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[2019] ZAECELLC 12
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Nedbank Limited v Goosen Marketing CC and Another (EL1044/2018) [2019] ZAECELLC 12 (2 April 2019)
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
(EASTERN CAPE LOCAL
DIVISION, EAST LONDON)
Case
No: EL1044/2018
In
the matter between:
NEDBANK
LIMITED Plaintiff
/ Respondent
And
GOOSEN
MARKETING CC
First
Defendant / Applicant
GIDEON
JOUBERT GOOSEN
Second Defendant /
Respondent
JUDGMENT
BESHE
J:
[1]
This is an application in terms of
Rule
31 (2) (b)
for the setting aside of a default judgment granted
against the applicant (second defendant in the main action).
[2]
Plaintiff issued summons against applicant
and his co-defendant for payment of a sum of R962 992.
64,
interest and costs of suit. The claim against the second defendant so
it was alleged, was due by reason of a suretyship entered
into by the
second defendant.
[3]
There having been no declaration of
intention to defend by both defendants, plaintiff applied for default
judgment. Same was granted on the 26 September 2018 against both
defendants jointly and severally the one paying the other to be
absolved.
[4]
It is that judgment that second defendant
seeks to have rescinded on the basis mainly that: No default
judgment
was granted against his identity number – as the particulars of
claim in this matter were issued against a different
number. He did
not bind himself to an unlimited suretyship.
[5]
The merits of the application are opposed by
the plaintiff. Plaintiff also raised a number of points
in limine
.
[6]
Second defendant is not legally represented
in the proceedings, he is conducting his case in person.
[7]
One of the points
in limine
taken is
that the application was served one day late and second defendant has
not sought condonation in this regard. Secondly,
that the notice of
motion does not substantially comply with
Form 2 (a)
. The
third point
in limine
is that part of second defendant’s
prayer is that the judgment “not be granted against first and
second defendants
jointly and severally”. Yet notice of these
proceedings was not given to the first defendant. (Non joinder)
[8]
In my view, granted that the second
defendant is not legally qualified (according to him), I am of
the
view that there has been substantial compliance with the rules that
apply to applications. First defendant is a CC - second
defendant
claims to represent the first defendant.
[9]
It is trite that in order for an application in terms of
Section
32 (2) (b)
for rescission to succeed, the following must be shown
by the applicant:
(a) absence of
wilfulness.
(b) reasonable
explanation for the default.
(c) that the application
is
bona fide
made and not made with the intention to delay
plaintiff’s claim.
(d) that the applicant
has a
bona fide
defence.
[10]
It is common cause that the defendants did not file an appearance to
oppose the action and plea timeously.
This is admitted by the second
defendant in paragraph 32 of his affidavit in support of the
rescission application. However no
attempts is made to explain the
default. That is the delay in entering an appearance to defend and
plea. In the absence of an explanation
for the default and any
suggestion of absence of wilfulness, I am unable to find that that
appellant has succeeded in showing that
the existence of first two
requirements.
[11]
Does he have a
bona fide
defence? Second
defendant does not deny that he stood as surety and co-principal
debtor for moneys that may be due by the first
defendant to the
plaintiff. He suggests that the said suretyship was not unlimited.
But essentially that the identity number appearing
on the suretyship
signed on the 13 July 2011 is not that of the second defendant.
Incidentally, the surety agreement signed by
the second defendant
with Identity Number 00… is for an “UNLIMITED” sum
of money and is a continuing cover.
This is apparent from the words
for the repayment of all amounts which the principal debtor may now
or anytime hereinafter owe
plaintiff. Second defendant does not deny
that the signature appearing thereon is his. His defence is that no
judgment was granted
against his identity number. I fail to
understand this reasoning. Judgment was sought against two
defendants, one of whom is the
applicant in this matter, judgment was
granted against both defendants. No judgment was granted against an
identity number. This
defence is seriously unconvincing and is not
good in law. Accordingly, it does not amount to a
bona fide
defence.
[12]
The applicant has not made out a case for the rescission
of the judgment granted against him, jointly and severally
with the
first defendant in the main action.
[13] In the
result, the application is dismissed with costs.
_____________
NG BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff / Respondent
: Adv:
TS
Miller
Instructed
by
: BATE
CHUBB & DICKSON INC.
Suite
3 – Norvia House
34
Western Avenue
Vincent
EAST LONDON
Ref:
Mr KJ Chambers/leone/N301
Tel.:
043 – 701 4500
For
the 1
st
and 2
nd
Defendant/Applicant : Mr GJ
Goosen
Instructed
by
: 2
ND
DEFENDANT/APPLICANT IN PERSON
C/o
Gerhard Stoltz Debt Counsellors
Unit
2, Vancott House
16
– 17 Devereux Avenue
Vincent
EAST LONDON
Ref:
Mr GJ Goosen
Tel.:
043 – 726 0403
Date
Heard
: 21 February
2019
Date
Reserved
: 21
February 2019
Date
Delivered
: 2
April
2019