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[2016] ZAGPPHC 447
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Mathunzi v Standard Bank of South Africa Ltd (47197/2014) [2016] ZAGPPHC 447 (27 May 2016)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO:
47197/2014
NOT REPORTABLE
NOT OF INEREST TO
OTHER JUDGES
REVISED
In the matter between:
ARISTOTLE
THOMAS
MATHUNZI
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA
LTD
Respondent
DATE
OF HEARING DATE OF JUDGMENT
27
MAY 2016
27 MAY 2016
JUDGMENT IN RESPECT OF
APPLICATION FOR LEAVE TO
APPEAL
MANAMELA AJ
[1] This is an application for leave to appeal an
ex tempore
judgment granted on 18 August 2015 refusing an application for
rescission of judgment. I also furnished what I consider
comprehensive
reasons, on application by the applicant, on 01 April
2016. The reasons for the order granted, in my view dealt
comprehensively
with all the issues and I therefore consider it the
judgment in this matter.
[2] The applicant seeks leave to appeal the judgment. He contended in
the notice of application for leave to appeal that I erred
in my
judgment, on what appears to be several grounds. The notice is not an
embodiment of clear craftsmanship. Apart from several
errors, it
employs language not particularly conventional in a Court of law. I
am also throughout the notice referred to or addressed
as "the
Learned Acting Judge S.J. Manamela".
[1]
I am not certain as to whether the "S.J." was meant to be
the initial letters of my forenames [which I do not have] or
inadvertent referral to "AJ" for acting judge. But,
evidently the words acting judge precedes the address or reference.
Further, the dismissal of the application for the rescission of
default judgment is said to have been "both wrongful and
unlawful"
[2]
and to have "failed, neglected and/or omitted to properly or at
all to read the papers filed of record in the court file".
[3]
To put it mildly, this is not a respectful characterisation of the
judgments of a court. Practitioners, no matter their level of
professional experience, have a duty and responsibility for the
language they choose to employ in their papers. They should strive
to
acquit themselves well in this regard by using proper language. One
can be creative, but this brings about added requirements
of ensuring
that the nature and extent of the creativity doesn't stray beyond
professional or court parlance. Perhaps, a certain
amount of
conservatism is warranted in
drafting, being to stick to the old and trusted, so to speak.
Often
working
from a trustworthy precedent may be a good point of departure, lest
one tread on
the
side which may appear
disrespectful to the Court. But, I will let absolutely nothing to
turn on
this.
[3] The applicant's grounds
of appeal are captured in the following passages from
the
notice:
"
1.
1.1
The
Learned
Acting
Judge
committed
a
fundamental
error
of
failing
to
take
special
note of the following basic point that -
(a)
The indulgence agreed by
between [sic] the Applicant/Defendant and
the Respondent /Plaintiff
expired on 15th June 2014;
(b)
The amount which the
Applicant/Defendant had to pay in order for him to settle the arrears
in respect of the bond repayment was
R53,245.96
[Fifty Three Thousand,
Two Hundred and Fourty [sic] Five Rand, Ninety
Six Cents];
(c)(i)
The total amount paid by the Applicant/ Defendant on 14th June 2014
was and is R53,000.00 [Fifty Three Thousand Rand) instead
of
R53,245.96.
The
R53,245.96 amount was short paid by an amount of
R245,96 which is 0.46%
of the R53,245.96.
(d)
The Applicant /
Defendant proceeded to make yet another payment in
the sum of RI
O 500.00 [Ten Thousand
Five Hundred Rand ] on 18th
June 2014prior to the
date of the issue of the Combined Summons .The latter payment
brought the total amount paid by the Applicant
/Defendant to R63,
000.00 [Sixty Three
Thousand Rand] thereby placing the
Applicant/Defendant's
credit agreement account in credit and in good standing to transcend
the arrear bracket which by agreement
of the parties was to be
paid;
(g)
Moreover and in
particular, as the Applicant /Defendant's credit agreement account
was both in credit and in good-standing, there
existed no
legal right and /or title
on the part of the Respondent /Plaintiff to ever institute civil
action against the Applicant /Defendant
based on the
self-same credit
agreement.
(i)
erred in that the
Honourable officer failed, neglected and/or omitted
to properly or at all to
read the papers filed of record in the court
file;
2.
The Learned Acting Judge S.J
Manamela accordingly misdirected himself when he adjudicated the
application for the rescission of
the default judgment, given the
issues
raised
above and which are glaring on the face of the papers filed by the
parties in the court file in particular the credit and
good-standing
status of the Applicant/Defendant credit
agreement account as at
the date of the issue of the Combined Summons.
3.
The Learned Acting Judge S.J
Manamela erred in neglecting and /or failing and /or refusing to see
the irregularity in the process
of Respondent /Plaintiff litigating
against the Applicant
/Defendant
such litigation arising from the credit agreement.
4.
The Learned Acting Judge S.J
Manamela over-emphasized the sanctity and binding effect of
agreements on the one hand and failed to
equally emphasize the fact
that the Applicant/Defendant actually put his all into seeing to it
that he demonstrated
the
performance of his contractual obligations towards the credit
agreement by maintaining
its credit status and
good-standing in conformity to the agreement reached with regard to
the arrears being made good.
5.
The Learned Acting Judge S.J
Manamela also ought to have found that given the facts as
demonstrated in the papers as at the date
of the granting of the
default judgment as well as based in the rescission application and
opposition thereof ,that there was no
basis for the institution of
the Combined Summons..
7.
In
the
prevailing circumstances it is submitted that the dismissal of the
application for
the
rescission of the default judgment was and is both wrongful and
unlawful. It is submitted that another court may come to a different
conclusion that [sic] the decision arrived at by
the Learned
Acting Judge
S. J. Manamela. Based on
the afore-going, the application for leave to appeal ought to
succeed."
[4]
Mr
VM Magwane
appeared at the hearing of this application on behalf of the
applicant. He steered his submissions away from the grounds
of appeal
as stated in the notice. His main point of contention was based on
the fact that, the applicant said he did not receive
the notice sent
to him in terms of
section 129
of the
National Credit Act 34 of 2005
.
He submitted that this should have brought doubts - equating to
triable issues - in the mind of the Court that the applicant should
be granted an opportunity to defend the matter at trial. He relied on
the decisions in
Sebola
[4]
and
Kubyana
[5]
in his submissions in this regard. In sum, he contends that the
moment a consumer say I did not receive a notice due to some
circumstances
that alone should convince the Court dealing with a
receipt or non-receipt of a notice in terms of
section 129
that there
is a
bona fide
defence. I do not agree with this
interpretation of the two aforesaid decisions. I rely on what I have
said in the judgment in respect
of those decisions. Further, the
submissions appear to craft a new case for the applicant in this
regard. The applicant as stated
in the impugned judgment
categorically said that he did not receive the notice or even the
summons because he had left the
domicilium
address. I am
satisfied with what is stated in my judgment and do not wish to add
anything thereto.
[5]
Mr
JH Mollentze
appeared at the hearing on behalf of the respondent. His submissions
were simply that this Court has to determine the
existence of
prospects of success or other grounds as stated in
section 17
of the
Superior Courts Act 10 of 2013
. He submitted that there are any
reasonable prospects of success for the appeal contemplated by the
respondent. For, the purpose
of
sections 129
and
130
of the
National
Credit Act has
been achieved. He submitted that the applicant had
already defaulted on an arrangement he made with the respondent,
apart from
his breach of the credit agreement. The applicant is not
saying what other options he would have exercised in respect of the
section 129
notice. I agree.
[6] Based on the above and my judgment, I hold the opinion that
neither the full Court of this Division or the Supreme Court of
Appeal or any other Court for that matter, would come to a different
conclusion in this matter. The application will be dismissed
with
costs.
[7] This application has a bit of history of enrolments. There were
previous enrolments and appearances on 19, 22 and 29 April
2016. At
sittings on the first two dates, the Court could not proceed due to
administrative problems, which had nothing to do with
the parties. On
the sitting of the 29 April 2016, the applicant did not appear and
costs were reserved. The applicant communicated
with the respondent
through representatives and complained about short notice in respect
of the notice of set down. At that stage
there were new attorneys
appointed by the applicant in substitution of its previous ones.
Although, I wasn't entirely satisfied
with this conduct on the part
of the applicant and its representatives in respect of the 29 April
2016, I will nevertheless make
no costs order in respect of the three
aforementioned dates. The respondent's counsel also appeared not to
be insisting on any
costs for those dates.
I
had already ordered the applicants to pay the costs for the sitting
on 13 May 2016 on an attorney and client basis. I will confirm
this
order hereunder.
[8]
Therefore, I grant the following order:
a)
application for leave to
appeal the judgment of
18
August 2015 is
dismissed;
b)
the applicant is liable
to the respondent for costs of the application;
c)
the costs awarded in
terms of b) hereof shall exclude costs in respect of the
activities
of
19 April 2016; 22 April 2016 and 29 April
2016.
d)
the
applicant is liable to the respondent for costs occasioned by the
postponement
of
the application on 13 May 2016
on an attorney and client
scale.
K.La
M.MANAMELA
Acting
Judge of the High
Court
27
May 2016
APPEARANCES
For
the Applicant:Adv VM Magwane
Instructed
by:Mapulana
Maponya
Inc
Pretoria
For
the
Respondent:
Adv JH Mollentze
Findlay and Niemeyer Inc
Pretoria
[1]
See
first
(unnumbered)
paragraph
on p 2; par 2 on p 6; par 3 on pp 7-8; par 6 on
p 8 and par
7 on p 9 of the
notice.
[2]
See par 7 on p 9 of the notice.
[3]
See par 1.1 (i) on p 4 of the
notice.
[4]
Sebo/a
&
Another
v Standard Bank
of South Africa
Limited
&
Another
(CCT 98/11)
[2012] ZACC
11
; 2012
(5)
4 SA 142
(CC).
[5]
Kubyana v Standard Bank of
South Africa Limited
(CCT 65/13) [2014]
ZACC l;
2014
(3) SA 56
(CC).