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[2016] ZAGPPHC 4
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Guideppe v Nedbank Ltd (28016/2014) [2016] ZAGPPHC 4 (15 January 2016)
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
15/01/2016
CASE
NUMBER: 28016/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SPINAZZE
RUGGGERO
GUIDEPPE APPLICANT
And
NEDBANK
LIMITED RESPONDENT
JUDGMENT
MAVUNDLA
J
[1]
The applicant seeks an order in terms of which a judgment granted by
default in favour of the respondent in this Court on 29
September
2014 is rescinded with a cost order against the respondent.
[2]
The application is brought in terms of rule 42(1) {a) or rule 31( 2)
{b) of the Uniform Court rules. It was contended on behalf
of the
applicant that the order was erroneously sought or erroneously
granted and or that there is good cause for the rescission
of the
judgment, given that it was in the absence of the applicant.
[3]
The claim against the applicant was set out in a simple summons and
the cause of action is based upon a suretyship given by
the applicant
in favour of the respondent on 29 November 2004 in terms of which the
applicant bound and obliged himself as surety
and co-principal debtor
for the repayment of all or any sum of money owing to the respondent
by Quality Sleep (Pty) Ltd, a company
which subsequently changed its
name to Renegade Bedding (Pty) Ltd.
[4]
Renegade was placed into final liquidation on the 8 November 2011.
The respondent alleged that as at 27 January 2014, Renegade
remained
indebted to it in the amount of R80 996, 02. It supported its
allegation by attaching a certificate of balance to its
summons,
signed by Jacques Pienaar, Senior Manager: Specialist Legal
Recoveries at the respondent, which certificate specified
the
indebtedness of Renegade to be "in respect of an overdrawn
current account". The respondent in its answering affidavit
confirmed that the monies alleged to be due to it arose
from an overdraft facility from which "the
principal
debtor could draw... whether the account was in credit or
otherwise".
[5]
It is not in dispute that the applicant's liability to the respondent
arises from a suretyship he signed in favour
of the
respondent on 29 November 2004 in terms of which the applicant bound
and obliged himself as surety and co-principal debtor
for the
repayment of all or any sum of money owing to the respondent by
Quality Sleep (Pty) Ltd, a company which subsequently changed
its
name to Renegade Bedding (Pty) Ltd.
[6]
The applicant contended in his papers that he was not in will default
because he was not served with the summons nor a notice
in terms of
s129 because he had relocated from the initial chosen
domicile
citandi et executandi
address [...] K... Drive,
Linksfield Ridge Johannesburg. The summons was served at the
aforesaid address by affixing to the
principal door on the 15 April
2014, according to the sheriff's return, after he had relocated.
[7]
The respondent in its summons, alleged,
inter alia,
that it
complied with the provisions of the
National Credit Act 34 of
2005
in that on 12 February 2014 it caused a notice in terms of
section 129(1)(A)
, read with
section 123
to be despatched to the
defendant. The notice was delivered to the receiving post office of
the chosen address of the applicant,
which post office, by delivery
of a registered item notification slip, duly informed the defendant
that the notice was available
for collection. The relevant address
was the chosen domicile address […] K… Drive,
Linskfield Ridge Johannesburg.
[8]
The applicant averred in its papers that he neither received
the summons nor the notice in terms of
s129
, because he had
relocated to […] L… Lane, Melrose North, Johannesburg.
He further averred that he had informed the
respondent of his current
address during about November 2005. In this regard he attached a copy
of a note titled
"To Whom It
May Concern"
[1]
, stating
inter
alia:
"As
discussed with you, I have sold my house at […] K…
drive, Links field and have moved to […] L…
Lane,
Melrose North.
I would appreciate it if
the bank statements for Renegade Bedding and all correspondence with
regards to myself (sic) or Renegade
Bedding will be forwarded to […]
L… Lane, Melrose North."
[9]
The applicant further attached a copy of a letter dated 19 September
2011, from the respondent's attorneys Smit Joness &
Pratt
[2]
. This letter although addressed to the applicant, "to be
collected", does not reflect
any
address, as such it is of no assistance
in proving that the respondent knew of the changed
address of the
applicant. However, the copy of letter dated 9 September 2011 from
the respondent's other attorneys, Brooks Luyt
lnc
[3]
was addressed to the applicant at the new address. The applicant
further attached a copy of a letter from Nedbank addressed to
the
applicant at the new address, dated 28 September 2011
[4]
.
In my view, it is clear that the applicant brought to the attention
of the respondent his new address and therefore the
s129
letter
should have been served at the current address; Vide
Sebola
v Standard Bank.
[5]
I am therefore not satisfied that
s129
was complied with.
[10]
It was submitted on behalf of the applicant that the respondent has
prematurely issued the summons, without complying with
the NCA, in
that both the
s129
and the summons were served at the previous chosen
domicile address, after it had been brought to its attention of the
new address.
The registrar, who issued the order, erroneously did so,
without being aware of the changed address and the noncompliance with
sl29 of the NCA. In my view, there is merit in this contention made
on behalf of the applicant. The error, arises from the very
fact that
had the registrar been aware of the fact that the services was
effected at an address, which the applicant has already
abandoned,
and the court process was not likely to come to his attention, the
registrar would not have issued the order by default,
as such the
judgment was erroneously granted. In this regard my view is fortified
by what was held in
Lodhi
2 Properties Investments CC v Bondev Developments.
[6]
[11]
There is merit in the submission made on behalf of the applicant that
under
rule 42(1)(a)
, the applicant need not show good or sufficient
cause to succeed with an application for rescission; relying on the
matter of
Topal
and Others v L S Group Management Services (Pty) Ltd
[7]
and
National
Pride Trading 452 (Pty) Ltd v Media 24
Ltd.
[8]
[12]
In so far as further submissions were made on behalf of the
respondent, it is instructive to point out that in
Topal
matter
the Court further held that once it was found that the matter fell to
be decided under
rule 42{1)(a)
, it was not necessary to decide
further submissions for or against the grant of the rescission;
vide
Topal
matter
supra at
6518-C. In the premises I deem it
not necessary to deal with the submissions regarding
rule 31(2)(b)
,
which seemingly was the respondent's main point in resisting the
rescission application. By so saying it does not mean that the
respondent's submissions in that regard were unassailable.
[13]
In the result the following order is made
1. That the judgment
granted against the applicant in favour of the respondent under case
number 2014 / 28016 by this Court on the
29 September 2014 is hereby
rescinded;
2. That the respondent is
ordered to pay the costs of the opposition of the application.
_______________
N.,M
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 02/12 /2015
DATE
OF JUDGMENT: 15
I
01/2016
APPLICANTS'
ADV: ADV J. GROENEWALD
INSTRUCTED
BY: RAYMOND C. KOSVINER ATIORNEYS
SECOND
RESPONDENTS' ADV: ADV B.R. EDWARDS
INSTRUCTED
BY: DRSM ATTORNEYS
[1]
Annexure RGS2 paginated page 12.
[2]
Annexure RGS3 paginated page 13.
[3]
Annexure RGS4 paginated page 14.
[4]
Annexure RGS5 paginated page 15.
[5]
2012 (5) SA 142
{CC} at para [45] et [64]
[6]
2007 (6) SA 87
(SCA) at 92A-B et 94C-D.
[7]
1988 (1) SA 639
(WLD) at 6500-J.
[8]
2010 (6) 587 (ECP) at 5971-598B.