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[2016] ZAGPPHC 9
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Mncube v Standard Bank of South Africa and Others, In re: Standard Bank of South Africa v Mncube (37866/2014) [2016] ZAGPPHC 9 (21 January 2016)
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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
(GAUTENG
DIVISION, PRETORIA)
Case
No:
37866/2014
On
21
January 2016
Before:
The Honourable Holland-Müter AJ
In the
matter between:
THEMBA
JAMES
MNCUBE Applicant
(ID:
[…])
and
STANDARD
BANK OF SOUTH
AFRICA 1
st
Respondent
MARJA
MAPONYA 2
nd
Respondent
THE
REGISTRAR OF DEEDS,
JOHANNESBURG 3
rd
Respondent
THE
SHERJFF,
TEMBISA 4
th
Respondent
In re:
STANDARD
BANK OF SOUTH
AFRICA Plaintiff
and
THEMBA
JAMES
MNCUBE Defendant
JUDGMENT
[1]
This is an application for rescission of a default judgment granted
by this court on 20 August 2014 as well as setting aside
the sale in
execution subsequently held on 3 December 2014. Only the 1st
respondent opposed the application.
[2] The
2nd respondent, the purchaser of the immovable property in question
on 3 December 2014, did not oppose the application although
the
application was served upon her personally on 9 February 2015. See
return of service on p 110.
[3] In
the heads of arguments on behalf of the applicant, in par 2 it is
averred that no relief is sought against the 3rd and 4th
respondents.
[4] The
issues to be decided as argued on behalf of the applicant are:
4.1.Whether the 1st respondent's answering affidavit was
delivered out of time and be disregarded by the court ( par 5 of the
heads
of argument );
4.2.Whether the default judgment granted on 20 August
2014 was erroneously sought or granted as contemplated in Rule 42(l
)(a) of
the Uniform Rules of Court;
4.3.In the alternative, whether the default judgment
should be rescinded in terms of the provisions of Rule 31(2)(b) or in
terms
of the common law; and
4.4.Whether the sale in execution of 3 December 2014
should be set aside?
[5] The
applicant however nowhere deals with the aspect of the late filing of
the replying affidavit, the filing thereof almost
two months after
the answering affidavit was filed. I am of the opinion that all the
affidavits ought be accepted to enable myself
to finalize the matter.
It will serve no purpose to disregard the answering affidavit,
leaving the replying affidavit in the air.
[6] Of
more importance is the late bringing of the application for
rescission of the default judgment. The applicant on his own
version
became aware of the judgment on 17 September 2014, the application
only served on the 1st respondent on 2 February 2015,
far outside the
20 days as required by Rule 31(2)(b). This is more than 4 months
after 17 September 2014 when the applicant became
aware of the
judgment. See par 13 & 14 of the founding affidavit on p 23.
[7] On
17 October 2014, one month after obtaining knowledge of the default
judgment, the applicant 'directed ' a hand written letter
to the 1st
respondent. In this letter the applicant indicates that he has made
alterations towards the property and that he was
renting four rooms
to tenants to derive an income. Of importance is that nowhere in this
letter did the applicant inform the 1
st
respondent that
his domicilium address has changed.
[8]
Despite receiving a rental income for the afore going two years, no
explanation is given why this income was not used to service
the bond
account, nor is any viable proposition made how to pay the existing
arrears.
[9] The
explanation by the applicant in par 14 & 15 of the founding
affidavit is with respect very vague. In par 9 of the founding
affidavit the applicant explains that he contacted a certain Ronel
Raath at the 1st respondent's attorney of record who informed
him to
submit a written proposal to be forwarded to the 1st respondent. This
was only done on 1 December 2014. No explanation is
given why this
was not done earlier. More than a month expired before the applicant
reacted.
[10]
This lack of immediate reaction by the applicant is clearly what he
was doing all along the process. Only after being informed
that his
proposal was rejected on 1 December 2014 does he consult with his
present attorney, on 8 December 2014. On 11 December
2014 Venter
Attorneys in writing informed the 1st respondent's attorneys that
they are representing the applicant. See TM 7(1)
on p 89. The
application was only drafted on 2 February 2015 as indicated on p 4
of the application. The applicant tries to explain
this delay in his
par 9.18 as a lack of a deposit to Venter Attorneys. No confirmatory
affidavit from Venter Attorneys' office
in annexed to verify this
allegation.
[11]
The whole process on behalf of the applicant after receiving notice
of the default judgment on 17 September 2014 is riddled
with delays
with no proper explanation for the delays. This must impact on the
question to rescind the judgment in view of any
proper bona fide
defence.
[12] In
view of the applicant's failure to bring this application within 20
days of being notified of the judgment, I fail to see
any reason why
the applicant now wants this court to disregard the answering
affidavit being out of time, but condone his lack
of acting timeously
in bringing the application and thereafter filing his replying
affidavit well out of time. The court has to
apply the same measures
to all the parties in the matter and cannot be more lenient towards
the applicant. The argument on behalf
of the applicant to disregard
the answering affidavit is rejected.
[13]
The next question is whether the default judgment granted on 20
August 2014 was erroneously granted. The main contention by
the
applicant in this regard is that he was not informed by the 1st
respondent of the intended action and that the provisions of
Section
120 of the National Credit Act were not complied with.
[14] It
is clear that a notice in terms of section 129 was dispatched to the
applicant by the 1st respondent. See annexure "C"
on p 72.
The only issue is whether the address of the applicant is the correct
address in terms of the loan agreement between the
parties.
[15]
There is no proof by the applicant that he changed his chosen
domicilium address as required by the provisions of clause 14.4
of
the agreement between the parties. See p 70. The letter by the
applicant referred to above cannot be seen as compliance with
clause
14.4.
[16]
The account statement as referred to on p 83 ( annexure "TM-4")
likewise is not proof of change of address. In clause
2.6 of the
agreement ( on p 67 ), it is clear that this address is the street
address of the subject property of the agreement.
This is not the
chosen domicilium address for service of notices etc.
[17]
The section 129 notice was therefore delivered at the correct
address as held in
Sebo/a v Standard Bank
2012 (5) SA 145
CC- "Par
87- Where the credit provider posts the notice, proof of registered
dispatch to the address of the consumer, together
with proof that the
notice reached the appropriate
post office for delivery to the
consumer, will in the absence of contrary indication constitute proof
of delivery
".
[18]
The applicant did not collect the registered letter at the
appropriate post office. In
Kubyana v Standard Bank of South
Africa Ltd
2014 (3) SA 56
CC
it was held that it is sufficient to
bring the section 129 notice to the attention of the consumer for the
consumer agreed to receive
notice by registered post. The applicant
did not provide an explanation why he did not respond to the notice
from the post office.
This led to the practice that credit provider's
attorneys now file affidavits attaching the "track-and-trace"
reports.
See the affidavit by Belinda Brauns on p 30, the
track-and-trace report on p 75.
[19]
There is therefore no merit in the argument on behalf of the
applicant that there was non-compliance with section 129. There
was
service of the summons at the chosen domicilium address the judgment
was therefore not erroneously granted in the absence of
the
applicant.
[20]
The next question to be answered is whether the judgment can be
rescinded in terms of Rule 31(2)(b) or in terms of the common
law.
[21]
Rule 31(2)(b) requires an applicant to, within 20 days from having
notice of the judgment, to apply for the rescission. From
above it is
clear that the applicant is well beyond the 20 day requirement with
no sufficient explanation for his failure to bring
the application in
time.
[22]
The applicant in my view does not show good cause for his default. He
fails to show why he is in default, without any proof
annexed to
verify his averment that he was wounded during 2010. He does not
explain why he did not use the rental income to make
payments on the
account, not that he approached the 1st respondent to reschedule his
repayments after the incident. On his own
version he is in arrear
with the account. He fails to show any bona fide defence against the
claim. See
Erasmus, Superior Court Practice, Bl-201.
His
application for rescission in terms of Rule 3 1(2)(b) cannot be
successful.
[23] In
Silber v Ozen Wholesalers (Pty)Ltd
1954 (2) SA 345
A at 352
it was held that good cause includes the existence of a
substantial defence. The applicant did not succeed to prove the
existence
of any defence, he admits being in arrears, there is no
issue fit for trial. See Erasmus supra, Bl-204.
[24]
The last issue is whether the sale in execution should be set aside.
The test to apply whether a property can be declared specially
executable was formulated in
Firstrand Bank Ltd v Folscher and
Another
2011 (4) SA 314
GNP.
The applicant was informed of his
constitutional rights and of the provisions of Rule 46( l)(s)(ii) in
the summons.
[25]
The applicant now avers that the property is his and his families
prime residence. He however did not annex any confirmatory
affidavits
from his wife to verify his marital status. Although he resides in at
the property, he rents portions of the property
to derive income,
income not utilized to pay any amounts of the outstanding
account/debt. He earns a salary (without disclosing
the amount ), is
far in arrear ( more than 20 months ) and the prejudice suffered by
the 1st respondent far outweighs that of the
applicant. Under the
circumstances I am of the view that the sale in execution should not
be set aside.
[26]
I am not inclined to grant the application and the following order is
made: The application is dismissed with costs, the costs
to be on an
attorney and client scale.
______________________
HOLLAND-MÜTER
AJ
______________________
BY
ORDER OF COURT
REGISTRAR
Date
heard: 18 November 2015
Appearances:
Applicant's
Counsel: Adv CA Boonzaaier.
1st
Respondent's Counsel: Adv CGVO Sevenster.