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[2016] ZAKZPHC 72
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Kisten N.O and Others v Absa Bank Limited and Others (AR179/15) [2016] ZAKZPHC 72 (23 August 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HGH COURT OF SOUTH AFRICA
(KWAZULU-NATAL
DIVISION, PIETERMARITZBURG)
Case
number: AR179/15
DATE:
23 AUGUST 2016
In
the matter between:-
SHAUN
KISTEN
N.O
......................................................................................................
First
Appellant
MEENA
KISTEN
N.O
.................................................................................................
Second
Appellant
SHAUN
KISTEN
............................................................................................................
Third
Appellant
MEENA
KISTEN
.........................................................................................................
Fourth
Appellant
And
ABSA
BANK
LIMITED
..............................................................................................
First
Respondent
SHERIFFF
OF THE COURT, INANDA DISTRIC
2
...........................................
Second
Respondent
REGISTRAR
OF DEEDS FOR THE PROVINCE
OF
KWAZULU-NATAL
.............................................................................................
Third
Respondent
PURCHASER
AT SALE IN
EXECUTION
...........................................................
Fourth
Respondent
JUDGMENT
MAHARAJ,
A.J.
(KOEN
ET MNGUNI JJ concurring):-
[1]
The Appellants in this matter appeal against the decision of
Mokgohloa J where the learned Judge refused an application for
rescission of a default judgment on 15 May 2013.
[2]
The default judgment was granted by the Registrar of the High Court
Durban on the 18 October 2007.
[3]
The First and Second Appellants are trustees of the MSKC Family Trust
which borrowed monies from the First Respondent using
property owned
by the Trust as collateral. The Third and Fourth Appellants
signed as surety and co-principal debtors for
the loan amounts taken
by the Trust.
[4]
The First Respondent in this matter who was the plaintiff in the
court
a quo
sued the Appellants for the amounts owed in terms
of the mortgage contracts signed by the First and Second Appellants.
[5]
The certificate of balance reflected an amount of R791 463.00
which was the accelerated amount which remained owing by
the
Appellants. The certificate is dated 9 May 2007.
[6]
The Registrar granted default judgment in terms of Rule 31(5) on the
17 October 2007 in favour of the First Respondent.
The terms of
the judgment were as follows:
(a)
payment of R791 463.00;
(b)
interest on the aforesaid sum at the rate of 12.5% per annum,
calculated from 8 May 2007 to date of payment;
(c)
Against the First and Second Defendant only, an order declaring
executable the immovable property described as:
Erf
1……. U…….. R……. (Extension
No. 2) registration Division FU, in the Durban Metropolitan
Unicity
municipality area, province of KwaZulu-Natal in extension 1…..
square metres held under Deed of Transfer no. T2………..
(d)
Costs of suit on an attorney/client scale (to be taxed).
[7]
The Appellants then sought to have the said judgment rescinded on the
following grounds:
(a)
non-compliance with section 129 of the National Credit Act No. 34 of
2005; (NCA);
(b)
the provisions of section 26 of the Constitution not being dealt with
in the summons relating to the right to have access to
housing and
that no one may be evicted from their home.
[8]
Section 129 of the NCA deals with the procedures prescribed to be
followed before debt enforcement and provides in subsection
(1) as
follows:
“
(1)
If the consumer is in default under a credit agreement, the credit
provider –
(a)
may draw the
default to the notice of the consumer in writing proposing that the
consumer refer to the credit agreement to a debt
counsellor,
alternative dispute resolution agent consumer court or ombudsman with
jurisdiction, with the intent that the parties
resolve any dispute
under the agreement or, develop or agree on a plan to bring the
payments under the agreement up to date; and
(b)
subject to
section 130(2), may not commence any legal proceedings to enforce the
agreement before –
(i)
first
providing notice to the consumer as contemplated in paragraph (a) or
in section 86(10), as the case may be; and
(ii)
meeting any
further requirement set out in section 130
(2)
subsection (1) does not apply to a credit agreement that is subject
to a debt restructuring order, or to proceedings in a court
that
could result in such an order.
(3)
subject to subsection (4), a consumer may:
(a)
at any time before the credit provider has cancelled the agreement
re-instate a credit agreement that is in default by paying
the credit
provider all amounts that are overdue, together with the credit
providers permitted default charges and reasonable costs
of enforcing
the agreement up to the time of re-instatement; and
(b)
after complying with paragraph (a), may resume possession of any
property that has been reposed by the credit provider pursuant
to an
attachment order.
(4)
A consumer may not re-instate a credit agreement after –
(a)
the sale of any property pursuant to –
(i)
an attachment order; or
(ii)
surrender of property in terms of section 127;
(b)
the execution
of any court order enforcing that agreement; or
(c)
the
termination thereof in accordance with section 123.
[Date
of commencement of section 129: 1 June 2007]”
[9]
It is apparent that the Appellants became aware that the property was
put up for sale by the First Respondent. This is evidenced
by the
fact that an amount of R76 151.00 was paid to the First
Respondent on 22 February 2008 to stay the sale of the property
scheduled for 25 February 2008.
[10]
It is also apparent from an email of one Tokkie de Kock that the
Appellants were made aware that the First Respondent required
the
amount of R669 812.84 in order to further stay the sale of the
property scheduled for 4 June 2012.
[11]
The court a quo found that the Appellants launching the application
some four years later, for the rescission of the default
judgment was
not-
(a)
reasonable in the circumstances;
(b)
despite the fact that notice was not given in terms of section 129 of
the NCA it was not in the interest of justice to grant
rescission;
(c)
that the interests of justice also favours that matters come to
finality and the application for rescission ought to fail on
this
ground as well.
(d)
the court a quo also found that a “Trust” is not
protected under section 26 of the Constitution .
[12]
The Fourth Appellant appeared in person to argue the appeal and
confirmed she was the spokesperson for all the Appellants.
She
submitted that the delay of four years in bringing the application
for rescission was reasonable for the following reasons:
(a)
she was a lay person;
(b)
the default judgment was erroneously granted;
(c)
she was a victim of abuse by the First Respondent;
(d)
the interests of justice dictated the judgment be rescinded.
[13]
In
Nkata v Firstrand Bank Ltd and Others
2014 (2) SA 412
(WCC)
the court said that:
“
Rule
42(1) does not specify a time limit within which rescission must be
sought. Rescission under rule 42(1) must be sought
within a
reasonable period of time. (see
First
National Bank of Southern Africa Ltd v Van Rensburg N.O. and Others
:
In re
First National Bank of Southern
Africa Ltd v Jurgens and Others
1994
(1) SA 677
(T) at 681B-G). The same applies to rescission at
common law (see
Roopnarain v Kamalapathy
and Another
1971 (3) SA 387
(D) at 391
B-D). What is reasonable will depend on the circumstances of
each case
(Promedia Drukkers &
Uitgewers (Edms) Bpk v Kaimowitz and Others
1996 (4) SA 411
(C) at 421 F-H), but the twenty day period laid down
in rule 31(2)(b) provides some guidance as a starting point.
The reason
for a time limit is that there must be finality in
litigation and that the prejudice can be caused if rescission is not
promptly
sought. There is no reason in principle why a litigant
should have more time when seeking rescission under rule 42(1) than
under rule 31(2)(b).”
[14]
The party seeking rescission must show ‘good cause’ for
the rescission of the judgment. The court has a wide
discretion
in evaluating ‘good cause’ (see
Swadif (Pty) Ltd v
Dyke
1978 (1) SA 928
(A) at 939). ‘Good cause’ means
there is a reasonable explanation for the default (see
Maujean t/a
Audio Video Agencies v Standard Bank of SA Ltd
1994 (3) SA 801
(C).
“
A
judgment granted against a party in his absence cannot be considered
to have been granted erroneously because of the existence
of a
defence on the merits which had not been disclosed to the judge who
granted the judgment (see
Lodhi2
Properties Investment and Another v Bondev Developments (Pty) Ltd
2007 (6) SA 87
(SCA) at para 17 and 25.”
[15]
The Appellants on no less than six occasions paid the First
Respondent monies to have the sale of the property stayed.
In
my view this conduct amounts to pre-emption (see
Sparks
v David Polliack & Co (Pty)
Ltd
1963 (2) SA 491
(t) at 496 D-F). The general position is that
‘no person can be allowed to take up two positions inconsistent
with
one another, or as is commonly expressed to blow hot and cold,
to approbate and reprobate’. In order to show that a
person has acquiesced in a judgment, the court must be satisfied upon
the evidence that an act has been done which is necessarily
inconsistent with his continued intention to have the case reopened
on appeal.
[16]
The Appellants paid monies to the First Respondent as mentioned above
to stay the sale of the property on the following dates:
(a)
22 February 2008;
(b)
15 August 2008;
(c)
23 February 2009;
(d)
20 July 2009;
(e)
09 October 2010;
(f)
19 November 2011.
The
Appellants conduct in making these payments in my view is entirely
inconsistent with an intention to have the case reopened
by way of
rescission.
[17]
From what has been alluded to aforesaid, it is my view that the
failure by the First Respondent to include the section 129
notice
does not render the summons a nullity or the granting of the default
judgment by the Registrar on 18 October 2007 erroneous
on the basis
that even if the notice was alluded to in the summons, the Appellants
have not pointed to what effect remedy they
might have resorted, and
which they did not subsequently do, which would have warded off the
default judgment.
[18]
It is clear that the grounds of appeal as set out by the Appellants
and the reasons advanced for the delay in bringing the
application
for rescission some four years later, in my view, suggests that the
Appellants had acquiesced in the granting of the
default judgment.
[19]
I cannot find that the court
a quo
misdirected itself in exercising its discretion and in reaching the
conclusion.
[20]
Accordingly, I propose the following order:
The
appeal is dismissed with costs.
MAHARAJ,
AJ.
KOEN,
J.
MNGUNI,
J.
JUDGMENT
RESERVED: 5 AUGUST 2016
JUDGMENT
HANDED DOWN: 23 AUGUST 2016
COUNSEL
FOR APPELLANTS: IN PERSON
(Tel:
0786082589 & 0714018372)
COUNSEL
FOR RESPONDENTS: L MILLS
(Instructed
by: Sowell & Co Tel: 031 5369700 Ref A Ward/06A300630)