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[2018] ZAGPPHC 109
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Zondo and Another v Nedbank Limited (82048/2016) [2018] ZAGPPHC 109 (5 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
Case
No. 82048/2016
5/3/2018
In
the matter between:
ZONDO,
ELIAS
MAENUFIKKE
FIRST APPLICANT
ZONDO,
NTHABISENG
SECOND APPLICANT
And
NEDBANK
LIMITED
FIRST RESPONDENT
JUDGMENT
MILLAR
AJ
1.
This
is an application for the rescission of a judgment granted by default
on 13 December. 2016 in favour of the respondent/plaintiff
against
the applicants/defendants.
2.
The
applicants appeared in person and were assisted by a sworn
interpreter of this court, Mr. M Mogaladi. Both applicants were given
the opportunity to address the court. They brought the application
for the rescission of the default judgment on 27 June 2017,
having
become aware of the default judgment and impending sale of their
property on 19 April 2017.
3.
I
heard the application and granted the order that appears at paragraph
10 below and indicated that my written reasons would follow.
4.
The
applicants raised a number issues:
4.1.1
Firstly,
that the summons was not properly served or at all,
4.1.2
Secondly
that they were not alerted to the impending legal action by the
respondent; and;
4.1.3
Thirdly
that had they been aware of the action, they would have advised the
respondent of a change in their circumstances and attempted
to
negotiate.
5.
The
test to' be applied in applications of this nature is one which:
"
..involves three
essential elements: the applicant must (1) give
a
reasonable
(and obviously acceptable) explanation for his default; (2) show that
his application is made bona fide; and (3) show
that on the merits he
has
a
bona fide defense which prima facie carries some
prospects of success"
see
Naidoo v Mattala NO
2012
(1) SA 143
(GSJ) at 152 H-1.
6.
The
applicants contended that they brought the application as soon as
they were able to. They had relied on a relative who was a
law
student and were not aware that there was any time limitation. They
denied that the person upon whom the sheriff had served
the summons
was their daughter and they stated that she had been a lodger on
their property in whose room they had subsequently
found the summons.
That the summons had been served at their premises is accordingly not
in doubt. There is at best for the applicant's
a doubt about when it
was brought to their attention.
7.
The
applicants did not even attempt to set out a defence to the claim of
the respondent. The high watermark of their case in this
regard was
that their business had been hijacked and that they had needed time
to resolve this. This is simply not a defence in
law to the claim of
the respondent.
8.
Even
If I accept that the applicants meet the first leg of the test, for
the reasons set out above I find that they have not met
the other two
legs and in the circumstances their application must fail.
9.
It
bears mentioning that when the matter was called, the applicants
indicated that they were unable to proceed in English and required
the services of an interpreter. No state interpreter was available.
Since the applicants were unable to afford the services of
the
interpreter, the respondent agreed to pay those costs subject to
reimbursement. I am indebted to the respondent's attorney
and counsel
in this regard as their assistance facilitated the hearing of the
matter.
10.
In
the circumstances, I make the following order:
10.1 The
application for rescission of the judgment granted on 14 July 2015 is
dismissed with costs on the
scale as between party and party which
costs are to include the costs of the interpreter Mr. M Mogaladi.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
5 MARCH 2018
JUDGMENT
DELIVERED ON:
5 MARCH 2018
FOR
THE APPLICANTS:
IN PERSON
COUNSEL
FOR THE RESPONDENT: ADV AP ELLIS
INSTRUCTED
BY:
BEZUIDENHOUT VANZYL & ASSOCIATES INC.
REFERENCE
:
G VAN DER MERWE