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[2017] ZAGPPHC 97
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Cooper v Standard Bank of South Africa Limited (370/2016) [2017] ZAGPPHC 97 (27 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 370/2016
DATE:
370/2016
In
the matter between:
CRISTAL
MARTIE LYNETT
COOPER
APPLICANT
and
STANDARD
BANK OF SOUTH AFRICA
LIMITED
RESPONDENT
J
U D G M E N T
COLLIS
AJ:
INTRODUCTION
[1]
In the present application the Applicant seeks an order for the
rescission of a default judgment taken against her on 3 February
2016. The application is brought in terms of the provision of Uniform
Rule 31(2) (b) and was opposed by the Respondent.
[2]
At the commencement of the proceedings, the Applicant applied for a
postponement of the application in order to file a Replying
affidavit, Heads of Argument and Practice note. The application for
a postponement was opposed by
the Respondent on the
basis that notice of the enrolment of the application took
place as far back as 9 September 2016
and that only on 8 March
2017, being the eve of the hearing did the Applicant approach the
Respondent to have the matter postponed.
[3]
Furthermore as at date when the application was made, counsel for the
Respondent had already been briefed on the matter and
as such the
Respondent could not agree to a postponement.
[4]
In view of the fact that the request for a postponement was not
properly motivated, the court in exercising its discretion refused
the application for a postponement.
BACKGROUND
[5]
On or about 5 July 2012 the parties entered into a written instalment
sale agreement in terms whereof the Respondent sold and
delivered to
the Applicant a 2010 Kia Soul Polo 1.6 MT motor vehicle with engine
number G4FCAH475745 and chassis number KNAJT811
LA7168851.
[6]
In terms of the agreement the total amount payable by the Applicant
to the Respondent was an amount of R 229 914.00 of which
the first
instalment was payable on 31 August 2012 and thereafter 71 monthly
instalments of R 3193.25 was to be made on each successive
month with
the final instalment of R 3193.25 to be made on 31 July 2018.
[7]
The agreement further provided that at all material times the
Respondent would remain the owner of the motor vehicle until the
applicant had paid all amounts due under the agreement and in the
event of the Applicant failing to comply with any of the terms
and
conditions provided for in the agreement, or failing to pay any
amount due under the agreement, the Respondent would be entitled,
at
its election and without prejudice to obtain an order for the return
of the motor vehicle; to retain all payments already made
in terms of
the agreement; and to claim as liquidated damages if necessary any
shortfall due to it in terms of the agreement.
[8]
In breach of the agreement, the Applicant failed to make due and
punctual payments of the monthly instalments payable in terms
of the
agreement. As at 31 October 2015, the Applicant was in arrears in the
amount of R 121 838.07.
UNIFORM
RULE 31(2)(b)
[9]
Rule 31(2) (b) provides as follows:
"A
defendant
may
within
twenty
(20)
days
after
he
or
she
has
knowledge
of
such judgment apply
to
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 to it seems meet.
"
[10]
An Applicant in order to meet the requirements for an application for
rescission of judgment under Rule 31(2) (b) must
show the
following:
(a)
He (the Applicant) must give a reasonable explanation of his default.
If it appears his default was wilful
or that it was due to gross
negligence the Court should not come to his assistance;
(b)
His application must be bona fide and not made merely with the
intention to delay the Plaintiff's
claim;
(c)
He
must
show
that
he
has
a
bona
fide
defence
to
the
Plaintiff's
claim.
It
is
sufficient if he makes out a prima facie defence in the sense of
setting out averments which,
if
established
at
trial,
would
entitle
him
to the
relief
he
asked
for.
[1]
He
need
not
deal fully with the merits of the case and produce evidence that the
probabilities
are
actually
in his
favour.
[11]
A court must therefore in this application for rescission decide
whether 'sufficient cause' has been shown to rescind the judgment.
In
Chetty v Law Society Transvaal
1985 (2) SA 756
(A) the requirements
of this concept were considered by Miller JA and stated as follows at
756A-C:
'The
term
sufficient cause
(or good cause) defies precise or
comprehension definition, for many and various factors require to be
considered. But it is clear
that in principle and in the long
standing practice of our Courts two essential elements of 'sufficient
cause' for rescission of
judgment by default are:
(i)
that the party seeking relief must present a
reasonable
and
acceptable explanation for his
default;
and
(ii)
that on the merits such party has a
bona
fide
defence
which
prima
facie,
carries some prospect of s
uccess.'
[12]
I will proceed to deal succinctly with the requirements as mentioned
above.
ABSENCE
OF WILFULNESS
[13]
The
wilful
or
negligent
nature
of
the
defendant's
default
is
one
of
the
considerations
which
the
court
takes
into
account
in
the exercise
of
its
discretion
to
determine whether
or
not good cause
is
shown.
[2]
It then follows
that
the
reasons
for
the
Applicants'
absence
or
default
must
therefore
be
set
out,
this
is
because
it
is
relevant to the question whether or not, his or her default was
wilful.
In
Silber v Ozen Wholesalers (Pty) Ltd
[3]
it
was
held
that
the
explanation
for
the
default
must
be
sufficiently
full
to
enable
the
court
to
understand
how
it
came
about
and
to
assess
the Applicant's conduct and motives.
[14]
Before a person can therefore be said to be in wilful
default, the following elements must be shown:
(a)
knowledge that the action is being brought against him or her;
(b)
a deliberate refraining from entering an appearance, though free to
do so; and
(c)
a certain mental attitude towards the consequence of default.
[15]
In
her
Founding
affidavit
[4]
the
Applicant
sets
out
that
she
had
failed
to
file
a
notice
of intention to defend the summons,
as
she did not receive the summons
and
if she did she would
have
defended
the
proceedings.
Albeit
that
the
summons
was
served
at
218
Erasmus
Street
Meyerspark,
she
no
longer
resided
at
this
address
and had in
fact
changed the said address with the Respondent.
[5]
[16]
In her founding
affidavit,
the Applicant
does
not deny that the address of service of the summons was
indeed
her chosen
domicilium
et
executandi
address
as
per the agreement.
[6]
Her
affidavit is also silent as to when as she contends the change of her
address was brought to the attention of the Respondent
and whether
such change of her address was
indeed
made in writing
as
is required in terms
of
clause 23.3 of the Instalment
sale
agreement.
[7]
[17]
Furthermore, her application is in addition thereto, not supported by
a confirmatory affidavit, deposed to by her husband,
confirming that
he on her behalf had attended at the bank in order to change her
domicilium
address.
[18]
As to the absence of wilfulness on her part, the Applicant also
contends that she never received the section 129 notice, as
same was
sent to her
chosen
domicilium
as per the
agreement, which she had not been residing at since 7 December 2015.
[19]
Given the totality of what has been expounded herein above, in the
absence of a sufficiently full explanation to explain her
default,
this Court is not placed in a position to assess the absence of
wilfulness on her part and as a consequence, I cannot
find that the
first requirement of absence of wilfulness on her part has been met.
BONA
FIDE DEFENCE
[20]
In
essence
the
defence
raised
by
the Applicant
appears
in
paragraph
7
and
9
of
the founding
affidavit.
Therein
the
Applicant
sets
out
that
she
disputes
that
her
account had
fallen
into
arrears
and
that
for
some
or
other
unknown reason
to
her,
she
could
not
explain
as
to
why
the
debit
order
signed
in
favour
of
the
Respondent
was
not
processed
properly.
Immediately
when
the
arrear
status
of
her
account
was
brought
to
her
attention,
she
embarked
on
her
own
investigation and informed
the
officials of
the
Respondent
that
she
disagreed
with
their
calculations
of
the
arrear
amount
due
by
her.
She
nevertheless
made
two
separate
payments
of
R
10
000
and
R
3500
respectively
in
order
to
avoid
unnecessary
legal
action
being
taken
against
her.
[8]
[21]
In
rebuttal
to
the
evidence
tendered
by
the
Applicant
as
set
out
above,
the
Respondent
in
opposition
sets
out
that during
the
period
31
December
2012
to
31
March
2015,
nine
(9)
debit
orders
had
been
returned
to
the
Respondent
due
to
insufficient
funds
held
in her account
and
even though
certain
cash
payments
were made
by
her,
these
payments
were
insufficient
to
bring
her
account
up
to
date.
[9]
Since
January 2016, no further payments had been received from her.
[10]
[22]
Clause 18.1 of the terms and conditions of the instalment sale
agreement defines default to be as follows:
"18.1.
Default in terms of this Agreement will occur if;
18.1.2.
you fail to pay any amount payable
to us in terms of this
Agreement
on the due date;"
[23]
It is worth mentioning that the signature of the Applicant appears on
the instalment sale agreement as well as on every page
of the terms
and conditions. Further that it is common cause between the parties
that this was the agreement concluded between
them.
[24]
In terms of the instalment sale agreement, payments had to be made by
the Applicant at the end of each succeeding month,
(
being
the
due
date)
and what
is evident from annexure "STD3" to the answering affidavit,
irregular payments were made by her for the months
of May, September,
October, November and December 2015.
[25]
As no replying affidavit had been filed to this application, no
evidence in this regard in rebuttal had been presented by the
Applicant and as such the evidence of the Respondent in this regard
remains uncontested.
[26]
As a consequence I cannot but conclude that, as regards the merits,
the applicant has no bona fide defence which prima facie
carries some
prospect of success.
[27]
In the result I make the following order:
27.1
The application is dismissed with costs on an Attorney and Client
scale.
____________________
C.
J. COLLIS
ACTING
JUDGE GAUTENG DIVISION PRETORIA
APPEARANCES:
FOR
APPLICANT:
ADV. F LAMPRECHT
INSTRUCTED
BY:
L.P.BAARDMAN ATIORNEYS
FOR
RESPONDENT: ADV. P OOSTHUIZEN
INSTRUCTED
BY:
S.ROUX INCORPORATED
DATE
OF HEARING: 13 MARCH 2017
DATE
OF JUDGMENT: 27 MARCH 2017
[1]
Grant v Plumbers ( Pty) Ltd
1949 (2) SA 470
(0)
[2]
Harris v Absa Bank Ltd t/a Volkskas 2006 (
4) SA 527
(T) at
5308-531B
[3]
1954 (2)
SA
345
(A)
at 353A
[4]
Founding Affidavit paragraphs 5 to 9
[5]
Founding Affidavit
paragraphs
13,16, 31 and 32.
[6]
See Annexure A to the summons, clause 23.1
[7]
Annexure A to the summons: Clause 23.3
"Until
all Repayments due to us have been received and this Agreement
has been terminated you must inform us
in writing
within 1O(ten) Business days after the change of any change to:
23.3.1.
your residential or business address; and
23.3.4
your notice address, postal address, telefax number or email
address."
[8]
Founding Affidavit
paragraphs
11 and 12 respectively
[9]
Answering Affidavit paragraphs 6 and 8 respectively
[10]
Answering Affidavit paragraph 10.2