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[2021] ZANCHC 64
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Crouch v FirstRand Bank Ltd t/a Wesbank (1957/2020) [2021] ZANCHC 64 (19 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
1957/2020
Heard:
04/11/2021
Delivered:
19/11/2021
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
EUBRAIM
JOHN
CROUCH
Applicant
and
FIRST
RAND BANK LTD t/a
WESBANK
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Mamosebo
J
[1]
This is an opposed application for leave to appeal to the Full Bench
of this Division
against the whole of my judgment and order granted
on 06 August 2021.
[2]
In his Notice of Application for Leave to Appeal filed with the
office of the Registrar
on 30 August 2021, the applicant raised what
seems to be about 12 grounds of appeal which, in relevant parts, can
be categorised
under three grounds:
2.1
That the Court had erred in finding that the applicant lacked
bona
fides;
2.2
That the Court had misdirected itself in its finding that a proper
assessment was conducted; and
2.3
That the Court had erred in finding that the applicant failed to
fully disclose his financial interest or
to find that such
non-disclosure did not materially affect the ability of the
respondent to conduct a proper assessment.
[3]
The test for an application for leave to appeal is governed by
section 17(1) of the
Superior Courts Act
[1]
,
which has raised the threshold of the test for leave to appeal. The
applicant must demonstrate to the Court that there are reasonable
prospects that the appeal would succeed. Our courts have already
interpreted the phrase “would”, found in section
17(1)(a)(i) of the Act, as indicative of some form of certainty or
realistic chance of success
[2]
.
The applicant brought this application in terms of s 17(1)(a)(i)
alleging reasonable prospects of success.
[4]
The premise moved from is that the main application sought the
rescission of a default
judgment granted against the applicant. In
accordance with
Chetty
[3]
the
onus
rested
on the applicant to establish sufficient cause. See paras 5 and 6 of
the main judgment. Whilst conceding on the one hand
that that he had
a hard row to hoe as a result of the applicant’s failure to
defend the action, Mr Groenewaldt, arguing for
the applicant, merely
skimped through this aspect without giving any explanation for such
failure. He invoked the case of
Harris
[4]
in submitting that this Court should not consider such failure to
justify the default in isolation. In dealing with the applicable
principle Moseneke J, then, stated at para 4:
“
(4)
This application for rescission of judgment was brought under the
common law. The applicant, being the party
which seeks relief, bears
the onus to establish “sufficient cause”. Whether or not
“sufficient cause” has
been shown to exist depends upon
whether:
(1)
The
applicant has presented a reasonable and acceptable explanation of
her default; and
(2)
The
applicant has shown the existence of a bona fide defence, that is one
that has some prospect or probability of success (see
Chetty v The
Law Society, Transvaal
1985 (2) SA 756
(A) at 764J, 765A – D).”
[5]
It is common cause that there was personal service or process of the
summons on the
applicant. He was aware of the intended action against
him and the steps he needed to take to avoid the default, because
they are
clearly set out in the summons, including time frames within
which to act. The applicant failed to furnish any reasonable or
acceptable
explanation of his default in the papers. That is what was
found in the main judgment. For Mr Groenewaldt to argue otherwise on
this aspect is demonstrative of merely going through the motions.
[6]
The main judgment has, in my view, effectively dealt with the aspect
of the assessment
conducted by the respondent. Para 14 of the main
judgment dealt with the submission by Mr Groenewaldt that, had the
bank conducted
a proper assessment, it would have realised that the
applicant was over-indebted and would have declined his application.
Mr Groenewaldt,
referring to ‘OA14’, the applicant’s
affordability assessment and Consumer Bureau Profile conducted by the
respondent,
posed several questions: Why did the bank leave the
expenses portion blank? Why the necessity of submitting the bank
statements
if the bank would not consider them? Was it realistic for
the bank to accept that an amount of R2,000.00 was reasonable for
living
expenses in the current economic climate? How did the bank
arrive
d
at the buffer amount of R5,229.54? It was on
that basis that Mr Groenewaldt submitted that it can reasonably be
inferred that the
respondent did not conduct a full, fair and
reasonable assessment.
[7]
In countering the submissions by Mr Groenewaldt, Mr Van der Merwe,
counsel for the
respondent, took a different approach by pointing out
that the applicant has not crossed the first hurdle of showing that
good
cause existed for the rescission of the judgment. No reasonable
and acceptable explanation for the default was furnished; a finding
made by this Court in the main judgment and not challenged in this
application for leave.
[8]
The applicant contends that this Court made an error in its finding
that the applicant
lacked
bona fides.
Para 19 of the main
judgment has dealt with this aspect but because it is raised afresh,
I will repeat it. Whereas the instalment
sale agreement was concluded
on 18 October 2018 and the applicant took delivery and possession of
the BMW and drove it for more
than two years, it is only after he
fell into arrears and the default judgment was granted against him
after he had failed to defend
the action, that he first raised the
defence of over-indebtedness. I have not discerned anywhere in the
papers where the applicant
approached the bank after the favourable
application to contest the approval of the credit.
[9]
To elaborate further on the aspect of
bona fides
it can be
tied to the argument made on behalf of the applicant that it was not
shown that his non-disclosure of other financial
information
materially affected the application. What the applicant seems to
overlook, and which was pointed out in the main judgment,
was the
misrepresentation regarding his marital regime which, as reflected on
‘OA14’, resulted in his spouse’s
financial strength
not being assessed. What deflates his argument is that he confirmed,
by appending his signature thereto on 25
October 2018, that the
entire contents of ‘OA14’ is true and may be forwarded to
the credit providers on his behalf.
[10]
Mr Groenewaldt intimated that the applicant is a lay person and would
ordinarily not have known
that he had a defence until he had
consulted his lawyer. Mr Van der Merwe was correct in his
counter-argument on this aspect in
that this is shifting the
onus
,
because this is a factual argument and all the applicant needed to do
was to present the facts to his legal representative who
would then
have advised him further. This aspect of the matter emanates from
facts which are within the knowledge of the applicant.
[11]
Section 81(1) of the National Credit Act
[5]
(NCA) which deals with the prevention of reckless credit provides:
“
81(1) When
applying for a credit agreement, and while that application is being
considered by the credit
provider,
the prospective consumer
must fully and truthfully answer any requests for information
made
by the credit provider as part of the assessment required by this
section.”
(Own emphasis)
The
credit provider must take reasonable steps before granting the
consumer credit. We know from the papers that the respondent
has
designed its mechanisms to assess the applicant as can be gleaned
from para 22 of the answering affidavit. The applicant’s
disposable income and living expenses were considered; the applicant
completed an income and expenses breakdown form (‘OA9’)
and indicated therein that his total monthly expenses were R2,644.00;
the applicant failed to disclose a home loan repayment in
the amount
of R8,013.00 and loan repayments of R1,283.00 which were discovered
and considered by the respondent during its assessment;
the
respondent added a precautionary buffer in the amount of R5,229.54 to
cater for unforeseen and undeclared expenses; after a
recalculation,
the applicant’s total living expenses came to R17,265.54 (653%
more than what the applicant had disclosed).
The applicant’s
total disposable income came to R26,631.82 per month which is what
the respondent used to grant him the credit.
All these mechanisms
satisfy the requirements of s 82(1) of the NCA, that the credit
provider may determine for itself the evaluative
mechanisms or models
and procedures to be used in meeting its assessment obligations under
s 81, provided the assessment is fair
and objective. The respondent
has, in my view, conducted a full, fair and reasonable assessment.
What the applicant is doing now
by bringing the same argument is
nothing less than obfuscating.
[12]
Mr Groenewaldt argued with reference to s 81(4)(b) of the NCA that
the Court did not pronounce
whether or not the non-disclosure by the
applicant has materially affected the ability of the credit provider
to make a proper
assessment, therefore this point adds to the
prospects of the applicant’s success on appeal. Mr Groenewaldt
is clutching
at straws here. The fact of the matter is that I was
satisfied that the respondent had taken reasonable steps to assess
the applicant.
[13]
Having dispassionately considered each ground raised by the applicant
in an effort to determine
whether there are reasonable prospects that
another court would come to a different finding than this court whose
judgment is sought
to be appealed against, I have not found any. In
the result, the application for leave to appeal stands to fail.
[14]
The following order is made:
The application for leave
to appeal is dismissed with costs.
________________
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant:
Mr S Groenewaldt
Instructed
by:
Towell and Groenewaldt Attorneys
For
the Respondent:
Adv. HJ Van der Merwe
Instructed
by:
Symington De Kok Inc
c/o
Mervyn Joel Smith Attorneys
[1]
10
of 2013
[2]
The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325
(LCC) at para 6; MEC for Health, Eastern Cape v Mkhitha and
Another
[2016] ZASCA 176
(25 November 2016) at paras 16-17 and Notshokovu v
S
[2016] ZASCA 112
(7 September 2016) at para 2
[3]
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A) at 764J – 765D
[4]
Harris
v Absa Bank Ltd t/a Volkskas [2002] 3 All SA 215 (T)
[5]
34
of 2005