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[2016] ZAGPPHC 86
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Letwaba v Standard Bank of South Africa Limited (56511/2014) [2016] ZAGPPHC 86 (17 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 56511/2014
DATE:
17/2/2016
In
the matter between:
ITUMELENG
CHARMAINE
LETWABA APPLICANT
and
STANDARD
BANK OF SOUTH AFRICA
LIM
I
TED RESPONDENT
JUDGMENT
FOURIE
CP,
AJ
[1]
The Applicant (the Defendant in the action) brought an application
for rescission of a default judgment granted in favour of
the
Respondent (the Plaintiff in the action) on 18 February 2015. For
the sake of convenience and clarity, the parties will
be referred to
as in the action.
[2]
The application for rescission is brought in terms of Uniform Rule
31(2)b). The requirements that must be satisfied for rescission
of
judgment in terms of Uniform Rule 31(2)(b) are well established. Good
cause must be shown why the remedy should be granted.
That entails:
(a)
Giving a reasonable explanation of the default;
(b)
Showing that the application is made
bona fide;
and
(c)
Showing that there is a
bona fide
defence to the Plaintiff's
claim which
prima
facie
has some prospect of
success.
In
addition, the application must be brought within twenty (20) days
after the Defendant has obtained knowledge of the judgment.
If
the application is not brought within twenty (20) days, good cause
must also be shown why the time period within which
the application
could be brought, should be extended.
[3]
The Plaintiff and the Defendant entered into a loan agreement secured
by a mortgage bond. The Defendant allegedly failed to
comply with the
terms of the loan agreement, as she fell in arrears with the payment
of the monthly instalments. As a result, the
Plaintiff instituted
action against the Defendant.
[4]
Ttie combined summons was served at the Defendant's chosen
domicilium
citandi
address on 9 August 2014 at 11:20, by
affixing a copy thereof to the principal door. It is common cause
that the address of service
corresponds with the chosen
domicilium
address chosen by the Defendant. The Defendant did receive the
summons and on/or about 26 August 2014 made a payment of R55 000.00
to the Plaintiff and on/or about 7 September 2014 a further payment
of R10 000.00 was so made. The Defendant was then advised by
the
Plaintiff that it has stopped legal action due to the payment
received. It appears as if the Defendant was so advised on 1
October
2014.
[5]
Before being so advised, the Plaintiff decided to proceed with an
application for default judgment. The application is dated
25 August
2014 and was set down for 14 October 2014, but was only served on 1
October 2014, not at the chosen
domicilium
address, but
at the bonded property, where one Mr Thulare Twala (family friend)
accepted service. According to the return of service,
the said Mr
Twala confirmed that the Defendant is residing at the given address.
[6]
The application for default judgment was removed from the unopposed
motion roll for 14 October 2014 and in an affidavit on behalf
of the
Plaintiff, made on 23 January 2015, the reason for the removal of the
application from the unopposed motion roll, was due
to the
Defendant's payment of R10 000.00 on 8 September 2014. No reference
is being made in such affidavit of the earlier payment
of R55 000.00
which was also made. In such affidavit it is also alleged that no
further payments were made after 8 September 2014.
[7]
The Plaintiff proceeded to re-enrol the application for default
judgment for 18 February 2015. The notice of re-enrolment dated
16
January 2015 was again served at the bonded property on 6 February
2015: " .... by delivering or leaving a copy ......
to the
principal door at the chosen domicilium citandi et executandi of 7
Mahasu Crescent, Tzaneen, being the chosen domicilium."
This is
however not the chosen
domicilium
address and the chosen
domicilium
address is 19955 Khutsong, Mamelodi East, Pretoria,
Gauteng. The return of service further states that the sheriff
confirmed the
address with a Mrs Botha, the neighbour, who also
informed the sheriff that the Defendant is home, but that they refuse
to open
the door. The Defendant alleges that she only on/or about 27
February 2015 when she went to the bonded property, found the notice
of re-enrolment.
[8]
On 18 February 2015 default judgment was granted in favour of the
Plaintiff against the Defendant for:
(1)
Payment of the sum of R831 338.51;
(2)
Interest thereon at the rate of 9,35% per annum calculated daily and
compounded
monthly in arrears from 23 June 2014 to date of final
payment, both dates inclusive;
(3)
Payment of monthly insurance premiums of R352.37 per month from 23
June
2014, for the full period Plaintiff makes payment of such
monthly insurance premiums in relation to the bonded property;
(4)
Cost of suit to be taxed on a scale as between attorney and client;
(5)
An Order in terms whereof the bonded property is declared executable;
(6)
An Order that the Registrar is authorised and directed to issue a
writ
of execution against the bonded property in accordance with the
terms of the judgment.
[9]
The amount of R831 338.51 for which default judgment was
inter
alia
granted, was for exactly the same amount as claimed in the
summons, despite the fact, which is common cause, that an amount
totalling
R65 000.00 was paid by the Defendant, subsequent to the
issuing of summons.
[10]
On behalf of the Plaintiff it was argued that this Court may rescind
part of the default judgment and that rescission
should only be
granted in respect of the
amount
of R65 000.00 and that the Defendant be granted leave to defend the
action in respect of the aforesaid amount only.
[11]
I am of the view that the application for rescission of the default
judgment should have been brought in terms of Uniform Rule
42(1) and
in particular Uniform Rule 42(1)(a), as the default judgment was
erroneously sought and erroneously granted in the absence
of the
Defendant. Both counsel for the Plaintiff and the Defendant agreed
that this Court may rescind the default judgment in terms
of Uniform
Rule 42(1), should it be found that the default judgment was
erroneously sought or erroneously granted in the absence
of the
Defendant.
[12]
The notice of re-enrolment of the application for default judgment
should have been served on the Defendant at her chosen
domicilium
address, which it was not. It was ncessary to serve such notice,
as the Defendant was previously advised by the Plaintiff that it
stopped legal action due to the payment received. Nothing prevented
the Plaintiff to
ex abudanti
also serve such notice at the
bonded property, but the fact that service was not effected at the
chosen
domicilium
address, in my view constitutes that
there was no proper service on the Defendant.
[13]
In addition, judgment should never have been sought for the initial
amount claimed of R831 338.51, but for a lesser amount,
taking the
payment of R65 000.00 into account. Furthermore, judgment for
interest calculated from 23 June 2014 should not have
been sought as,
due to the payments made, the interest should have been calculated
from a later date.
[14]
The requirements for rescinding a default judgment in terms of
Uniform Rule 42(1)(a), which differs significantly from the
requirements to be satisfied in terms of Uniform Rule 31(2)(b), are
well established and can for purposes hereof, be summarised
as
follows:
1.
Once it is shown that the order was erroneously sought or erroneously
granted, the Court will usually rescind or vary the order;
2.
Good cause need not be shown. To this end it needs to
be
mentioned that the Defendant alleges that she never received the
Section 129 notice, but during argument the defence of non-compliance
by the Plaintiff with the provisions of
Section 129
of the
National
Credit Act, 34 of 2005
, was abandoned;
3.
The duty to apply is within a reasonable period and not within
a
specific time limit.
[15]
I am of the view that the aforesaid requirements have been satisfied
and that the default judgment was erroneously sought and
granted and
I accordingly exercise my discretion to rescind the default judgment.
[16]
Despite the fact that the application was not brought in terms of
Uniform
Rule 42(1)(a)
, I am of the view that the Plaintiff's conduct
warrants a costs order to be made and that the costs should follow
the outcome.
[17]
In the result, I make the following order:
1.
The default judgment granted on 18 February 2015 is rescinded
and set
aside;
2.
The Respondent is to pay the Applicant's costs of the application.
____________________________
CP
FOURIE
ACTING
JUDGE OF GAUTENG DIVISION
OF
THE
HIGH COURT
OF SOUTH AFRICA
For
the Applicant:
Adv. M Joubert
Instructed by:
Justice Dikgale Attorneys
Pretoria
For
the Respondent:
Adv. M Riley
Instructed by:
Strydom Britz Mohulatsi
Inc.
Pretoria
DATE
OF HEARING:
10
February 2016
DATE.
OF JUDGMENT:
17 February 2016