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[2016] ZAGPPHC 668
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Maria v Nedbank Limited ; In re : Nedbank Limited v Foley (80251/2014) [2016] ZAGPPHC 668 (4 August 2016)
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Certain personal/private
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IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG
DIVISION,
PRETORIA
CASE NO:
80251/14
DATE:
4 AUGUST 2016
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In
the matter between:
FOLEY
TANIA
MARIA
Applicant
(ID
NO 640…)
and
NEDBANK
LIMITED
Respondent
(REG
NO
1951/000009/06
)
IN
RE:
NEDBANKLIMITED
APPLICANT
AND
TANIA
MARIA NORA FOLEY RESPONDENT
1.
This is an application for rescission of the judgment granted by
Preller J on 12 March 2015 against the applicant for payment
of the
amount of R 1581
173.82
for monies lent and advanced to the applicant that were secured by
way of a mortgage bond over the applicant's property
which was
declared executable.
2..
Pursuant to this Order, the applicant's property was sold in
execution but the transfer has been suspended in view of the
service
of this application for rescission.
3.
The current application for rescission was launched on 15 September
2015 notwithstanding that the applicant had been advised
that
judgment would be sought via e-mail on 18 February 2015 and the
notice of set down was served on her on 24 February 2015,
some weeks
prior to the hearing on 12 March 2015 (although this had been said
to be 27 February 2015 in the return of service
on the set down).
This notwithstanding, the applicant, an attorney, failed to enter a
notice of intention to defend or to appear
on the date of the
hearing and thus default judgment was entered against her as
aforementioned.
4. The
application for rescission is brought in terms of Rule 42 on the
basis that it was erroneously sought and granted. The grounds
upon
which this is stated are as follows:
4.1.
The averments in the founding affidavit are hearsay as the
deponent does not have personal knowledge of the facts upon
which
the claim is based, namely the status of the applicant's account;
4.2.
The applicant did not receive the notice of motion as it was
served at the incorrect address;
4.3.
The applicant did not receive the Section 129 notice which
was also sent by registered post to the incorrect address;
4.4.
The
respondent no longer has
locus
standi
in
that it has sold
the
applicant's debt to Greenhouse Funding (pty) Ltd pursuant to a
securitization agreement.;
4.5.
The
property executed
against
is
her primary residence and
her
eviction would breach her Constitutional rights to housing;
4.6.
Reckless credit was
afforded to her in breach of the National Credit Act;
4.7.
Disputes of fact with regard to the amount owing and the
veracity
of
the aforementioned defences preclude a judgment on the papers;
5.
I will deal with each of these defences in tum.
6.
Hearsay
6.1.
The deponent to the founding affidavit has averred that although she
is a Manager in the Home loans litigation department, she
has under
her control and in her possession all the files and documents
relating to the respondent's home loan account and
has access to
the applicant's system and computer records relating to the
applicant's account.
6.2.
In
Schackleton Credit Management v Micrpzone Trading 88
cc
and another
2010 (5) SA 112
(KZP)
it was held at paragraph
13 that:
"First
hand knowledge of every fact which goes to make up the
applicant's cause of action is not required, and.... Where the
applicant
is
a
corporate
entity, the deponent may
legitimately rely
on
records
in
the
company's
possession for their
personal
knowledge
of
at
least
certain
relevant
facts
and
the
ability to
swear
positively
to
such facts."
6.3.
I am satisfied that although the deponent is not the account
manager,
she has sufficient knowledge of the facts to depose to the affidavit.
7.
Service of the Notice of Motion
7.1.
The notice of motion was served at the applicant's chosen
domicilium
address set out in clause 18.1 read with clause 2.2.1O where
the property is defined as the remaining extent of PTN 1 of erf
2014
Northcliff, Johannesburg situated at[ 2.. Rocky Northcliff.
Johannesbu
r
g].
7.2.
In terms of clause 18.3 of the mortgage bond, it is provided
that
unless the respondent is informed of an alternative address in
writing as set out in clause 18.2, service of any
process will
be
regarded as having been properly served at the
domicilium
address
set
out
in
the
agreement.
7.3.
The
notice
of
motion
with
annexures
was
served
at
[
2..Rocky
St
Northcliff] by
affixing
same to
the main
outer
door.
7.4.
The applicant maintains
that [2..
Rocky St Northcliff] does not
exist and
that the proper address is[
3..
B Rockey Drive N
orthcliff.]
She also states that the latter address is a pan-handle and thus
it would not be possible to affix the notice
of motion
and
annexures to the outer door.
7.5.
However, the notice of motion and annexures must have come to
the applicant's attention as she states in her reply that:
"I
cannot recall how and when I first got to know of the main
application of the
respondent other than on an
informal basis, and I humbly submit to the above Honourable
Court that it in any event will not rectify the fatal defective
service of
the Sheriff."
7.6.
That the notice of motion and annexures indeed came to the
attention of the applicant furthermore is confirmed by the fact
that
subsequent hereto, the applicant entered into a payment
arrangement with the respondent. At no stage did she take any
steps
to file a notice of intention to oppose or to oppose the
application. She also took no steps to secure debt restructuring.
7.7.
Moreover, the service of the application was not defective-
it was served at the applicant's chosen
domicilium
and
the applicant did not inform the respondent of the correct address
as required in terms of clause 18.2 of the mortgage
bond until
after the application had been launched. Hereafter and having been
informed of the correct address, the notice of
set down for 27
February 2015 was served at her new
d
omicilium
address on 24 February 2015. As service of an application is to
inform the respondent of the application, this was achieved.
As
judgment was entered where service of the application was
ex
facie
the bond documents at the
d
omicilium
address, the judgment was not erroneously granted.
7.8.
The applicant complains that she was not afforded sufficient
time between the service of the notice of set down to engage an
attorney
to attend to her matter, but, she was informed hereof by
e-mail on 18 February 2015 and that the date of the hearing would
be 12 March 2015 (not 27 February 2015 as set out in the notice
of set down served according to the return of service.)
7.9.
This
notwithstanding, the applicant took no steps to serve a notice of
intention to oppose. On 27 February 2015, the date
of the
hearing reflected in the return of service of the notice of
setdown, the applicant sent an e-mail to the respondent
responding to its earlier e-mail of 18 February 2015 some 9 days
earlier, disputing that she was in breach of the payment
arrangement and stating that she had just that day received the
notice of set down in her postbox. She stated that:
"My
understanding of the rules of Court is that I am entitled to
oppose the application and thereafter file
an answering
affidavit. Unless the rules of Court have changed, then with
respect your notice of set down is premature.
A notice of
intention to oppose the application will be served on your
offices during the course of next week.•
7.10.
The respondent responded on 9 March 2015 reiterating that the
applicant had failed to adhere to the payment arrangement entered
into on 24 November 2015 to pay R 41 000 per month commencing
from December 2014 until the arrears were settled in that,
save
for the December 2014 payment, she had failed to make any
further payments. In the circumstances the applicant was told
that
the matter had been set down for hearing.
7.11.
Knowing
full well that the applicant intended to proceed with the hearing
scheduled for 12 March 2015, the applicant still failed
to serve
the notice of intention to oppose she had stated she would serve
some 10 days earlier in her e -mail dated 27 February
2015 or to
take any steps to attend the hearing or to brief counsel to so
appear. She states that she did not have sufficient
time to do so.
7.12.
The applicant's conduct in this regard must be judged on the
basis that she is an attorney and would have known full well that
should she fail to take such steps, default judgment would be
granted against her.
7.13.
It is trite that in seeking rescission of a default judgment
in terms of Rule 31 or the common law, the applicant is required to
provide a reasonable explanation for her default which she has
failed to do, although there is authority for the proposition
that
where rescission is sought on the basis that the judgment was
erroneously granted, this is not required.
7.14.
But as I have said, I am not satisfied that the judgment was
erroneously granted as it was served at the chosen
domicilium
address.
8.
The
Section 129 Notice
8.1.
In terms of the National Credit Act 34 of 2005 (" the Act")
it is required that a debtor be informed of his/her
rights to apply
for debt restructuring by the personal service of a notice to this
effect or by dispatch thereof by registered
post to the debtor's
domici/ium
address.
8.2.
The respondent dispatched the notice to the applicant by way of
registered post to her
domici/ium
address prior to her
informing it of the change to such address as set out above. The
notice wasthus correctly dispatched as
required by the
Constitutional Court in
Sebo/a
and
Another v
Staml@rd
Bank
of
South
Afrlg•
Ltd
and
Another
2012(5)SA
142
(CC).
8.3.
In any event, in terms of section 130 of the Act, the non-delivery
of a section 129 notice is not an absolute defence to
the
respondent's claim for payment and merely requires that the matter
be stayed pending the delivery of the requisite notice.
8.4.
Moreover, it is incumbent upon the applicant to satisfy the Court
that she would have availed herself of and qualified
for debt
restructuring had she been informed thereof.
8.5.
The applicant entered into an arrangement with the respondent to
repay the arrears on her account but failed to adhere
to that
arrangement. She thus was afforded an opportunity to enter into an
arrangement to cure her breach of her mortgage
bond, but she
failed to avail herself of this opportunity (although I am
mindful that no arrangements were made for her to
restructure her
payments over a longer period).
8.6.
In the circumstances I am satisfied that the judgment was not
erroneously granted for want of compliance with section
129 of
the Act.
9.
Securitization
9.1.
There is no substantiation for this defence which is pure
speculation and conjecture on the basis of the bald assertion
that
the respondent has sold its debts to Greenhouse Funding.
9.2.
The averment was denied by the respondent and there has been no
further substantiation hereof by the applicant in reply.
10.
Reck-less Credit
10.1.
The applicant alleges that the respondent failed to comply with
section 80(1) (a) of the Act prior to affording her credit
in
terms of the mortgage bond averring that no type of assessment was
done regarding her credit worthiness .
10.2..
Failure by a credit provider to comply with the peremptory provisions
in section 80(1) of the Act renders an agreement
to afford credit
to such a consumer liable to be set aside by the Court in terms
of section 83 of the Act.
10.3.
However, on 11 June 2011 the applicant completed and signed a
written agreement of loan and an application for a home
loan in
terms of which the respondent assessed the applicant's financial
position and whether she could afford the home loan
applied for by
her. She stated that she owned immovable property, was employed as
a legal advisor to AdvTech Group and earned
a net income of R43
545.88, which was confirmed by her bank statements. A credit check
was performed to determine if she had
other credit agreements or
if any judgments had been granted against her.
10.4.
In the circumstances the applicant would be precluded, in terms of
section 81(4) of the Act from setting the loan and
mortgage bond
agreements aside.
11.
Eviction
11.1 The
applicant
avers
that the property
executed
against
is
her primary residence
and accordingly her eviction would be contrary to her right to
housing guaranteed in the Constitution.
However, I agree with
the respondent that this right to housing does not encompass a
right to live in a house worth in
excess
of R2
million house which she is no longer able to afford to pay for.
In this respect, it is pointed out that pursuant to
the judgment
the applicant's house was sold by way of public auction for R 2.3
million.
(See
FirstRand Bank Ltd v Folcher and
Another, and Similar
Matters
2011
(4)
SA
314
(GNP))
11.2.
The applicant was, when the judgment was granted, in
arrears in excess of 15 months and was at the time the
application
was launched in arrears in the amount of R 206
874. 15 ( which was subsequently reduced prior to the
judgment by
the applicant's payment of R 41 000 made pursuant
to the repayment arrangement entered into by her. However,
she only
made one such payment and thereafter failed to adhere
to the payment arrangement. In the circumstances I am
satisfied
that the respondent complied with the requirements
set out in the Practice Manual as prescribed in the matters
of
Folscher
supra
at
p
315
E to 316B,
Standard
Bank of South Africa Ltd v
Saunderson
and O
thers
2006 (2) SA 264(SCA)
at paragraph 27;
Nedbank
Ltd
v
Jessa and Another
2012 (6) SA 166
(CC) at paragraph
12;
Standard
Bank
v
Dawood
2012 (6)
SA
151
(WCC)
at
para 37
and
Nedbank
Ltd
v
Martinson
2005(6)
SA
462(w) at
para
33.1).
11.3.
The amount of her indebtedness has also been reduced by the sale of
the property subsequent to the judgment.
12.
Di
spute of Fact
12.1.
The applicant has failed to demonstrate a serious or material
dispute of fact that requires the ventilation at a trial.
Although
it is true that the parties entered into a payment
arrangement to afford the applicant an opportunity to rectify her
default,
she failed to adhere to that payment arrangement and the
respondent accordingly proceeded to set the matter down for
judgment.
12.2.
The applicant was informed hereof by way of e- mail affording
her a reasonable time to attend to the matter and serve a notice
of intention to oppose. One would have thought that the service on
her of the notice of set down by sheriff hereafter would
have
galvanized her into action but it did not.
12.3.
It was only the sale of her property by public auction
pursuant to the judgment that she was galvanized into action.
12.4.
However, the defences raised by her are spurious and she has
failed to raise a real dispute as to the amount claimed or to the
declaration of her property especially executable pursuant to the
mortgage bond.
12.5.
Indeed, the essential facts
are common cause:
12.5.1.
The amount of the debt at the time of the judgment save
that one payment had been made towards the arrears;
12.5.2
The fact that the notice of motion and set down
were served at the applicant's chosen
domicilium;
12.5.3.
The applicant failed to
file a notice of intention to oppose or to appear at the
hearing.
12.6.
Accordingly, the Court was
justified in terms of the well- known principles laid down in the
case of
Plascon-/Evans
Paints
Ltd
v
Van
Riebck Paints Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 643-5 to
grant judgment.
12.7.
The respondent has denied that she was in breach of the
mortgage bond as R700 000 was available in her access bond to meet
the
installments due thereunder. The respondent's counsel disputed
that the fact that her bond was in credit negated her obligation
to
continue making her monthly installments; it just rendered her
outstanding balance in respect of which interest was levied
reduced. However, I do believe that had the applicant wished to do
so, she could have accessed those funds to meet her installments.
The difficulty is that her arrears exceeded this amount and thus
she remained in breach rendering the full amount outstanding
owing.
1.2.8
The applicant has thus not raised serious and genuine
disputes of fact which would have precluded judgment had she
filed an
answering affidavit. These disputes also do not warrant
my not making a finding on the papers in this matter and
referring
this matter to trial or the hearing of oral evidence.
12.9.
In the circumstances I am not satisfied that the judgment
was erroneously granted.
12.10.
Moreover, I believe that there is a serious non-joinder of the
person who purchased the applicant's house on the auction to these
proceedings and do not believe that rescission could be granted,
had I been mindful to grant it, without the joinder of such
party
and the Sheriff.
12.11.
I accordingly dismiss the
applicant's application for rescission with costs.
Applicant's
attorney C A Schieman; Counsel J Brenkman Tel no; 012 347 2446
Respondent
attorneys DSRM Attorneys; Counsel J Minnaar Tel no; 011447 8478
S,M
WENTZEL
Acting Judge of the
High Court of South Africa Gauteng Division, Pretoria