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[2019] ZAGPPHC 116
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Makinta v Firstrand Bank Limited t/a Wesbank (49439/2018) [2019] ZAGPPHC 116 (18 April 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case No: 49439/2018
18/4/2019
In
the matter between:
MMALETSEKA
VERONICA MAKINTA (MAHLATJI)
Applicant
and
FIRSTRAND
BANK LIMITED
t/a
WESBANK
First
Respondent
THE
SHERIFF OF THE HIGH COURT, TSHWANE
NORTH
Second Respondent
JUDGMENT
AVVAKOUMIDES,
AJ
1.
This
is a rescission application brought in terms of Rule 42(1)(a) for the
rescission of a judgment granted by the Registrar of
this Court in
terms of Rule 31(5)(d). In order to obtain a rescission under the
aforesaid sub-rule the Applicant must show that
the prior order,
sought to be rescinded, was one that,
"was
erroneously sought or erroneously granted".
Once
it is established that an order or judgment was erroneously sought or
granted, the court should, without further enquiry, rescind
or vary
the order and it is not necessary for any party to show good cause
for the sub-rule to apply. I am guided by the judgments
in
Tshabalala
v Peer
1979 (4) SA 27
(T) at 300 and
Bakoven Ltd v GJ Howes (Pty) Ltd
1992
(2) SA 466
(E) at 471 (T).
2.
Although
the Applicant set out several grounds in the papers for the
rescission of the judgment, at the hearing of the application,
the
Applicant's argument was limited to the failure by the First
Respondent to comply with the requirements as set out
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012
(5) SA 142
(CC) insofar as the notices in terms of
Sections 129
and
130
of the
National Credit Act 34 of 2005
.
3.
The
Applicant has alleged that she did not receive the notices in terms
of
Section 129
and
130
of the relevant Act.
4.
The
Applicant submitted, with reference to
Silver
Falcon Trading 333 (Pty) Ltd v Nedbank Ltd
2012
(3) SA 371
(KZP) at 373F-375E, that the First Respondent's
particulars of claim were excipiable in that the First Respondent,
-vis-a-vis
Sections
129
and
130
aforesaid, failed to plead such facts held to be
necessary in
Sebola
and
consequently this failure founded the excipiability of the
particulars of claim for want of necessary averments on which to
found a cause of action. In
Silver
Falcon Trading
the court
specifically held that the mere averment that the provisions of
Section 129(1)
and
Section 130
had been complied with was not
sufficient.
5.
In
Sebola,
Cameron
J, summarised the requirements in respect of compliance with the
section 129
and
130
notices as follows:
"The creditor provider's summons or
particulars of claim should allege that the notice was delivered to
the relevant post office
and that the post office would, in the
normal course, have secured delivery of
a
registered item notification slip,
informing the consumer that
a
registered article was available for
collection, coupled with proof that the notice was delivered to the
correct post office, it
may reasonably be assumed in the absence of
contrary indication, and the credit provider may credibly aver, that
notification of
its arrival reached the consumer in that the
reasonable consumer would have ensured retrieval of the item from the
post office".
6.
It
is clear that the First Respondent's particulars have not complied
with this requirement in
Sebola
and
accordingly, if this had been brought to the attention of the
Registrar at the stage when default judgment had been requested,
the
judgment would not have been granted. I am accordingly satisfied
that, on this ground alone, the judgment ought to be rescinded.
7.
Counsel
for the Applicant submitted that costs of senior counsel should be
awarded to the Applicant. The usual order accompanying
a rescission
of judgment is that costs of the application are usually costs in the
cause. However counsel for the Applicant submitted
that the First
Respondent's opposition of the rescission application was
unreasonable because the First Respondent had known from
an early
stage what the Applicant's complaint was and this notwithstanding
proceeded with the opposition of the rescission application.
I am
inclined to agree, more particularly in that the action in respect of
which default judgment was taken was preceded by a pending
action and
later withdrawn only after the Applicant had raised the issue of /is
pendens
in
this application. Moreover, given the particular facts of this case.
I am of the view that the employment of senior counsel was
warranted
and the Taxing Master is guided accordingly.
8.
In
the premises I make the following order:
(a)
The
default judgment dated 5 June 2018 under case number 49439/2018 is
hereby rescinded;
(b)
The First Respondent is ordered to pay
the Applicant's costs.
G.T. AVVAKOUMIDES
JUDGE OF THE HIGH COURT
Representation
for Applicant:
Counsel:
Adv. CA
da Silva SC
Instructed
by:
Bopape MC Inc.
Representation
for First Respondent:
Counsel:
Adv. C
Welgemoed
Instructed
by:
Strauss Daly Attorneys
Representation
for Second Respondent:
Counsel:
No Appearance