 and Tolmay J granted the following order:
“
1.
Payment in the amount of R416 195, 42,
2.
Payment of interest on the amount of R416 195. 42 at the agreed rate
of 9.45%
per annum from 22/08/2018 to date of payment, aforementioned
date inclusive,
3.
An order declaring:
ERF
[….]
MEASURING
813 (EIGHT HUNDRED AND THIRTEEN) SQUARE METRES
HELD
BY DEED OF TRANSFER T4444/11
SUBJECT
TO THE CONDITIONS THEREIN CONTAINED
PHYSICAL
ADDRESS [….], specially executable:
4.
An order authorizing the issuing of a warrant of execution and
directing execution
against the immovable property;
5.
That the property be sold at a sale in execution with a reserve price
set at
R650 000, 00.
6.
Costs to be taxed.”
6.
In consequence of the order, the respondent proceeded to arrange a
sale in execution
to be held on 27 September 2019, but the rescission
application
in casu
was served on 26 August 2019.
7.
Although the respondent opposed the application, the applicant did
not file a
replying affidavit and did not pursue the application for
rescission.
8.
This matter was enrolled on Caselines and set down for hearing on the
opposed
motion roll by the respondent and no heads of argument or
practice note was filed by the applicant.
9.
The application was set down on the opposed motion roll of 1 February
2021 and
Sardiwalla J ordered as follows:
“
1.
The Application is postponed sine die and costs are reserved.
2.
The Applicant is to provide the respondent with details of an
agreement between
himself and the Respondent, in respect of the
arrears and future payments.
3.
Such agreement is to be filed within 30 days of this order.”
10.
On 8 March 2021, the application was argued before me and the
applicant appeared in person.
11.
On 10 March 2021 I received an e-mail message directly form the
applicant (according to
the document it was forwarded to a Linah
Oyebola and it was also forwarded to counsel for the respondent, Adv
Welgemoed
at
advcjwelgemoed@lawcircle.co.za
;
and the
applicant
at
irwinmogotsi@gmail.com
.)
sta
ting
the following:
“
Good
Morning
As
requested by the court to have an agreement with ABSA, the following:
I agree to the
extension of term by 10 years, I will continue to pay an amount of
R4000.00 (Four thousand Rands) per month.
This agreement can be
reviewed in five years if by then the areas are not fully paid or the
property is not paid up.
I request that
the property and life insurance be cancelled with immediate effect as
I have Outsurance to cover that.
Judgment be
cancelled and be removed against me, as this is denting my credit
record and it is blocking me from making business
with other
financial institutions.
This will give me
an opportunity to sort out other matters with a similar case in
Northern Cape.
Be allowed an
opportunity to sell my property privet if need be.
I do not agree to
taking the responsibility for the Legal costs because I did not take
this matter to court, I was always in contact
with ABSA regarding
this matter, our calls were recorded and falls information was given
and when I inquired about my insurance
to assist as they promised,
the matter was expedited and the next thing my Home was to be sold at
an auction. I was never
given a change to say my side of the
story.
Copies of
expenditure to follow.
I trust you find
this in order.
Irwin Rakuane
Mogotsi”
12.
Since the applicant appeared in person and was instructed by
Sardiwalla J to provide details
of an agreement between himself and
the Respondent, I considered the content of his email.
13.
This email contains a counterproposal by the applicant in answer to
an e-mail dated 9 September
2020, addressed to him by Liana Kilian
Eastes, on behalf of the respondent, which was uploaded on Caselines.
“’
WITHOUT
PREJUDICE’
Dear
Mr. Mogotsi
We refer to the
abovementioned matter as well as your emails to Mr. Khulekani from
Absa Bank.
We confirm that we
are the attorneys on record for Absa. Kindly send all
communication directly to us.
We further confirm
that you issued and served an application for rescission of
judgment. To date hereof we have not received
your heads of
argument and you have not applied for a date on the opposed roll.
We serve our index, practice note and heads
of argument on you.
Although you are
dominus litis, our offices proceeded to apply for a date on the
opposed roll in order to argue the application
for rescission of
judgment.
We confirm that no
payment arrangement is in place. However should you wish to
enter into a settlement agreement with Absa,
Absa will accept the
following:
1.
Payment of R5 000, 00 for the first 6 months;
2.
A term extension of 10 years;
3.
The above terms is on condition that you withdraw the application for
rescission
of judgment and tender our clients legal costs.
Kindly revert to us
as soon as possible.
Kind regards”
14.
It is clear from the above quoted e-mails that there is no agreement
between the applicant
and the respondent in respect of the arrears
and future payments and I will therefore proceed with judgment on the
rescission application.
RELIEF
CLAIMED
15.
I take note of the respondent’s point
in limine
that the
application should be dismissed since the applicant did not file a
notice of motion and therefore did not comply with
the provisions of
Rule 6(1) of the Uniform Rules of Court.
16.
However, since the applicant is pursuing this application in person,
and it is possible
to establish the relief he applies for from his
founding affidavit, I will consider his application for rescission.
17.
Although the applicant stated in his affidavit that this is an
application in terms of Rule
42(1)(a), he also referred to good cause
and it is accepted that he also intended to bring the application in
terms of Rule 31(2)(b)
or the common law.
RECISSION
IN TERMS OF RULE 42(1)(a)
18.
Rule 42(1)(a) of the Uniform Rules of Court provide for the
rescission and or variation
of an order or judgment erroneously
sought or erroneously granted in the absence of any party affected
thereby.
An order is
erroneously granted if it was legally incompetent for the court to
have made such an order, if there was an irregularity
in the
proceedings or if the court was unaware of facts, if known to it,
would have precluded it from a procedural point of view
from making
the order.
19.
In the present matter, my view is that the applicant
has failed to show that Rule 42(1) applies to this application as
there is
nothing in his papers that would suggest that there was an
error in obtaining the judgment or that it was invalid.
I
therefore find that this application could not have been brought in
terms of Rule 42(1)(a).
RESCISSION
AT COMMON LAW
20.
For a rescission of an order in terms of the common law, sufficient
cause must be shown.
In
Vilvanathan
and Another v Louw NO
[1]
,
it was held that:
“
The
Appellate Division and the Supreme Court of Appeal have laid down
that at common law ‘it is clear that in principle and
in the
long-standing practice of our courts’ that there are two
‘essential elements of “sufficient cause”
for
rescission of a judgment by default’.
These
are –
(i) that
the party seeking relief must present a reasonable and acceptable
explanation for his default; and
(ii) that
on the merits (i.e. of the action) such party has a bona fide defence
which, prima facie, carries some prospect of
success.
Both
these elements must be present.
”
21.
The applicant did not provide any explanation for his failure to
bring the rescission application
sooner and stated that he has good
cause to have the judgment rescinded, because he is permanently
employed since June 2019 and
will be able to afford the repayments of
the monthly instalments.
22.
He admitted that he was in arrears with his monthly instalments and
failed to provide any
evidence to show that he has entered into any
negotiations with the respondent prior to judgment was granted.
He, therefore,
has no
bona fide
defence which
prima facie
has some prospects of success
23.
Considering the circumstances of this application, the applicant did
not meet the requirements
for a rescission at common law.
RESCISSION
IN TERMS OF RULE 31(2)(b)
24.
Rule 31(2)(b) provides that
“
A
defendant may within twenty days after he or she has knowledge of
such judgment apply to court on notice to the plaintiff to set
aside
such judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as to it seems meet”.
25.
I
n
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
[2]
,
the Supreme Court of Appeal confirmed the requirements for a
rescission in terms of Rule 31(2)(b):
“
The applicant
must show cause why the remedy should be granted. That entails (a)
giving a reasonable explanation of the default;
(b) showing that the
application is made bona fide; and (c) showing that there is a bona
fide defence to the plaintiff’s
claim which prima facie has
some prospectus success. In addition, the application must be brought
within
20 days after the defendant has obtained knowledge of
the judgement”.
26.
The applicant, in his founding affidavit, claimed that he did not
receive the initial summons
nor the application for summary judgment,
even though both documents were served by the sheriff at the
applicant’s chosen
domicilium citandi et executandi
also
being the address provided “where all documents in this matter
be served” in his notice of intention to oppose
the default
judgment application.
27.
He however, learned about the court order on 9 May 2019 but failed to
bring the application
within 20 days thereof. This application was
only brought on 28 August 2019, being three months later, with no
explanation of the
lime lapse.
28.
As referred to earlier, the applicant admitted that he was in default
with his monthly instalments
and had no
bona fide
defence.
29.
It is therefore evident that the applicant also did not meet the
requirements of Rule 31(2)(b) for
a rescission of the judgment by
Tolmay J on 17 April 2019.
30.
In the result I make the following Order:
ORDER:
1.
The application for the rescission of the summary judgment order by
Tolmay J
on 17 April 2019 is dismissed.
2.
The applicant is ordered to pay the costs of the application
including the costs
of 1 February 2021.
ACTING
JUDGE JF BARNARDT
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION
OF THE HIGH COURT, PRETORIA
Delivered: This
judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines.
The date for
hand-down is deemed to be 27 May 2021.
APPEARANCES
For
the applicant: Mr. Irwin Rakgane Mogotsi
In
person
For
the respondent: Adv. CJ Welgemoed
Instructed
by: Delport Van
Der Berg Inc.
Date
of hearing: 8 March 2021
Date
of Judgment: 27 May 2021
[1]
2010
(5) SA 17 (SCA)
[2]
2003 (6) SA 1
(SCA)
(2003), 2 ALL SA 113
at par 11.