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[2018] ZAGPPHC 70
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Henry v Firstrand Bank Limited (86762/2016) [2018] ZAGPPHC 70 (1 March 2018)
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
CASE
NO: 86762/2016
1/3/2018
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
ROGER IAN
HENRY
Applicant
and
FIRSTRAND BANK
LIMITED
Respondent
JUDGMENT
MIA,AJ
[1]
The applicant seeks an order setting aside the judgment granted in
the above matter on 9 March 2017. Mr Joynt appearing for
the
applicant submitted that the application for condonation, the late
filing of the answering affidavit was not opposed as it
was in the
interest of justice that the matter be fully ventilated. The only
issue before this court was the issue of rescission
of judgment
granted by default before Mabuse J.
[2]
The respondent had issued summons in the above Honourable Court on 4
November 2016 claiming the sum of R103 089.32 arrears on
the
applicant's bond account alleging that the account was outstanding
for a period of 17.10 months. The respondent claimed the
full balance
outstanding in the sum of R538 809.05 together with interest thereon
at the rate of 8.65% per annum calculated and
capitalized monthly in
advance from 29 October 2016. The respondent brought an application
for default judgment and the issue of
service was queried and
subsequently default judgment was granted in the absence of the
applicant.
[3]
Mr Joynt appearing for the applicant submits that there was no proper
service in terms of the rules of this court. The affidavit
of Mr
Mazibuko explains how service was effected in this regard. The first
affidavit
[1]
of Mr Mazibuko explained: "There was a notice on the door saying
that the offices were closed for the festive season and I
left a copy
under the door." Mr Mazibuko returned to the offices again on
the 4th of January 2017 and left a copy under the
door again. In
paragraph 5 of his affidavit he says "I accordingly brought the
Application for Summary Judgment back to the
office and informed the
attorney on record of my findings."
[4]
In his second confirmatory affidavit Mr Mazibuko apparently clarifies
his first affidavit. The affidavit does not appear to
be a
clarification but explains that he in fact left the affidavit in the
post box on the wall of the building under number 74.
The two
versions are completely contradictory to each other. The second
version does not serve to clarify the first. In fact Mr
Mazibuko's
first version is strange in that if he left the application under the
door on the first occasion why was it necessary
to return on the
second occasion to slip a second copy under the door. If indeed he
left a copy under the door how is it possible
for him then to bring
the application for summary judgment back to the office as he stated
in paragraph 5 of his affidavit on page
70 of the record.
[5]
Having regard to the internal inconsistency in the first version as
well as the inconsistency between the first and second affidavit
I am
not satisfied that there was proper service. In view of the lack of
proper service it is possible that the matter would not
have come to
the applicant's attention resulting in the judgment being granted by
default.
ORDER
[6]
For the above reasons I make the following order:
1. The default judgment granted
against the applicant on 9 March 2017 is set aside.
2. The defendant is ordered to file a
plea within fifteen days of the grant of this order.
3. The respondent is ordered to pay
the cost of this application
_______________________
S
C MIA
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG,
PRETORIA
Appearances:
On
behalf of the applicant
: Mr G Joynt
Instructed
by
: Gavin Joynt Attorneys, Pretoria
On
behalf of the respondent
: Adv J Minnaar
Instructed
by
: Hammond Pole Majola Inc c/o Oltmans Attorneys
Date
of hearing
: 1 March 2018
Date
of judgment
: 1 March 2018
[1]
Founding Affidavit, Annexure, "A" page 69 to 71