About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2016
>>
[2016] ZAECMHC 21
|
|
Sitole v Absa Bank Limited (02/2016) [2016] ZAECMHC 21 (10 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 02/2016
DATE:
10 MAY 2016
In
the matter between:
NQABAKAZI
SITOLE
Vs
ABSA
BANK LIMITED
APPEAL
JUDGMENT
BROOKS
AJ
[1]
The appellant is an adult female insurance broker who gives her
address in the affidavits to which she has deposed in this matter
as
“Zimbane Administrative Area, Mthatha.” The
respondent is a public company with limited liability duly registered
as a bank and credit provider in accordance with the laws of the
Republic of South Africa
.
[2]
The appeal is directed against a judgment of the magistrate’s
court for the district of Mthatha given on 13 October 2015
and in
which an application brought by the appellant for the rescission of a
judgment granted against her by default on 16 September
2014 was
dismissed by the additional magistrate with costs. It is
apparent from the judgment in the court
a quo
that an
accompanying application for the setting aside of a warrant of
execution was also dismissed with costs.
[3]
The application for rescission of the judgment in the court
a
quo
was opposed. The answering
affidavit was deposed to by the risk mitigation manager employed by
the respondent and who had
all the documentation and electronic
records pertaining to the contractual relationship between the
appellant and the respondent
in his possession and under his control.
[4]
In terms of provisions of Rule 49 (1) of the Magistrate’s Court
Rules of Court the appellant was required to make her
application for
rescission within twenty days of gaining knowledge of the existence
of the judgment taken against her by default.
In assessing
whether or not she complied with this rule, the allegations made by
her in the founding affidavit are unhelpful.
All she states is
that she became aware of the existence of the judgment “only in
/about 2015”. (
sic)
The founding affidavit was deposed to on 12 March 2015 and the notice
of application issued is dated 16 February 2015.
Inasmuch as
the application was served on the respondent’s attorneys on 17
March 2015, it is assumed that the notice of application
was
incorrectly dated and that it was in fact issued on 16 March 2015,
thereby commencing the application proceedings on that date.
[5]
Some assistance in this regard may be gleaned from the respondent’s
answering affidavit which refers to, and annexes,
a copy of an
electronic mail print out which shows that on 11 February 2015 the
appellant’s attorney addressed a letter to
the respondent’s
attorney setting out a proposal for the settlement by the appellant
of the indebtedness to the respondent.
Whilst in all
probability the ability of the appellant’s attorney to address
such a letter on 11 February 2015 indicates
that the appellant knew
of the existence of the judgment earlier than that date and was able
to give the matter thought and give
instructions to her attorney
accordingly, I am prepared for present purposes to assume, in the
absence of any better information
from the appellant, that on 11
February 2015 she came to know of the judgment. The effect of
the provisions of Rule 49 (1)
of the Magistrate’s Court Rules
of Court is that the appellant ought to have launched her application
for rescission of the
judgment on or before 2 March 2015. The
application papers disclose no reason for her failure to do so.
Nor was any
application for condonation placed before the magistrate
in respect of this failure. On this ground alone the
application
for rescission of the judgment could have been
dismissed. At best for the appellant, her failure to comply
with the provisions
of Rule 49 (1) of the Magistrates’ Court
Rules of Court is a factor which affects the assessment of her
bona
fides
in bringing the application for rescission.
[1]
[6] In an
application of this nature it is incumbent upon an applicant to place
evidence before the court which demonstrates the
following:
1. He or she must
give a reasonable explanation for his or her default; if the default
is wilful or due to gross negligence, the
court should not come to
his or her assistance;
2. The application
must be
bona fide
and not made with the intention of merely
delaying the plaintiff’s claim;
3.
The applicant must show that he or she has a
bona
fide
defence. It is sufficient if he or she makes out a
prima
facie
defence
which does not deal fully with the merits or produce evidence that
the probabilities favour the applicant.
[2]
[7]
In amplification of the first requirement of an application for
rescission of a judgment, it has been held that the explanation
for
the default must be sufficiently full to enable the court to
understand how it really came about.
[3]
[8]
Whilst it is for the applicant to give a reasonable explanation for
his or her default, the
onus
of proof to establish wilful default rests with the respondent.
[4]
[9]
The requirement that an applicant must show the existence of a
substantial defence does not mean that he or she must show a
probability of success. It is sufficient if he or she shows a
prima
facie
case, or the existence of an issue which is fit for trial.
[5]
In this regard, the following principles are useful:
[6]
“…
judgment
by default is inherently contrary to the provisions of s 34 of the
Constitution. The section provides that everyone
has a right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court,
or, where
appropriate, another independent and impartial tribunal or forum.
Therefore, in my view, in weighing up facts for
decision, the court
must on the one hand balance the need for an individual who is
entitled to have access to court, and to have
his or her dispute
resolved in a fair public hearing, against those facts which led to
the default judgment being granted in the
first place. In its
deliberation the court will no doubt be mindful, especially when
assessing the requirement of reasonable cause
being shown, that while
among others this requirement incorporates showing the existence of a
bona fide
defence, the court is not seized with the duty to evaluate the merits
of such defence. The fact that the court may be in
doubt about
the prospects of the defence to be advanced is not a good reason why
the application should not be granted. That
said, however, the
nature of the defence advanced must not be such that it
prima
facie
amounts to nothing more than a
delaying tactic on the part of the applicant.”
[10]
In considering the proper approach to be adopted in the evaluation of
the evidence set out in the affidavits, it is necessary,
in my view,
to consider the nature of the relief sought. The effect of
rescission would be to render the existing order a
nullity.
Neither advantage nor disadvantage can flow therefrom. The
applicant is entitled in appropriate circumstances
to claim that the
status
quo ante
be
restored.
[7]
Accordingly,
in my view the grant of rescission can be likened to the grant of
interim relief and the proper approach is
to take the facts set out
by the applicant together with any facts set out by the respondent
which the applicant cannot dispute
and to determine whether, on those
facts, the applicant is entitled to relief.
[8]
[11]
An examination of the content of the affidavits filed in the
application brought in the court
a quo
reveals that the appellant complains that service of the summons was
irregular with the result that she did not receive the summons.
Although the appellant placed the sufficiency of the service of the
summons in issue, her application papers in the court
a
quo
did not include the return of
service. Reference is made to the manner of service in the
magistrate’s judgment and
counsel before us were in agreement
that the judgment was correct in describing that service was by way
of affixing the summons
to a principal door (apparently the return of
service in counsels’ possession referred to a principal gate)
in Mazi zini
Location, Zimbane Administrative Area, Mthatha. In
the agreement she entered into with the respondent, the appellant
gave
this address as her
domicilium
citandi et executandi.
In these
circumstances the magistrate concluded that the appellant could not
be heard to complain that the address was “too
vast an area”
to effect proper service. She stressed that the
onus
had been on the appellant to give the respondent an address at which
she could be reached. She also highlighted the fact
that the
terms of the return of service indicated clearly that there was some
sort of residence where the service was effected.
In assessing
whether or not the magistrate misdirected herself in this regard, the
court observed that the affidavits deposed to
by the appellant do not
disclose an address which is more specific or detailed than the one
she nominated in her agreement with
the respondent. In the
circumstances, I am of the view that the magistrate was correct in
dismissing the appellant’s
complaint about the service by
affixing at her nominated address.
[12] It is clear
from the founding affidavit that in setting out her defence to the
claim, the appellant acknowledges her indebtedness
and explains that
she was attempting to bring her arrears up to date when the
respondent closed her bank account. She states
that she was not
given a chance to negotiate the issue and claims that this attitude
on the part of the respondent is “unfair”
because the
respondent was aware that she could not “afford such a huge
cash payment at once and for all”(
sic
). The
reference is to the final payment, or residual amount, shown on the
face of the agreement to be R79 485, 00.
The appellant
stated that she had approached the bank for credit. She
concludes the founding affidavit with the following
statement:
“
I
desire fair opportunity with the Respondent to engage in a reasonable
settlement of the matter out of Court, taking into account
various
factors, including the present economic climate and the re-opening of
the Bank Account into which I have been paying the
instalments in
respect of the said car
.”
[13]
It is apparent from the respondent’s answering affidavit that
this desire to settle the outstanding indebtedness was
first
expressed on 3 June 2014 when the appellant’s husband first
contacted the respondent and advised that he was the one
responsible
for paying for the vehicle, that it was “in for repairs”
and that as he did not have money to settle the
account he would like
to do so by a continuation of instalments. The respondent
advised the appellant’s husband that
the respondent’s
policy restricted it from restructuring the account and accordingly
(full) settlement of the account was
required.
[14]
It is to be noted that the telephonic contact made by the appellant’s
husband with the respondent appears to have been
prompted by the
despatch to the appellant by way of prepaid registered post sometime
around 30 May 2014 of a notice in terms of
s129 of the National
Credit Act. A South African Post Office report was attached to
the respondent’s summons indicating
that this registered letter
had reached the relevant post office and that a first notification of
its existence had been sent out
to the appellant. However, a
copy of the s129 letter and a copy of the South African Post Office
report was not included
by the appellant in her application. In
the absence of any indication to the contrary, it is reasonable to
assume that the
s129 letter was also addressed to the appellant at
her chosen
domicilium citandi et
executandi
, the same address to which
the summons was directed, and that the registered letter was received
and prompted the telephonic contact.
In my view, this serves
further to indicate that the appellant’s complaint about the
service of the summons is without substance.
[15]
The appellant’s replying affidavit attempts to import into the
matter all sorts of arguments in principle about the inadequacy
of
the expression of the terms of the agreement relating both to the
address nominated by the appellant and the identification
of the
residual amount payable in terms of the agreement. It also
imports the notion that the appellant was unaware of what
she had
signed. Not only it is trite that an applicant in motion
proceedings cannot make out a case in his or her replying
affidavit,
but it is plain from the legalese and third person used in the
replying affidavit that it reflects the handiwork of
the appellant’s
legal representative and not the appellant’s own state of mind.
For these reasons, it is not necessary
to have regard to the content
thereof in ascertaining whether or not the appellant has a
bona
fide
defence to the action. Even if one did, the thread of
acknowledgment of indebtedness and liability can still be detected
therein. Moreover, the appellant does not indicate any legal basis
upon which she might be excused from the consequences of having
applied her signature to the agreement.
[9]
In my view, the appellant has failed to disclose a
bona
fide
defence.
[16]
It follows that, the appellant has failed to satisfy the requirements
for a rescission of the judgment granted against her
by default and
the conclusion set out in the magistrate’s judgment are
correct.
[17]
In these circumstances the appeal cannot succeed. There is no reason
why costs should not follow the result.
[18] The following
order issues:
“
The
appeal is dismissed with costs.”
R.W.N. BROOKS
JUDGE
OF THE HIGH COURT (ACTING)
PAKADE
J:
I
agree.
L.P. PAKADE
JUDGE
OF THE HIGH COURT
Counsel for the
Appellant: ADV E.N. NYOBOLE
Instructed by: CB
NGUZA & ASSOCIATES
27
VICTORIA STREET
CATHEDREAL
BUILDING
MTHATHA
Counsel for the
Respondent: ADV K.L. WATT
Instructed by: JA
LE ROUX INC.
93
NELSON MANDELA DRIVE
MTHATHA
Appeal heard on:
29 April 2016
Judgment
delivered on: 10 May 2016
[1]
CAROLUS
v SAAMBOU BANK LIMITED; SMITH v SAAMBOU BANK LIMITED
2002 (6) SA 346
(SECLD).
[2]
HDS
CONSTRUCTION (PTY )LTD v WAIT
1979 (2) SA 298
(E) 300 F – 301
C; GRANT v PLUMBERS
1949 (2) SA 470
(O) 476-477.
[3]
SILBER
v OZEN WHOLESALERS (PTY) LTD
1954 (2) SA 345
(A) 353 A.
[4]
MAHOMED
ABDULHA v CHOCHAN
1933 NPD 334.
[5]
SANDERSON
TECHNITOOL (PTY) LTD v INTERMENUA (PTY) LTD
1980 (4) SA 573
(W).
[6]
RGS
PROPERTIES (PTY) LTD v ETHEKWINI MUNICIPALITY
2010 (6) SA 572
(KZD)
575 G-576 C.
[7]
SECURIFORCE
CC v RUITERS
2012 (4) SA 252
(NCK) 261 D-E.
[8]
SPUR
STEAK RANCHES LTD AND OTHERS v SADDLES STEAK RANCH, CLAREMONT, AND
ANOTHER
1996 (3) SA 706
(C) 714 E.
[9]
AFROX
HEALTHCARE BPK v STRYDOM 2006(6) SA 21 (SCA).