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[2016] ZAGPPHC 204
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Kortekaas v Nedbank Limited (25147/2014) [2016] ZAGPPHC 204 (17 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG, PRETORIA
CASE
NO: 25147/2014
DATE:
17 MARCH 2016
In
the matter between:
KORTEKAAS
J J
M
.................................................................................................................
Applicant
And
NEDBANK
LIMITED
...........................................................................................................
Respondent
JUDGMENT
NEUKIRCHER
AJ
1]
This is a matter that has rather a sad
and somewhat disturbing history. I do not intend to set out the
entire history as, in my
view, that is not necessary, but I will set
out some of the salient facts in order to demonstrate why it is that
I intend to make
the costs order that will follow the result of this
matter.
2]
To start with, this application for
recission of judgment was launched 11 days late. In the bigger scheme
of things that is, quite
frankly, de minimus and I grant condonation
for the late filing of the application.
3]
It appears from the papers that on 28
August 2014 judgment was granted by the Registrar against the
applicant and two other parties
who had all bound themselves as
sureties and co-principle debtors for the debts of a company known as
Memo ire Trading 118 (Pty)Ltd
(“the principal debtor”).
4]
The judgment should, unfortunately,
never have been granted in the first place as it appears quite
clearly from the papers that
service had actually never taken place
upon the chosen domicilium citandi et executandi. It took place at a
completely foreign
address and where the sheriff obtained this
particular address to serve the papers is nowhere explained by the
respondent or the
respondent’s ttomeys of record. Furthermore,
why the respondent’s attorneys actually sought judgment under
these circumstances
and why the registrar actually granted judgment
leaves one with a very bad taste in the mouth and this too is not
explained anywhere.
But this is not the end of the matter.
5]
It would appear that:
5.1
during April 2008 the applicant received
a letter in terms of si 29 of the
National Credit Act 34 of 2005
;
5.2
he then contacted the respondent’s
attorneys and explained to them that he had sold his shares in the
principal debtor in
2006 to the 2 remaining shareholders and provided
the attorney with their details - he heard nothing further and
assumed that all
was resolved;
5.3
during January 2010 he again received a
letter in terms of si29 of the
National Credit Act 34 of 2005
and he
again contacted respondent’s attorneys and explained to them
that he had sold his shares in Memoire Trading 118 (Pty)Ltd
(the
principal debtor) in 2006 to the 2 remaining shareholders and
provided the attorney with their details - he heard nothing
further
and again assumed that all was resolved;
5.4
on 29 January 2014 he then received an
email from one Des du Toit of DRSM attorneys claiming an amount of
R117 296-78 and the applicant
again explained the situation to the
attorney for the third time in 6 years. He then received an
acknowledgement of receipt of
this email and assumed that this was
the end of the matter when suddenly a year later ie in January 2015
he was contacted again
by the same firm of attorneys and the entire
matter started all over again.
5.5
It was only after some correspondence
had flowed between them, that the applicant was informed that
judgment had already been taken
against him.
5.6
What is very clear upon a clear reading
of all the documents provided by the applicant is that, in the claim
as against him personally,
his debt had prescribed prior to summons
being issued against him and judgment being obtained.
6]
And, of course, the defence of
prescription is exactly the defence upon which the applicant relies
to found his bona fide defence.
7]
Unfortunately, this matter has the
proverbial twist in the tail as it appears from the answering
affidavit the respondent in fact
took judgment against the principal
debtor on 29 August 2013.
8]
What
this in effect means is that the period of prescription of the
principal debt is no longer 3 years but 30 years because of
the
judgment and that the defence of prescription is not available to the
applicant in these circumstances.
[1]
9]
Thus
although I am of the view that the application itself is brought bona
fide, it unfortunately does not disclose a defence that
would
constitute a sustainable defence
[2]
for purposes of trial. In the circumstance the applicant can
therefore not succeed.
10]
What is left then is the question of
costs. I do not intend to mulct the applicant with a costs order
given all the circumstances
set out supra and especially in
circumstances where the respondent’s conduct has been less than
savoury. The respondent in
this matter obtained judgment on a return
of service which was certainly not in order. In fact, judgment should
never have been
sought or granted in the first place.
11]
Given those circumstances the following
order is made:
The
application is dismissed. No order as to costs is made.
[1]
Eley v Lynn and Main Inc 2008 (2) SA 151 (SCA)
[2]
Silber v Ozen Wholesalers
1954 (2) SA 345