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[2021] ZANCHC 61
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Mafaro v Standard Bank of South Africa Limited (1023/2018) [2021] ZANCHC 61 (19 November 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 1023/2018
Heard
on: 12/11/2021
Delivered
on: 19/11/2021
Reportable:
No
Circulate
to Judges: No
Circulate
to Magistrates: No
In
the matter between:
ROGER
GERALD FREDERICK MAFARO
(I.D.
No:
[....])
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
(Registration
No:
1962/000738/06)
Respondent
JUDGMENT
ERASMUS,
AJ
[1]
This is an application for rescission of a default judgment granted
by the Registrar of this Court on 20 June 2018 under case
number
1023/2018. A copy of the order is attached as Annexure 'RGFM' to the
founding affidavit.
[2]
The application for rescission was launched on 3 October 2018.
According to the Applicant he had allegedly obtained knowledge
of the
judgment on 15 August 2018. He sought legal advice, and a copy of the
summons was obtained by his attorneys on 18 September
2018. Although
the Applicant avers that proof thereof is attached as Annexure 'RGM9
to the founding affidavit, the said annexure
is a return of service
in respect of service of the summons. There is also no confirmatory
affidavit by his attorney of record.
[3]
The rescission application was enrolled for 26 October 2018. The
Respondent gave notice of its intention to oppose on 4 October
2018.
The rescission application was postponed
sine die,
and it was
ordered that costs would be costs in the application. The Applicant
took no further action. The Respondent eventually
filed its answering
affidavit, together with an application for condonation for the
late filing thereof on 17 August 2021.
The Applicant did not oppose
the condonation application, and has not filed a replying affidavit
in the rescission application.
[4]
The application was enrolled by the Respondent and set
down for hearing 12 November 2021. The Respondent filed heads
of
argument and Adv Olivier appeared at the hearing of the Application.
Despite the notice of set-down having been served on the
Applicant's
attorneys, no heads of argument were filed on behalf of the Applicant
and there was no appearance on his behalf and
he also did not appear
in person.
[5]
The ground for the rescission of the judgment, proffered by the
Applicant, is that he never received notice in terms of
section 129
of the
National Credit Act, No 34 of 2005
. I pause to mention that
notices in terms of the said section were dispatched to him; one on
19 February 2018, sent to him to his
chosen
domicilium citandi et
executandi,
and for which he acknowledged receipt by signing the
courier's delivery note on 21February 2018, and then also a notice
sent by
registered mail to what appears to be his residential address
at which he also resided at the time of his deposed to the founding
affidavit. The Applicant did not respond to the notices.
[6]
Summons was issued on 3 May 2018 and served by affixing a copy at his
chosen
domicilium
address on 18 May 2018. The Applicant also
avers that he did not receive the summons.
[7]
The only defences raised in respect of the claim against him are that
he would have settled the arrears that were claimed therein
to avoid
legal costs and cancellation of the agreement, and that he would also
have attended to a request to have his account restructured.
Despite
having acknowledged receipt of the notice in terms of
section 129
of
the NCA, the Applicant did nothing to remedy his default. Summons was
only issued approximately two and a half months later.
He did not
provide any details of how he intended to settle or restructure the
debt.
[8]
The common law and
rule 42(1)(a)
do not find application in this
rescission application. In terms of
rule 31(2)(b)
an applicant must
apply for rescission of a default judgment within 21 days of having
obtained knowledge of such judgment. The
court may, upon good cause
shown, set aside a default judgment on such terms as to it seems
meet. When deciding whether an applicant
has shown good cause, I must
consider whether the Applicant has given a reasonable explanation of
his default, whether his application
is
bona fide
and not made
with intention of merely delaying the plaintiff's claim and, lastly,
whether he has shown that he has a bona fide defence
to the claim.
[9]
The
explanation of the default must be set out sufficiently to enable the
court to understand how it really came about and to assess
the
Applicant's conduct
and
motives.
Good cause
includes the
existence
of
a
substantial defence.
[1]
[10]
The Applicant has not explained his default sufficiently and, more
so, has not raised a
bona fide
defence. He has not set out
sufficient information to satisfy me that he has any defence to the
claim.
[11]
From the history of this matter, as set out above, and further, the
fact that the Applicant
11.1
has not, since 2018, enrolled the application,
11.2
not filed a replying affidavit, and
11.3
has not filed heads of argument, despite the fact that the
notice of set down was served on the Applicant's attorneys of record
lead me to believe that his application is not
bona fide
and
that it was made purely with the intention to delay the plaintiff's
claim.
Wherefore
the following order is made:
1.
The application for rescission of the default judgment granted
by the Registrar of this Court on 20 June 2018 under case number
1023/2018, is dismissed.
2.
The Applicant in the rescission application is ordered to pay
the costs of the application.
ERASMUS
SL
ACTING
JUDGE; NORTHERN CAPE DIVISION
For
the applicant:
No appearance
Instructed
by:
For
the Respondent:
Adv CJ Olivier
Instructed
by:
Van de Wall Inc. (oio Strauss Daly, Bfn)
[1]
Silber v Ozen Wholesalers (Pty) Ltd 1954(2) SA 345 (A) at 352 and
353A