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[2017] ZAFSHC 177
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Mlanjana Trading CC and Others v Nedbank Limited; In re: Nedbank Limited v Mlanjana Trading CC and Others (49/2017) [2017] ZAFSHC 177 (28 September 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
49/2017
In
the application between:
MLAJANA
TRADING
CC
1
st
Applicant
(Registration
number 2009/217692/23)
MPHO
MARIANNA
THUTHAN
I
2
nd
Applicant
(Identity
number [...])
THEMBANI
JONAS
THUTHANI
3
rd
Applicant
(Identity
number [...])
and
NEDBANK
LIMITED (of which MFC
is a
division)
Respondent
In
re:
In
the matter between:
NEDBANK
LIMITED (of
which MFC is a
division)
Plaintiff
and
MLAJANA
TRADING
CC
1
st
Defendant
(Registration
number 2009/217692/23)
MPHO
MARIANNA
THUTHANI
2
nd
Defendant
(Identity
number [...])
THEMBANI
JONAS THUTHANI
3
rd
Defendant
(Identity
number [...])
JUDGMENT
BY:
C REINDERS, J
DELIVERED
ON:
28 SEPTEMBER 2017
[1]
This is an application for the rescission of default judgment granted
by the Registrar of this court. The first applicant is
Mlajana
Trading CC ("the CC"), a close corporation with chosen
domicilium citandi et executandi
at 6 De Waal Road,
Ehrlich Park, Bloemfontein ("the
domicilium").
The
second and third applicants are the married couple Mrs Mpho Marianna
Thuthani ("Mrs Thuthani") and Mr Thembani Jonas
Thuthani
("Mr Thuthani") respectively, residing in Durban, Kwazulu
Natal. The application is opposed by the respondent,
Nedbank (Pty)
Ltd who conducts business as The Motor Finance Corporation (Pty) Ltd
( "the MFG").
[2]
It is common cause that the CC purchased a Ford Ranger motor vehicle
("the vehicle") from MFG in terms of a written
agreement
("the agreement") on 18 November 2013. At all times
relevant the Thuthani's were the only members of the CC
and stood
surety for its obligations under the agreement. Due to the failure of
the CC to make punctual payments in terms of the
agreement, MFC
cancelled the agreement and sued for return
of the vehicle and liquidated damages. On the
7
th
February
2017 judgment by default
was
granted against the applicants for
inter alia
confirmation of
cancellation of the agreement and return of the vehicle.
The MFC hereafter obtained a warrant for attachment
and delivery of
the goods which the sheriff served personally on Mr Thuthani on 18
February 2017 at the chosen
domicilium
address. The sheriff
was refused access to the premises and the applicants (more in
particular the third applicant) refused to hand
over of the vehicle
despite the intervention of the South African Police Services. On 16
March 2017 this application was launched.
[3]
It is trite law that, in order to succeed in an application for
rescission of a judgment, an applicant must show good cause
for th9
setting aside of same. This would entail at least the following:
3.1
Applicant must give a reasonable explanation of his default. If it
appears that his default
was wilful or that it was due to gross
negligence the Court should not come to his assistance;
3.2
The application must be
bona fide
and not made with the
intention of merely delaying plaintiff's claim;
3.3
Applicant must show that he has a
bona fide
defence to
plaintiff's claim. It is sufficient if a
bona fide
defence is
made out in the sense of setting out averments which, if established
at the trial, would entitle him to the relief asked
for.
See:
Grant v Plumbers (Pty)Ltd 1949 (2) SA
470
(O) at 476-7
See
also:
Colyn v Tiger Food Industries Ltd t/a
Meadow
Feeds Mills (Cape)
2003 (6)
SA
1
(SCA)
at para [11]
[4]
The explanation for the delay in opposing the action is set out in
the founding affidavit by Mr Thuthani. Althought the summons
was
served at the chosen
domicilium
of the applicants by affixing
a copy thereof to the main entrance of the property, the CC no longer
conducts business from the said
address. The Thuthani's also do not
live there anymore. As a result hereof the summons only came to the
applicants' attention on
16 January 2017 when his father-in-law
sent it to him via e-mail.
[5]
The applicants aver that they have a
bona fide
defence on the
merits. The better the chances of success on the merits, the less I
should concern myself with the absence of a good
explanation for the
delay.
[6]
The upshot of the defence that applicants wish to rely upon is to be
found in the notices in terms of Sec 129 of the National
Credit Act
34 of 2005 ("the NCA") that was sent to the
domicilium
address of the applicants and, so the argument goes, they did not
receive the notices due to their absence at the said address. They
only became aware of the mechanisms afforded to them by the NCA upon
perusal of the summons (with the Sec 129 notices annexed thereto).
Had they received the said notices, they would have made use of these
mechanisms.
[7]
The essential question to be answered is accordingly if the NCA finds
any applicability to the agreement
in casu.
Under the heading
"Application
of Act" Sec 4 deals extensively with the applicability of credit
agreements under the NCA and spells out
precisely when the Act does
not apply by identifying exemptions. Sec 4 (1)(b) exempts a "large
agreement" where "the
consumer is a juristic person whose
asset value or annual turnover is below the threshold value
determined by the Minister''. It
is common cause that the CC is a
juristic person and the principle debt in terms of the agreement far
exceeded the threshold for
a large credit agreement.
[8]
Mr Els on behalf of applicants argued that the applicants should be
afforded the rights in terms of the Sec 129 notices which
MFC chose
to grant the applicants by annexing these notices to the summons. Mr
Van Aswegen appearing for MFC however submitted
that the fact
that MFC elected to send notices in terms of Sec 129 to the
applicants does not advance the defence of the
applicants as the
provisions of the NCA applies
ex lege.
I agree with Mr Van
Aswegen. As was articulated by Satchwell J in
F
ir
st
Rand Bank (a division of Firstrand Bank Ltd) v Kaydeez
Therapies CC (in liquidation) and Others
2013 (6) SA 308
(GSJ)
at para [15] with reference to a statute:
"It
obtains its force by reason of the will and decision of the
legislature, not because individuals or entities elect to be
subject
thereto."
[9]
According to the applicants, the effect of not receiving the Sec 129
notices was that they were deprived of
an
opportunity to resolve the dispute or to bring their payments
up to date. In view thereof that the NCA is not applicable
the
defences and resolution methods available under the NCA is simply not
applicable herein and therefore the applicants make out
no defence.
[10]
Having reached the conclusion that the applicant has no
bona fide
defence it follows that applicant has not shown good cause. After
all, if the applicant has no defence, it would not serve any purpose
to rescind the judgment granted by the Registrar.
[11]
Although applicants aver that attempts were made to settle the arrear
payments due to the MFC, it is not in issue that the
CC was in breach
of the agreement by virtue of its failure to make punctual payments.
As such the MFC was and still is entitled
to cancellation of the
agreement and reposession of the vehicle. The CC indicates that it is
willing to pay the arrears and all
related costs involved. However,
it is not in dispute that the CC still enjoys the usage of the
vehicle, makes no payments and
refuses to hand over the vehicle to
the MFC in terms of an order of this court. If it is true that MFC is
not prepared to accept
payment it is at best regrettable as far as I
am concerned. However, I cannot force MFC to accept payment herein
and the decision
to cancel is that of MFC. They chose to cancel as
they were legally entitled to do in particular in view of my finding
that the
NCA is not applicable.
See
in general:
Nkata v Firstrand Bank Limited and Others
2016 (4)
SA 257
(CC)
[12]
For the reasons above the application cannot succeed and I make the
following order:
The
application is dismissed with costs.
__________________
C.
REINDERS, J
On
behalf of the applicants:
Adv. J.H.
Els
Instructed by:
H.F. Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
W.A.
van Aswegen
Instructed by:
McIntyre Van der Post
BLOEMFONTEIN