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[2018] ZAGPPHC 248
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Chidi and Another v Absa Bank and Another (85460/16) [2018] ZAGPPHC 248 (12 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 85460/16
DATE:
12/01/2018
In
the matter between:
JULIA
MMALLEKE
CHIDI
1
st
Applicant
SIBUSISO
MOKWENA 2
nd
Applicant
And
ASSA
BANK 1
st
Respondent
SHERIFF
GROBLERSDAL
2
nd
Respondent
JUDGMENT
RANGATA
AJ:
INTRODUCTION
[1]
This is an application to rescind a default judgment granted against
the Applicant , Ms Julia Mmalleke Chidi on 06 October
2016. The
application is opposed.
[2]
The 1st Respondent (respondent) and the applicant entered into a
written instalment sale agreement on the 08 May 2012
, wherein
the respondent would sell to the applicant a motor
vehicle. The applicant chose her
domicillium citandi
at which
the delivery or service of legal documents would be served at stand
no 1 Mohlalaotwane, Garakgwadi. The return of service
of the summons
stated that the service was effected on 16 August 2016 "upon Ms
Linda R Mampane Constable at the chosen
domicillium citandi
et executandi
during the applicant 's temporary
absence ".
BACKGROUND
[3]
The applicant entered into a written instalment
agreement (the agreement) with the respondent. It is
common cause that the motor vehicle is as described in the
particulars of claim. In terms of the agreement the applicant was to
pay monthly instalment of R7 616. 95 for a period of 72 months to the
respondent. The applicant defaulted in her repayment obligations
in
terms of the agreement. As a result of
such failure to pay, the respondent commenced with the
legal
proceedings against the applicant by issuing a letter in
terms of section 129 of
the National Credit
Act and subsequently issued the summons.
[4]
The respondent instituted an action against
the applicant on the 5t
h August
2016 under case number 61297/16.
[5]
The applicant did not file its appearance to defend the action . The
respondent filed an application for default judgment which
was
granted on the 5th October 2016, cancelling the
agreement between the parties and ordering the applicant
to return
the motor vehicle to the respondent. A
wa_rrant of delivery of the
goods was
issued by the Registrar of the High Court authorising the
sheriff to take the motor vehicle
from the
domicillium
citandi
of the applicant.
[6]
The applicant avers that the default judgment be rescinded on the
basis that she has a bona defence to the main action. She
raised
points in limine
in support of the application for the
rescission of judgement as stated below:
6.1.
Defective summons and wrong sheriff return
(a)
The applicant averred that the summons was allocated a duplicate
case
number with another unrelated matter, i.e. 61297/2016. The
return of service contained a different case number, i.e.
61298/2016
. Further that the warrant of execution was issued under a
different case number, i.e. 61298/2016. The applicant averred that as
a result of a different and incorrect case number being used in the
documents stated above in the matter it took her sometime to
obtain
the correct file .
(b)
The applicant averred that the fact that the case number on the
summons
differs to the case number indicated on the default judgement
render the summons defective.
(c)
The respondent averred that it issued original summons under case
number
61298/2016. A copy thereof was served upon the applicant on
the 16 August 2016 by Sheriff, Nebo. The combined summons
served on the applicant is a copy and the original summons was
displayed to the recipient at the time of service. The
reason
for the discrepancy of the case numbers between the original and the
copy of the summons is not known to the respondent
and that it
is an administrative error made by the Registrar of the High
Court as the case number on the original and
on the
copy were written by the Registrar.
6.2.
Jurisdiction
The
applicant averred that she is residing in Limpopo , and that the
action should have been instituted out of Limpopo
High
Court. She contended that the High court, Gauteng division
does not have the jurisdiction to adjudicate
on the
matter as the applicant 's address is in Limpopo,
as such falls under the jurisdiction of the High
Court of South
Africa, Limpopo division.
6.3
. Non-compliance with
section 130
of the
National
Credit Act 34 of 2005
.
The
applicant averred that the respondent , upon issuing of the
section
129
letter which afforded the applicant a period of 15 days to
make a payment of the outstanding instalment and that
before the 15 days expired, the respondent proceeded to
issue Summons thereof. The respondent averred that although
the
summons was issued prior to the expiry of the 15 days as provided for
in the letter dated 19 July 2016 the service of the summons
however,
took place after the 15 days had expired.
THE
LAW
This
application is brought in accordance with
Rule 42(1)
which provides
that:
'
The court may, in addition to any other powers it may have mero motu
or upon the application of any party affected, rescind or
vary:
(a)
An
order or judgment erroneously sought or erroneously
granted
in
the
absence of
any
party affected
thereby
,
(b)
An
order or
Judgment in
which
there is
ambiguity
,
or
a
patent error or omission
,
but
only to the extent of such ambiguity
,
error or omission
;
(c)
An order or judgment granted
as
a result of a mistake
common to the
parties
'
.
[8]
An
applicant for the rescission of a default
judgment must show good cause, and
give a
reasonable explanation for the default.
The applicant must show that
there
is a bona fide defence to the Plaintiff's
claim
[1]
. In the
case of Grant v
Plumbers
(Pty)
Ltd
[2]
it was held
that,
"
when a defendant appears in court to have the judgment set aside he
must, in addition to explaining the failure to deliver
the
notice of intention to defend , he must place before the
court sufficient evidence from which it can be inferred
that there is
a bona fide defence".
[9]
'In order to establish a bona fide defence, the defendant must set
out averments which, if established, would entitle
him
to the relief asked for. It is
not
necessary
to deal with the merits of the case or produce
evidence that the probabilities are actually
in the
defendant 's favour
[3]
.Where no
sufficient reason is given for the failure to deliver notice to
defend on it appears that the defendant has no defence,
leave
to reopen will be refused. Where the applicant's
conduct in failing
to
enter appearance to defend had been both deliberate and intentional,
the court held that he was not entitled to a rescission
of
judgment obtained against
him'
[4]
.
[10]
In the case of Rossiter and others v Nedbank 96/2014 ZASCA para 16 it
was stated that:
"
The law governing an application for rescission under Uniform
Rule 42(1)
(
a)
is
trite
.
The
applicant must show that the default judgment or order had been
erroneously sought or granted
,
a court should
,
w
ithout more
,
grant th
e
or
d
er for resciss
i
on.
It
is
not
necessary
to sho
w
good cause under the
sub-
r
ule
.
Ge
n
erall
y
a judgmen
t
is
erroneously granted if there
e
x
isted at the time of its
issue
a fa
c
t
w
hi
c
h the court
was
unaware of,
which would have precluded the granting of the judgment and
which
w
ould have induced the Court
,
if
aware of
it
,
not to grant the judgment
.
There can be no doubt that if
t
he Reg
i
strar
had been made a
w
are of the proced
u
ral
defect
i
n
t
he
Rule 31
(
5
)(
a
)
notice defaul
t
judgmen
t w
ould not
ha
v
e been
g
r
a
n
t
ed
.
[11]
It is submitted by the appellant that the Gauteng Division of the
High Court does not have the jurisdiction. The High
Court enjoys
jurisdiction over all persons residing and all causes of action
arising within its area of jurisdiction
as
well as where the property in question is within the court's
area of jurisdiction . The High Court's jurisdiction is founded
on
the doctrine of effectiveness, which refers to the principle that a
claimant must sue out of the court which will
be
most effective in giving a judgment: that is, the court
which is best positioned to enforce the judgment.
[12]
It is further submitted by the applicant that the respondent failed
to comply with Section 130 of the National
Credit Act no
34 of 2005 (NCA), in obtaining a judgment against the applicant.
Section
130(1) of the NCA provides that:
(1)
'
Subject to subsection (2)
,
a
credit
provider
may approach the court for an order
to enforce a
credit agreement
only if, at that
time
,
the
consumer
is
in defaul
t
and
has
been in default under that credit agreement for
at least 20 business
days and-
at
least 10 business days have elapsed since the cred
it
pro
v
ider
deli
v
ered a notice to the consumer
as
contemplated
in
sect
i
on 86(10
)
,
or
sec
t
ion
129(1)
,
(a)
as
the
case
may
be
;
(b)
in the
case
of a notice contemplated in section 129(1),
the consumer has-
(i)
not responded to that notice ; or (ii)
ANALYSIS
[13]
The default Judgment against the applicant was
granted on the 6
th
October
2016,
after the summons was served on her colleague almost two months
prior thereto. The applicant conceded that she was given
the summons
by her colleague who received it in her absence. Not much is being
said as to what the applicant did after receiving
the summons to
avoid judgment being granted against her.
[14]
As stated in the case of Rossiter, supra, for the judgment to be
rescinded, it must have been granted erroneously and further
that if
at the time of granting such judgment there existed a fact which the
court was unaware of, of which would have precluded
the granting of
the judgment and which would have induced the court, if aware of it,
not to grant the judgment. In the case at
hand, there exists no fact
which if known to the court at the time of granting the
judgment, the court would not have
granted the judgment. Therefore,
the court finds that there is no bona fide defence to the respondent
's claim. The appellant has
not provided the basis for the
outstanding instalments and when it shall be paid. Therefore the
applicant has not shown good cause
why the judgment should be
rescinded.
[15]
It is submitted by the applicant that she is residing at
Mohlalaotwane, Ga Rakgwadi, Nebo, Limpopo, as such, the Limpopo
division of the High Court has jurisdiction to adjudicate on the
matter. The Respondent submitted that Gauteng division of the
High
Court had the jurisdiction to hear the matte r by virtue of the
sale agreement being signed in Pretoria as the
area where the
cause of action arose. It is stated in the case of Nedbank Ltd v
Geyser 2006 (4) 548(W) at 574B that,
"
The
words
'
causes of action
1
do
not refer to causes of action but to all factors giving
rise
to jurisdiction under common law and has found that a court
will
have jurisdiction if the facts show a sufficient
connection to the
court
'
s area
of
jurisdiction
"
The
sale agreement attached to the application was signed in Pretoria ,
being within the jurisdiction of the High Court, in the
Gauteng
division. It is therefore confirmed that the court had
the jurisdiction to preside over the matter as the cause
of action
arose within its jurisdiction .
[16]
It was submitted by the applicant that she was served with summons
under case number 61297/2016 and the judgment was
granted under
case number: 61298/2016 . The respondent submitted that the summons
which was served upon the applicant
contained the correct
details of the applicant as well as the subject matter of the
claim. The question becomes whether the
incorrect case number used,
be it on the summons or on the judgment, renders the summons
defective. The respondent instituted a
claim against applicant for
failure to honour the sale agreement. The applicant failed to
remedy the situation and wished
it away. It is my view, that the
incorrect case numbers indicated above cannot render the summons
defective. It is common cause
that the applicant received the
summons. I am therefore satisfied that the applicant was well
aware of the claim that she
needed to respond to and she failed to do
so.
[17]
The applicant submitted that the respondent failed to comply with
the provisions of section 130(1) of the Act,
in that it
indicated in its section 129 letter that the applicant had 15 days to
rectify the default and that the summons was issued
before the 15
days expired . The applicant view the action of the
respondent in issuing the summons before the
expiry of the 15
days provided in the section 129 letter as flawed and further
that it was done whilst the applicant still
had the right to exercise
her right as per the said notice. In its argument the
respondent submitted that although
the summons was issued
prior to the expiry of 15 days, which was 11 days after the section
129(1) letter was delivered, acknowledging
that the Act
makes provision for 10 days for the applicant to rectify the
default, the summons was only served upon
the applicant after the
expiry of the 15 days. As such it cannot be said that the respondent
did not comply with section 130(1)
of the Act.
[18]
Taking all the relevant facts at hand, the summons that shared a case
number with another unrelated matter, the incorrect case
number
contained on the judgment , the submission that the court does not
have the jurisdiction to hear the matter, and
the alleged
non-compliance with section 130(1) of the Act, I cannot find that the
applicant made its case to sustain that
there is a bona
fide defence to the main action to warrant the rescission
of the judgment. For the applicant
to succeed on the application for
the rescission of judgment, it must set out sufficient detail which
will enable the court to
conclude that there is a bona fide defence
to the action. The applicant must also show that there exist a fact
that if the court
was aware of at the time of granting the judgment,
it would not have granted such judgment, and this is not the case .
Disregarding
the administrative error in the case numbers, the
applicant cannot dispute that the summons that she was served with
contained
sufficient detail on the issue at hand and the basis for
the action instituted. No explanation is provided as to why the
applicant
did not defend the action.
[19]
In the case of Riddles v Standard bank of South Africa Ltd 2009(3) SA
463(T) at 466 para [a], Murphy J stated that:
[10]
". . .
the applicant must furnish
an
explanation
for his
default
sufficient
to
enable the court
to
understand how the
default came about
and
to
assess
whether
his conduct and motives are reasonable
.
The wilful or
negligent
nature
of
a
defendant
'
s
default
is
one
of
the
various considerations which
a
magistrate
is
obliged
to
take
into account
in the
exercise
of his
discretion
to determine whether or not
good
cause
is shown
"
[20]
The applicant failed to take the court into confidence by showing
that she has a bona fide defence. From
the time she
received the section 129 letter, to the time she was given the
summons by her colleague and further receiving
the judgement
and the warrant of execution, she has not indicated the steps taken
to remedy the
default.
The debt remains outstanding; as such the court does not have
sufficient grounds to grant the application,
[21]
In the result I give the following order,
(a)
The application for the rescission of
judgment
granted on the 5t h October
is dismissed with costs..
_________________
B
RANGATA
(ACTING
JUDGE OF THE HIGH COURT)
MATTER
HEARD ON
27 November 2017
ATTORNEYS
FOR THE APPLICANT
KGWADI NGWAKO
MATHABATHA
INC
ATTORNEY
FOR THE RESPONDENT
RW ATTORNEYS
[1]
Scholtz v Smith 1903 TH 313
[2]
1949(2) SA 470(0 )
[3]
Grant v plumbers (Pty) Ltd 1949(2)SA 470(O)
[4]
Maujean t/a Audio video agencies v Standard bank of SA
Ltd
1994 (3) SA 801(C)