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[2018] ZAGPPHC 726
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Kekana v Changing Tides 17 (Proprietary) Limited N.O (77025/2009) [2018] ZAGPPHC 726 (23 February 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 77025/2009
23/2/2018
Not
reportable
Not
of interest to other judges
In
the matter between:
KATHLEEN
MAPULA
KEKANA
Applicant
and
CHANGING
TIDES 17 (PROPRIETARY) LIMITED
N.O.
Respondent
JUDGMENT
PETERSEN AJ:
Introduction
[1]
This is an application for rescission,
enrolled by the respondent, after the applicant failed to file a
replying affidavit. At issue
is an order granted by default by
Jordaan Jon 9 January 2017 for the sum of R484 822.68 with interest
thereon at the rate of 10.80%
per annum from 1 September 2016 to date
of payment; together with an order declaring the property, being Erf
6821 Atteridgeville
Township, Registration Division J.R., Gauteng
Province, in extent 569 (Five Hundred and Sixty Nine) Square Metres,
held by Deed
of Transfer T77662/2011, specially executable.
[2]
The application for rescission was
brought on the 7 July 2017, six (6) months after the granting of
default judgment. The applicant
states in her founding affidavit as
one of the grounds for rescission that she first learnt of the
judgment against her during
March 2017 when she received a telephone
call from her friend informing her that the said property has been
advertised in the Government
Gazette for sale in execution. The
return of service from the Sheriff of the Court, however, indicates
that the Writ of Attachment
was served on the applicant personally at
her place of residence on 8 February 2017 at 1Oh54. This casts
serious doubt on the credibility
of the applicant. No condonation has
been sought by the applicant for the late filing of the application.
The applicant has failed
to comply with rule 31(2)(b) of the Uniform
Rules of Court.
[1]
Point
in limine
[3]
The property was sold in execution on 16
May 2017 by the Sheriff of the Court to Monosi Ingrid Mapeleng ("Ms
Mapeleng").
The respondent raises a
point
in limine
that the property having
been sold on 16 May 2017, the purchaser Ms Mapeleng and the Sheriff
of the High Court have a direct and
substantial interest in the
matter and should have been joined to the proceedings. The respondent
accordingly seeks a dismissal
of the application as a result of the
non-joinder. The relief sought by the respondent in this regard is
fully justified. On this
basis alone the application stands to be
dismissed. However, I consider it appropriate that the grounds for
rescission raised by
the applicant be considered , to bring finality
to the matter.
The
grounds for rescission
[4]
The applicant relies on the following
grounds in support of the application for rescission:
(1) the
affidavit deposed to in the default judgment by a certain Alricka
Jeneveve Philander constitutes hearsay evidence in that
the deponent
cannot testify to the applicants' relationship with the respondent
which exceeds eight (8) years.
[2]
(2)
the applicant never received the section 129 notice;
[3]
(3) the
respondent has securitized the bond and therefore lacks the necessary
locus
standi
to
foreclose on the property;
[4]
(4)
the applicant never attended the respondents' place of business to
sign or complete any documents to assess affordability and
as such no
pre-assessment of affordability was done by the respondent
constituting reckless credit in terms of
section 80(1)(a)
of the
National Credit Act 34 of 2005
.
[5]
The application for rescission,
premised on the grounds relied upon, is essentially sought in terms
of Uniform
Rule 42(1)(a)
and (b), which provides that:
"42(1)
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 an ambiguity, or a patent error
or omission, but only to the extent of such ambiguity , error
or
omission; ..."
[6]
In
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) Jones AJA held as follows at paragraphs 5 and 6:
'5 It is
against this common-law background, which imparts finality to
judgments in the interests of certainty, that
Rule 42
was introduced.
The Rule caters for mistake. Rescission or variation does not follow
automatically upon proof of a mistake. The
Rule gives the Courts a
discretion to order it, which must be exercised judicially...
6
Not every mistake or irregularity may be corrected in terms of the
Rule... Because it is a Rule of Court its ambit is entirely
procedural.'
The first ground
[7]
The applicant contends that the
affidavit utilized in seeking default judgment was deposed to by a
certain Alricka Jeneve Philander.
It is not clear from the papers
where and under which circumstances the applicant came on the
aforementioned name, as the affidavit
relied on in the application
for default judgment was in fact deposed to by a certain Fatima Adam.
This ground for rescission is
therefore fatally flawed.
The second ground
[8]
The applicant contends that the
respondent did not comply with the provisions of
section 129
as
nothing more than an inference is made regarding the delivery of the
section 129
notice. The decision in
Kubyana
v Standard Bank of South Africa Ltd
2014 (3) SA 56
(CC) at parc:1graph 54 is apposite in respect of
section 129
notices:
'54 The
Act prescribes obligations that credit providers must discharge in
order to bring s129 notices to the attention of consumers.
When
delivery occurs through the postal service, proof that these
obligations have been discharged entails proof that -
(a)
the
s129 notice was sent via registered mail and was sent to the correct
branch of the Post Office, in accordance with the postal
address
nominated by the consumer. This may be deduced from a track and trace
report and the terms of the relevant credit agreement;
(b)
the
Post Office issued a notification to the consumer that a registered
item was available for her collection;
(c)
the
Post Office's notification reached the consumer. This may be inferred
from the fact that the Post Office sent the notification
to the
consumer's correct postal address, which inference may be rebutted by
an indication to the contrary as set out in [52] above;
and
(d)
a
reasonable consumer would have collected the s129 notice and engaged
with its contents. This may be inferred if the credit provider
has
proven
(a)
-
(c),
which
inference may, again, be rebutted by a contrary indication: an
explanation of why, in the circumstances, the notice would
not have
come to the attention of a reasonable consumer.'
[9]
In the present application the bank has
discharged its obligations set out in section 129. It is common cause
that the applicant
resided at 11 Shilote Street, Atteridgeville. The
section 129 notice was sent to the said address on 13 September 2016
via registered
mail, with a first notification for collection being
issued by the correct Post Office on 15 September 2016, according to
the track
and trace report. There is no evidence to rebut this. It
can therefore safely be inferred that the notice came to the
attention
of the applicant, notwithstanding her averment that she had
not personally received such notice. The applicant concedes that she
is indebted to the respondent albeit that she denies that she owes
any of the amounts claimed.
[5]
She could reasonably only be aware of this state of affairs through
the section 129 notice sent to her by the respondent via registered
mail.
The third ground
[10]
The applicant fails to substantiate the bald allegation with
documentary proof. The respondents'
bond documents which were brought
to the attention of the applicant as an annexure to the particulars
of claim is a true copy of
the original with no indication of same
having been ceded or endorsed in favour of a different entity.
The fourth ground
[11]
The applicant as an alternative to the
merits of her defence alleges that she had not attended the
respondent's place of business
to sign or complete any documents to
assess affordability and therefore denies that the respondent did a
proper and adequate enquiry
into the applicant's ability to service
and repay the debt. The applicant further denies that the respondent
took any steps to
assess her understanding of the risks and costs of
the proposed credit and her rights and obligations under a proposed
credit agreement.
The respondent through annexures to its answering
affidavit disproves all these allegations by the applicant. The said
annexures
include the application form for the home loan, an income
and expenditure statement compiled by the applicant, an asset and
liability
statement completed by the applicant, bank statements
supplied by the applicant in respect of her bank account held at ABSA
and
an acceptance letter addressed to the applicant.
Conclusion
[12]
The applicant has not shown that the
judgment was erroneously sought or erroneously granted or that it
contains any ambiguity, patent
error or omission as required by
uniform rule 42(1)(a) and (b). In respect of costs, I do not propose
to mulch the applicant with
a further punitive cost order. I have
considered the fact that the applicant is a lay person who has
clearly been misled by an
institution referred to as Legal Smart,
purporting to be her attorneys of record whilst making no appearance
in this court. It
is further clear that the applicant has been misled
to depose to an affidavit making no reference to their involvement in
the drafting
of the affidavit and portraying the affidavit to have
been drafted on advice provided to her by "friends", which
she
tested against research on the internet and general research by
herself. The applicant herself states that she is a layman, with
no
legal qualification. The very purport of the drafting of the founding
affidavit speaks to the involvement of a person or persons
who are
legally qualified.
Order
[13]
In the result the application for
rescission of judgment is dismissed with costs.
AH PETERSEN
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
Appearances:
For
the Applicant: No appearance
For
the Respondent: Adv. P.I. Oosthuizen
Instructed
by: Velile Tinto and Associates
Date
heard: 19 February 2018
Date
of judgment: 23 February 2018
[1]
Rule 31(2)(b): "A defendant may within 20 days after he has
knowledge of such judgment apply to the 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
seems meet."
[2]
Paras 7.1 to 7.3 of the Founding Affidavit
[3]
Para 7.6 and 10 of the Founding Affidavit
[4]
Para 8 of the Founding Affidavit
[5]
Para 10 of the Founding Affidavit