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[2016] ZAGPPHC 717
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Sekgala v Standard Bank of South Africa Ltd, In Re: Standard Bank of South Africa Ltd v Sekgala (23517/2014) [2016] ZAGPPHC 717 (1 April 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION,PRETORIA]
23517/2014
Reportable:
No
Of
interest to other judges: No
Revised.
1/4/2016
RAMMUTLANA
BOELIE SEKGALA
(ID
no:…)
Applicant
and
STANDARD
BANK OF SOUTH AFRICA
LTD
Respondent
IN
RE:
STANDARD
BANK OF SOUTH AFRICA
LTD
Plaintiff
and
RAMMUTLANA
BOELIE SEKGALA
(ID
no:…)
Defendant
JUDGMENT
SKOSANA
AJ
[1]
In this matter, the applicant seeks the rescission of the judgment
granted on 09 May 2014. He further seeks the reversal by
the
respondent of all legal costs debited to his home loan account with
the respondent. The applicant appeared in person and the
respondent
was represented by Adv Van Niekerk.
[2]
At the beginning of the hearing, an issue was raised with regard to
the replying affidavit, namely that it was filed out of
time, there
was no condonation application for such lateness and with regard to
the new matters raised therein. This issue was
eventually resolved
when the applicant decided not to rely on such replying affidavit
thereby limiting himself to relying only
on the founding affidavit.
The respondent has filed an answering affidavit.
[3]
The facts of the matter are briefly that the applicant and the
respondent concluded a loan agreement in terms of which the
respondent granted the applicant a loan of about R200 000-00 as well
as a further loan of R50 000-00. A mortgage bond was registered
over
the immovable property of the applicant situated at section 29,
Glenhurst Kew.
[4]
The applicant failed to service the loan by making monthly repayment
as agreed and therefore committed a breach of the loan
agreement. The
respondent initially issued notices in terms of section 129 of the
National Credit Act 34 of 2005 ("NCA")
as well as summons
under case no. 50438/12. The action was not defended and a default
judgment was obtained by the respondent ("the
first default
judgment").
[5]
The respondent brought an application for rescission which succeeded.
The main basis upon which the rescission application succeeded
was
that the initial process was flawed because the respondent was
oblivious of the fact that the applicant had changed his domicilium
in accordance with their contract. The court process had been served
at the initial domicilium of the applicant.
[6]
After the successful rescission application, new attorneys were
appointed by the respondent who then withdrew the initial action
by
the respondent against the applicant including the notices issued in
terms of section 129 of the NCA.
[7]
On 28 March 2014, the respondent issued fresh notices in terms
of section 129 of the NCA to which there was no response
from the
applicant. Thereafter new summons were issued under the present case
number. Both the notices and the summons were served
at the newly
chosen domicilium of the applicant. The applicant did not defend the
action as a result of which the second default
judgment was obtained
against the applicant and was handed down by Ms Justice Collins on 09
May 2014.
[8]
After the second default judgment, the present rescission application
was instituted apparently on 14 July 2014. There is a
dispute as to
when exactly this application was served on the respondent.
Endeavours to execute the default judgment were interdicted
by the
court on 17 September 2014 pending the finalization of this
rescission application after the applicant had brought an urgent
application to that effect.
[9]
It is clear from the arguments that the applicant's case was to a
large extent hamstrung by his decision to forego any reliance
upon
the replying affidavit as stated earlier. He only could rely on the
facts as raised in the founding affidavit in so far as
they were not
directly controverted by the respondent's answering affidavit.
[1]
[10]
The applicant relied on Rule 42(1)(a) of the Uniform Rules, the
common law as well as Rule 31. As far as Rule 42(1)(a), he
submitted
that under Rule 42(1)(a), good cause is not a requirement as long as
it is shown that the order was erroneously sought
and/or erroneously
granted in the absence of the applicant. This submission is correct.
[11]
The applicant further submitted that the respondent had not attached
a written loan agreement as required by Rule 18 of the
Uniform Rules
and that therefore the default judgment was erroneously granted. He
stated that the only attachment that the respondent
has made to the
combined summons was a letter of grant as well as the mortgage bond
document.
[12]
The argument of the applicant was effectively dealt with by Ms Van
Niekerk. She referred me to the letter of grant which shows
the loan
granted to the applicant as well as the applicant's acceptance
thereof through his signature. He further referred me to
the
annexure to the mortgage bond document and particularly the
definition of a loan agreement under paragraph
1.11
thereof which provides
"'loan agreement' means the loan
agreement made up of the letter of grant (as accepted by the
mortgagor), the bond and this
annexure".
She submitted that
the acceptance of grant, the bond and the annexures constituted a
written agreement between the parties. There
was no counter argument
to this submission and I accept it.
[13]
The other grounds relied upon by the applicant related to the section
129 notices issued before the summons were served in
relation to the
second default judgment. The main contention by the respondent
against this submission is that this issued was
not raised in the
applicant's founding affidavit and therefore the applicant could not
rely thereon. Moreover, Iwas referred to
pages 147 to 149 of the
paginated papers which show that the section 129 notice were properly
issued and served. I am satisfied
by such explanation and need not
deal further therewith as in any event this is not supported by the
applicant's founding affidavit.
[14]
The applicant went further to deal with the issues under common law
and in particular stated that when the. summons were served
by
annexing a copy to the main door of the chosen domicilium, there is
always a possibility that the summons would not reach the
applicant.
He relied on the case of
Mphambela v Standard Bank of South Africa
Ltd
case no. 15263/2010 decided by Lephoko, AJ. The applicant
relied heavily on paragraph 17 of that judgment where the following
is
stated:
"[7]
As the summons was served by affixing
a
copy thereof to the
outer principal door, I accept that
a
possibility exists that
the summons may not have come to the attention of the applicant. For
this reason I am of the view that the
applicant has established that
he was not in willful default".
[15]
The applicant has omitted to refer to paragraph 16 of that judgment
where the acting Judge found that the summons had been
properly
served on the applicant. The conclusion of the case was the dismissal
of the rescission application.
[16]
It was argued on behalf of the respondent that the case of
Mphambela
is distinguishable since in this case the applicant has
consistently given the impression to the bank that the newly chosen
domicilium
was the address that he was using and from which he was
receiving all process. There was no indication by the applicant as to
what
could have led to the summons not coming to his notice after
they had been. annexed to the main door of his newly chosen address.
[17]
In this case, I am satisfied that the applicant has not shown absence
of willful default on his part as argued by the respondent's
counsel.
In
Loryan (Pty) Ltd v Solarshi Tea and Coffee (Pty) Ltd
1984 (3)
SA 834
(W)
at 847, the following was stated:
"Where
a
contract provides for
a
domicilium for notices under
the contract, as well as for the service of process, there is
a
so-called double provision. See Gerber v Stoltze and Others
1951
(2) SA 166
(T) at 169G and the Mulbarton case supra at 332 in fine.
The purpose of choosing
a
domicilium for the giving of
a
prescribed notice under
a
contract is the same as it
is for the service of
process, namely to relieve the party
giving the notice from the burden of proving receipt thereof."
[18]
I am satisfied that in this case the summons leading to the second
default judgment were served properly at the newly chosen
domicilium
of the applicant. If it were to be assumed in all cases that where
the summons had been served by affixing a copy to
the main door of
the defendant, the possibility exist that they will not come to the
attention of the defendant, the provisions
of Rule 4(1)(a)(iv) would
be rendered nugatory. The applicant must place facts before court
which will show why in the circumstances
of his case the summons did
not or could not have come to his notice. despite such proper
service.
[19]
In the circumstances, the applicant has failed to make out a case for
rescission.
[20]
As far as the costs of 28 April 2014 are concerned, argument was
presented that such wasted costs were occasioned by the applicant's
late filing of the replying affidavit. Regarding the costs of 17
September 2014 relating to the urgent application leading to the
interdict of the execution process, it was argued on behalf of the
respondent that such interdict was served before the present
rescission application was brought to the notice of the respondent's
attorneys as set out in the answering affidavit, which is
contradicted by the apparent acknowledgement of receipt by the
respondent's attorneys appearing on the notice of motion. The
respondent's
counsel also argued that the rescission application
should be dismissed with costs on a scale as between attorney and
client, which
is provided for in the contract between the parties.
[21]
Against this argument on costs, the applicant in reply only stated
that it should be the
"winner takes all'
in the sense
that the successful party in the rescission application should be
given all the costs including the reserved costs.
Notwithstanding
this concession, I need to apply a judicious discretion with regard
to the issue of costs.
[22]
Before dealing with costs, I need only to deal with one aspect
relating to the date of acceptance of the letter of grant. The
date
was hand written and it is not clear whether it is 30/11/2009 or
30/11/2004. The respondent's affidavit stated that this date
was 30
November 2009.
[23]
However, in argument Ms van Niekerk informed me that there was an
error due to the unclear handwriting. The correct date is
30 November
2004 and not 2009 as stated in the respondent's answering affidavit.
She tendered to file a further supplementary affidavit
in explanation
thereof. The applicant objected against the filing of this affidavit
and I upheld the objection and indicated that
I will decide on the
basis of the papers as they stand.
[24]
The original of that document was handed up by the respondent's
counsel. First, the last figure on the original appears
to be either
a 9 or a 4. Second, the date of 30 November 2004 accords with the
rest of the documents. Third, the mortgage bond
could not have been
concluded before the grant of the loan. It was signed on 01 December
2004. Fourth, the issue of this date was
not raised in the
applicant's founding affidavit but only during argument. Strictly
speaking therefore the applicant was not entitled
to rely on such
argument, this being a factual issue.
[25]
In the circumstances, I am convinced that the date inserted by hand
in that document refers to 30 November 2004 and that the
reference
thereto as 30 November 2009 in the respondent's answering affidavit
was done in error.
[26]
As regards the costs referred to above, the respondent sought to
argue before me that the replying affidavit of the applicant
was
filed out of time and intended to seek a postponement on that basis
as stated earlier. It is on that basis that the applicant
relinquished his reliance on the replying affidavit. In my view, the
applicant will be penalized twice if he were to be mulcted
with the
wasted costs occasioned by the postponement of 28 April 2014 in the
light of what happened at the beginning of these proceedings
before
me. Each party should therefore carry the wasted costs occasioned by
the postponement of 28 April 2014.
[27]
As far as the costs of the urgent application of 17 September 2014,
it seems to me that there is a dispute of fact as to whether
the
respondent attempted to execute the default judgment after it
had been served with the present rescission application
or not. This
in my view is pivotal to the question whether it was necessary for
the applicant to bring such urgent application
to interdict the
execution. Although the respondent denies that it received the
rescission application on 14 July 2014 as appears
in the notice of
motion, it is unknown as to how this acknowledgement of receipt came
onto the notice of motion and whose signature
appears thereon. In my
view therefore, each party should carry the costs of that urgent
application.
[28]
As far as the costs of the rescission application, the costs must
follow the results. As per the agreement between the parties
such
costs should be at a punitive scale as between attorney and client.
[29]
In the result, I make the following order:
[a]
The application is dismissed.
[b]
The applicant is ordered to pay the costs of the application on an
attorney and client scale.
[c]
Each party is to carry its own costs with regard to the wasted costs
occasioned by the postponement of 24 April 2014 and the
urgent
application heard on 17 September 2014.
___________________
D
T SKOSANA
Acting
Judge of the High Court
[1]
See Plascon Events v Van Riebeck
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634