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[2018] ZAGPJHC 561
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Serekwane and Another v Absa Bank Limited and Another (2013/35928) [2018] ZAGPJHC 561 (10 October 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
CASE
NO. 2013/35928
10
Oct 2018
In
the matter between:
DANIEL
SEREKWANE
First
Applicant
JESSIE
THANDI
SEREKWANE
Second
Applicant
and
ABSA
BANK
LIMITED
First
Respondent
SHERIFF,
ROODEPOORT
SOUTH
Second
Respondent
JUDGMENT
REDMAN
AJ
[1]
The
applicants seek a rescission of the judgment granted against them by
default on 24 March 2014 in terms of which they were ordered
to make
payment of the amount of R330 368,05 and the immovable property
described as Erf […] Mmesi Park Township, registration
division I.Q., Gauteng Province, ("
the
property
")
was declared executable. The applicants also seek to set aside
the Order declaring the immovable property executable
and the warrant
of execution issued pursuant to the default judgment. The
application is brought in terms of Rule 42(1)(a)
of the Uniform Rules
of Court.
[2]
In
September 2013, the first respondent initiated action proceedings
against the applicant based on two mortgage loan agreements
concluded
between the first respondent and the applicants during 2006 and
2007. Copies of the two loan agreements were not
attached to
the summons. It is explained in the summons that despite a
diligent search the original agreements could not
be found and the
best available evidence of the terms and conditions contained in the
agreements are those recorded in a standard
agreement of loan which
was used on a regular basis by the first respondent. A
copy of this document was attached to
the summons.
[3]
Further
evidence that the loan agreements were concluded can be found in the
two mortgage bonds registered over the property in
2006 and 2007.
Both of these mortgage bonds were also attached to the summons.
The summons alleges that the applicants
were in arrears on the
payment of the loans and that the amount of R330 368,05 was due
and payable.
[4]
On
receipt of the summons the applicants attended on the first
respondent's attorneys and made arrangements to settle their
indebtedness
in monthly instalments of R5 300,00. They
defaulted in payment of the monthly instalments as a result of which
the first
respondent sought and obtained default judgment on 24 March
2014. On 27 February 2015, the property was sold in execution.
The property was transferred to the purchaser on 28 May 2015.
[5]
On 24
May 2015, the applicants brought an application for rescission of the
default judgment. This application was withdrawn
on 15
September 2016. The applicants took no further steps in the
litigation until December 2017 when the current rescission
application was issued.
[6]
The
sole basis upon which the applicants seek to rescind the judgment is
based on their contention that the summons is excipiable
as it
disclosed no cause of action. In a nutshell, the applicants
contend that because the written loan agreements could
not be
provided to the Court no cause of action could be sustained
[7]
The
provisions of Rule 42(1) are designed to expeditiously correct
obviously wrong judgments or orders (cf.
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992
(2) SA 466
(E) at 471E-F). The need to expedite an
application under Rule 42(1) has been emphasised by the Courts.
Eloff
JP, in
First
National Bank of SA Ltd v Van Rensburg N.O. and Others
1994 (1) SA 677
(T) at 681C-D described the position as follows:
"Even if it can be
said that the Order granted by Coetzee CJ was erroneously sought or
contains a patent error, the application
should in my view have been
dismissed by reason of the long time lapse. As mentioned
previously, the appellant's attorney
uplifted the order on
approximately 10 September 1988. The application in casu
was launched on 18 November 1991, more
than three years later.
Rule 42(1) was designed, as was said in
Bakoven Ltd v GJ
Howes (Pty) Ltd
1992 (2) SA 466
(E), 'to correct expeditiously an
obviously wrong judgment or order.
The need to proceed
rapidly to correct an order mistakenly granted was mentioned by
Trollip JA in
Firestone South Africa (Pty) Ltd v Genticuro
AG
1977 (4) SA 298
(A) at 306H."
[8]
In
the rescission application, the applicants do not disclose when they
became aware of the default judgment. The first application
for
rescission was brought in May 2015. There is no explanation for
the delay of two-and-a-half years until December 2017
when the
current application was initiated.
[9]
I am
not persuaded that the failure to attach the written loan agreements
to the summons renders the "summons" excipiable.
The
claim is for a debt or a liquidated amount and the summons accords
with Form 9 of the first schedule to the Rules of Court.
Such summons
is not a pleading and is not subject to scrutiny under Rule 23.
(cf.
Icebreakers
No. 83 (Pty) Ltd v Medicross Healthcare Group (Pty) Ltd
2011 (5) SA 130
(KZD) at 131F-H and 134E-G) The failure
to attach the written documentation is explained in the summons. I do
not believe
such failure renders the default judgment susceptible to
a rescission on the basis that it constitutes an irregularity.
[10]
It is
also incompetent for the applicants to seek to set aside a warrant of
execution which has already been carried out, without
joining the
current owner of the property (being the purchaser at the sale in
execution) to these proceedings).
[11]
Even
if I am incorrect and the provisions of Rule 42(1) are applicable, I
am not satisfied that the applicants have brought the
application
within a reasonable time and on this basis alone the application
falls to be dismissed with costs.
[12]
The
loan agreements include a provision for costs to be paid on a
scale as between attorney and client.
[13]
In
the circumstances I make an order in the following terms:
1.
The
application for rescission of judgment is dismissed
2.
The
applicants are to pay the costs of the application, jointly and
severally the one paying the other to be absolved on the scale
as
between attorney and client.
_________________________
N
REDMAN
Acting
Judge of the High Court
Heard:
___ October 2018
Judgment
delivered: ___ October 2018
Appearances:
For
Applicant/Plaintiff: IN PERSON
Attorneys:
IN PERSON
For
Respondent/ Defendant: ADV VAN DER VYVER
Attorneys