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[2016] ZAGPPHC 128
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Mkhansi and Another v Firstrand Bank Limited (A798/14) [2016] ZAGPPHC 128 (17 March 2016)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
A798/14
DATE:
17/3/2016
In
the matter between:
LEAVIT
TSHIKETANI
MKHANSI
First
Appellant
BOMBELANI
ANNEGRATH
MAKAMU
Second
Appellant
and
FIRSTRAND
BANK
LIMITED
Respondent
JUDGMENT
Ismail
J:
[1]
This is an appeal against the dismissal of a rescission of judgment,
which was handed down by J W Louw J in this court against
the
appellants on the 3 April 2014.
[2]
Leave to appeal was granted to the full court of this division on the
14 May 2014.
[3] The respondents aver that the
appeal has lapsed in view of the appellants having failed to :
3.1 file the
required Notice of appeal within fifteen (15) days as provided
for in Rule 49 (2);
3.2 bring a
condonation application to explain the delay in prosecuting
the appeal
[4]
At the outset of the arguments presented, appellants representative,
addressed the court on the aspect of condonation. He submitted
that
the appellants had a good case on the merits and for that reason
condonation should to be granted.
[5] The Appellate Division, in
Melane
v Santam Insurance Co, Ltd
1962 (4) SA 531
at 532 B-E regarding
condonation stated:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the
Court
has a discretion, to be exercised judicially upon a consideration of
all the facts, and in essence it is a matter of fairness
to both
sides. Among the facts usually relevant are the degree of lateness,
the explanation therefor, the prospects of success,
and the
importance of the case. Ordinarily these facts are interrelated; they
are not individually decisive for that would be
a piecemeal approach
incompatible with a true discretion, save of course that if there are
no prospects of success there would
be no point in granting
condonation. Any Attempt to formulate a rule of thumb would only
serve to harden the arteries of what would
be a flexible discretion.
What is needed is a flexible conspectus of all the facts. Thus a
slight delay and a good explanation
may help to compensate for
prospects of success which are not strong. Or the importance of the
issue and strong prospects of success
may tend to compensate for a
long delay. And the respondent’s interest in finality must not
be overlooked.”
See
also :
United Plant Hire (Pty) Ltd v Hill
1976 (1) SA 717
(A)
at 720 E-G;
Ferris and Another v
FirstRand Bank Ltd
2014 (3) SA 39
(CC)
at par [10]-[12] and
Van Wyk v Unitas
Hospital (Open Democratic Advice Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) AT 477E.
[6]
The appellant submitted that this was a matter which concerned the
right to housing in terms of section 26 of the Constitution.
As such
it concerned an important issue which needed to be ventilated,
notwithstanding the delay.
[7]
Arguments were advanced by both protagonist, in respect of their
cases.
Background
to the dispute:
[8]
The appellants entered into a home loan agreement with the
respondent. The appellants experienced financial difficulties and
they approached a debt counselor, who arranged a debt review
process for them. The debt review was restructured and made
an order
of court. The monthly instalments, to the respondent in terms of the
debt restructured scheme was substantially reduced,
almost by half
the original payments in terms of the loan.
[9]
The appellants in terms of the magistrate’s court order were to
pay over an amount of R24 580,00 per monthly to the payment
agent,
referred to as the PDA. For several months the appellants paid over
an amount which was less than the amount they ought
to have paid to
the PDA, in terms of the magistrates order.
[10]
The respondent issued summons against the appellants for their breach
of payments in terms of the agreement. Default
judgment
was granted against the appellants. The summons was served at the
agreed
domicilium
of
the appellants. It was common cause that the appellants did not
receive the summons and
a fortiori
they
were not in willful default.
[11] It came to the respondents
attention that judgment was taken against them and consequently they
brought an application for
rescission of the judgment taken against
them. This application was heard by Louw J, referred to in par [1],
supra.
The
legal position:
[12]
Mr Tshishonga on behalf of the appellants submitted that the
court
a
quo
erred
in finding that the PDA was the appellants agent. As the PDA failed
to pay over the reduced amount to the respondent, in terms
of the
restructured payment, the appellants were liable for the omission of
their agent. He submitted that the PDA is not an agent
of the debtor
but rather a person who is appointed in terms of the Act and is an
agent of the system.
[13]
In this regard he relied upon the decision of
Nedbank v Thompson
2014 (5) SA 392
(GJ) and specifically
to paras [14]; [16] and [19] of the judgment, where the court found
that there was no relationship of agency
between the PDA and the
consumer.
In
response Adv du Plessis SC, acting for respondent submitted that the
Thompson
decision
was wrongly decided and that this court should follow the approach
set out in
Kneen and Roper v ABSA Bank
Limited
(Eastern Cape, Port Elizabeth
Division, Case no 1358/2013, and at para’s 18-40 of the
judgment)
[14]
The question whether the PDA was the consumer’s agent was dealt
with by Mavudla J in
FirstRand Bank
Limited v Barrett and Another
(unreported
matter in this division under case number 81205/2014 dated 19 June
2015). At para [13] the learned Judge relied upon
Thompson’s
matter where it was held that the
Payment Distribution Agency [PDA) is a payment distribution agency
approved by the National Credit
Regulator (the NCR) and is not the
agent of the consumer but of the counselor.
[15] Appellants counsel submitted that
Louw J found that the consumers, the appellants, paid the full amount
and their agent failed
to pay over the re-arranged amount to the
respondent. He relied upon the following extract from the judgment of
Justice Louw:
“
It
is unfortunate for the applicants that this is the situation in that
it appears that they may have made all payments required
of
them, but that the PDA did not, on their part, pay what they were
supposed to pay to FNB. The PDA is not FNB’S agent and
acts on
behalf of the applicant.”
[16]
My understanding of the passage is that Louw J does not make a
conclusive finding that the monies were paid over to the PDA.
The
operative words being ‘
it appears
that they may have’.
The gist of
the remarks pertains not as much as to how much was paid but rather
to the issue of whether the PDA was FNB’s
agent or the
consumers agent.
[17]
For the purpose of this appeal it is not necessary for us to comment
upon the issue whether the PDA is the agent of the consumer
or
otherwise. We are to pronounce upon the correctness or errors of the
judgment handed down by Louw J in the court a quo, dismissing
the
rescission application.
[18]
In this regard the pivotal issue is whether the appellants paid over
the amount which was ordered by the court in terms of
the
restructured debt. This issue raised some debate before us. On behalf
of the appellants it was submitted that the full amount
was paid to
the PDA, whereas respondents counsel argued to the contrary.
Respondents relied on exhibit LT1 (pages 180-191 of the
record) to
show that less than the amount due was paid to the PDA.
[19]
From the uncontroverted evidence before us it is clear that the full
amount was not paid to the respondent in terms of the
re-arranged
scheme, and the issue to be determined was whether the respondent was
entitled to take judgment as it did.
[20] Mr Du Plessis submitted that once
the rearranged scheme of payment is breached, in that any amount in
terms of the re-arranged
scheme is not paid, the credit provider need
not give notice again. He submitted that support for his submission
could be found
in
Ferris’
matter,
supra
, as well
as
Jili v Firstrand Bank Limited
2015 (3) SA 586
SCA.
[21] In
Ferris,
Moseneke ACJ at
para [17] stated:
“
It
follows that Mr and Mrs Ferris ’breach of the
debt-restructuring order entitled FirstRand to enforce the loan
without
further notice. However, even if further notice were
required, its absence is a purely dilatory defence- a defence that
suspends
proceedings rather than precluded a cause of action- and is
not an irregularity that establishes that a judgment has been
‘erroneously
granted’, justifying a rescission under rule
42(1)(a).”
[22]
In the light of the Constitutional Courts finding referred to above,
it is abundantly clear that the issue of giving notice
to the
appellants was not necessary and it concomitantly follows that the
appellants failed to show a
bona fide
defence.
[23] Notwithstanding Louw J’s
error in finding that the PDA was the agent of the consumer, the
appeal should nevertheless
be dismissed as the appellants breached
the debt restructure agreement and they failed to put forward a bona
fide defence.
Costs
[24]
The question of costs was not argued before us, apart that the
outcome of the appeal should be awarded with costs. More specifically
the question of costs for two advocates on behalf of the respondent
was not canvassed at all.
[25]
The question of costs is within the discretion of the court. It is
trite that the costs would generally follow the result.
The question
which needs to be answered is whether the matter required the
services of two counsel on the part of the respondents.
[26]
The law on this aspect was sufficiently crystallized and I am of the
view that this matter could have been handled by a single
advocate,
as opposed to engaging the services of two advocates.
[27] According, the following order is
made:
(i) The appeal is dismissed;
(ii) The appellant
is ordered to pay the costs of the appeal on a party and
party
scale, such costs to include the costs of a one advocate.
_______________________
Ismail
J
I
agree
_________________________
Mavundla
J
I
agree
and
it is so ordered
__________________________________
Rabie
J
APPEARANCES
:
For
the Appellants:
Mr
V TshIshonga instructed by Khoranbi Mabuli
Attorneys
Hatfield, Pretoria.
For
the Respondent: Adv D T v du Plessis SC assisted by
Adv M
Reineke
instructed by Bezuidenhout van Zyl & Associates
Date
of Appeal: 2 March 2016.
Judgment
delivered on: 17 March 2016