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[2019] ZAFSHC 233
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Sithole v Firstrand Bank Limited t/a Wesbank (6576/2017) [2019] ZAFSHC 233 (3 December 2019)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No: 6576/2017
In the matter between:
PENENE
JACOB
STHOLE
Applicant
a
nd
FIRSTRAND
BANK LIMITED t/a
WESBANK
Respondent
Coram:
Opperman, J
Heard:
22 November
2019
Delivered:
3 December
2019
Judgment:
Opperman, J
Summary:
Application for leave to appeal –
application for rescission of default judgment dismissed
JUDGMENT
[1]
The matter
lies before me in terms of section 17(2)(a) of the Superior Court Act
10 of 2013.
[1]
Morobane, acting
judge at the time of the hearing of the case, is not available.
[2]
I pause to
note that the applicant has passed away in the meanwhile on 20 August
2019. Substitution was settled between the parties
and as to the
parties in terms of Rule 15
[2]
and confirmed by the court. The executor of the applicant’s
estate appointed in terms of section 18(3) of the Administration
of
Estates Act 66 of 1965 caused the continuation of the action.
[3]
The case revolves around an instalment sale agreement in terms of the
National Credit Act 34 of 2005
. In terms of the agreement the
applicant purchased a vehicle but fell in arrears with the
instalments. The total amount payable
at the time of the application
for default judgment was R534 980.70. Judgment was granted
against the applicant, the vehicle
removed and sold on auction. The
applicant applied for rescission of the default judgment.
[4]
On 22 February 2019 it was ruled that the application for rescission
of the default judgment: “…is out-of-time
and the
applicant should have applied for condonation for the late filing
thereof.” The presiding judge ordered that the
point
in
limine
succeeded, the application for rescission of the default
judgment was dismissed and the applicant to pay the costs.
[5]
The issue
in
limine
was
that the application was not filed within the period as prescribed in
rule 31(2)(b)
of the Rules.
[3]
The applicant did not, for that matter, file an application for
condonation. The applicant proceeded directly to the main application
for rescission.
[6]
The main argument on the condonation aspect is threefold; that the
applicant could not provide a reasonable explanation for
his default,
failed to disclose a
bona fide
defence and his case lacks
evidence that proposes a chance of success. The case for the
applicant also folded because of the mendacious
nature of his
evidence. In paragraph [11] the court found that:
Therefore,
I am of the view that the applicant’s version is mainly
disputed, unsatisfactory and falls short of the required
standard.
[7]
The undisputed facts are that:
1.
The applicant was in arrears at the time the order in terms of
Rule
31
was issued.
2.
Since the applicant became in arrears in April 2017 the respondent
had made numerous phone calls and send SMS text messages to
the
applicant to urge him to bring his arrears up to date. The applicant
was visited in person to ensure that he was aware of the
fact that he
is in arrears.
3.
Notice in terms of
section 129
of the
National Credit Act 34 of 2005
was served by way of registered post on 15 November 2017.
4.
That respondent issued summons on 14 December 2017. Service was
effected on the applicant personally by the sheriff on 9 January
2018.
5.
In a letter dated 24 January 2018 the applicant’s legal
representative had sent an electronic mail to the legal
representative
of the respondent wherein he inquired about the
arrears and the possibility to effect payment.
6.
On 28 February 2018 the respondent replied and accepted the offer
that the arrears as well as legal costs could be settled but
not over
the maximum term. The applicant was not able to bring the arrears up
to date and said arrears only escalated to the extent
that it became
clear that he would not be in a position to meet his responsibility.
(This fact is supported by the applicant’s
attorney’s
request to release of the vehicle against the payment by the
applicant of the amount of only R50 000. The
letter was dated 22
August 2018. The outstanding amount in arrears escalated to
R61 447.92. The second offer came after a
further notification
of the respondent that the vehicle can be released upon payment of
the entire outstanding balance that included
legal fees, recovery
charges and storage costs.)
7.
Default judgment was granted on 22 June 2018. A warrant for delivery
of the vehicle was also granted in due course.
8.
On 19 July 2018 the vehicle in issue was removed by the sheriff. It
appears from the return of service that there were various
attempts
made by the sheriff to obtain possession of the vehicle before the
actual removal. The sheriff for instance met with the
applicant’s
son at the taxi rank and the applicant’s son indicated to the
sheriff that he will ask the applicant to
contact the sheriff. The
sheriff also phoned the applicant’s son on three further
occasions to arrange for the collection
of the car.
9.
On 25 July 2018 the applicant deposited R24 000 with his legal
representative in order for his debt to be settled. The attorney
did
not comply and reimbursed the applicant. The reason therefor is not
clear.
10.
The vehicle was sold on auction on 25 September 2018 by the
respondent.
11.
Service of all material documents were proper and lawful.
12.
There was not an application for condonation before the court at any
stage. The hearing followed. Although the court
a quo
referred
to the issue of condonation as a point
in limine,
the merits
of the application was also argued and adjudicated. The court
a
quo
applied his mind to the facts and legal principles in
toto
.
[8]
The application for leave to appeal is
based on section 129 of the Credit Act 34 of 2005 read with the
matter of
Nomsa Ntaka v First Rand
Bank Limited
2016 (4) SA 257
(CC).
Section
129 of the NCA reads:
(3) Subject
to
subsection
(4)
,
a consumer may at any time before the credit provider has cancelled
the agreement, remedy a default in such credit agreement by
paying to
the credit provider all amounts that are overdue, together with the
credit provider’s prescribed default administration
charges and
reasonable costs of enforcing the agreement up to the time the
default was remedied.
[
Sub-s.
(3)
substituted by s. 32 (
a
) of Act
No. 19 of 2014.]
[9]
The applicant was never; on his own version able to a
t
any time before the credit provider has cancelled the agreement and
thereafter, remedy the default in the credit agreement by
paying to
the credit provider all amounts that are overdue, together with the
credit provider’s prescribed default administration
charges and
reasonable costs of enforcing the agreement up to the time the
default was remedied. This brings me to the adjudication
of an
application for leave to appeal.
[10]
The right to appeal, as managed by among others, the application for
leave to appeal, may not be abused but the hurdle of an
application
for leave to appeal may never become an obstacle to justice in the
post-constitutional era. The
Superior Courts Act 10 of 2013
regulates
the adjudication for leave to appeal specifically.
[11]
Historically the rule was: “In that reasonable prospects exists
that another Court, sitting as the Court of Appeal, would
come to
different findings and conclusions on the facts and the law.”
It is now being worded differently in The
Superior Courts Act 10 of
2013
per
section 17(1)(a)(i)
promulgated on 22 August 2013 to read:
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16
(2) (a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.
[12]
In
Shinga v The State & Another
(Society of Advocates
(Pietermaritzburg Bar) intervening as Amicus Curiae)
;
S v
O’Connell & Others
2007 (2) SACR 28
(CC) at [53], it
was summarised that:
Applications
for leave to appeal is a judicial task of some delicacy and
expertise. This task requires a careful analysis of both
the facts
and the law that provided the basis for the judgement. Presiding
officers should approach the question whether another
court may reach
a different conclusion with “intellectual humility and
integrity, neither over-zealously endorsing the ineluctable
correctness of the decision that has been reached, nor overanxiously
referring decisions that are indubitably correct to an appellate
Court.
[13]
In
S v Smith
2012 (1) SACR 567
(SCA) at [7] the court laid
down the approach to an application for leave as follows:
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.
[14]
There cannot be a difference in “that it must be proven that
reasonable prospects exist that another Court, sitting as
the Court
of Appeal, would come to different findings” and “the
appeal would have a reasonable prospect of success.”
Both refer
to “success” and a “prospect” and it is what
it is. It is semantic and the weight of the onus
has not been raised.
It has been codified and the codification to be interpreted to mean
that a sound, rational basis for a conclusion
that there are
prospects for success on appeal must be shown. This has always
been the rule and the word “would”
simply confirm that it
must be proven and it remains a prospect to be evaluated on a sound
basis; nothing more and nothing less.
[15]
Section 17(1)(a)(i)
did not push the threshold higher as was
suggested after
Notshokovu v S
(157/15)
[2016] ZASCA 112
(7
September 2016). It is only in regard to the context of special leave
that the test is more stringent.
[16]
After pondering the matter on the premise that there must be a sound,
rational basis for the conclusion that there are prospects
of success
on appeal I am convinced that an appeal on fact and law will fail.
[17]
ORDER
The
application for leave to appeal is dismissed with costs
______________________________
M
OPPERMAN, J
Appearances
For
applicant: ADV N.D. KHOKHO
Chambers
Bloemfontein
Instructed
by: MELATO ATTORNEYS
Sasolburg
c/o
Maree & Partners
Bloemfontein
Ref:
JJMAREE/rk/JS1112
For
respondents: ADV W.J. GROENEWALD
Chambers
Bloemfontein
Instructed
by: Symington & De Kok Incorporated
Bloemfontein
Ref:
O van Tonder/ja/6692379
[1]
“Leave to appeal may be granted by the judge or judges against
whose decision an appeal is to be made or, if not readily
available,
by any other judge or judges of the same court or Division.”
[2]
Rule 15(3)
“
Whenever a party
to any proceedings dies or ceases to be capable of acting as such,
his executor, curator, trustee or similar
legal representative, may
by notice to all other parties and to the registrar intimate that he
desires in his capacity as such
thereby to be substituted for such
party, and unless the court otherwise orders, he shall thereafter
for all purposes be deemed
to have been so substituted.”
[3]
“
A
defendant may within 20 days after acquiring knowledge of such
judgment apply to court upon 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 it deems fit.”