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[2016] ZAGPPHC 780
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Masenya v Firstrand Bank Limited t/a Wesbank (9455/2015) [2016] ZAGPPHC 780 (22 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NO: 9455/2015
Reportable:
No
Of
interest to other judges: No
Revised.
22/8/2016
MR
MATLOBOKO JOHNSON
MASENYA
Applicant
and
FIRSTRAND
BANK LIMITED t/a
WESBANK
Respondent
JUDGMENT
MSIMEKI
J,
INTRODUCTION
[1]
This is a rescission of judgment application. The applicant seeks an
order rescinding a judgment which was granted on 12 March
2015. He
also seeks an order condoning the late launching of the application
as the Uniform Rules of Court require and the uplifting
and
suspension of all process issued pursuant to the judgment of 12 March
2015 and costs of suit.
BACKGROUND
[2]
On 7 July 2010 the respondent and the applicant entered into an
electronic Large Instalment Sale Agreement ("the agreement")
in terms of which the respondent sold and delivered to the applicant
a certain
2010 Audi Q5
2.0T FSI Quattro (132KW) motor vehicle with
chassis number WAUZZZ8R3AA097076 and engine number CDC 113133 ("the
vehicle").
The agreement is annexure LM2 to the founding
affidavit. The total price was R817 368 48. Interest amounting to
R286 127 87 calculated
at 15.00% per annum was included. The cash
price of the vehicle was R406 935 95. The purchase price was payable
in 72 equal monthly
instalments of R11 352 34. Ownership of the
vehicle remained vested in the respondent until all amounts due by
the applicant to
the respondent in respect of the agreement were paid
in full. The respondent had the right to cancel the agreement in the
event
that the applicant failed to pay any amount due to the
respondent, take the vehicle back, sell the vehicle, keep all payment
the
applicant made and claim the balance (if any) from the applicant
as damages in terms of clause 12 of the agreement.
[3]
In breach of the agreement, the applicant failed to pay the monthly
instalments due to the respondent in respect of the agreement.
The
applicant applied for a debt review on 28 May 2014 but the debt
counsellor only prepared a debt arrangement proposal on 28
November
2014. The proposal was submitted to the respondent after
the respondent had already terminated the debt
review in terms of the
provisions of
Section 86(10) of the National Credit Act 34 of 2005
("the NCA").
Copies of the termination letters dated 25
November 2014 sent to the debt counsellor, to the applicant and the
National Credit Regulator
are attached to the answering affidavit as
annexures "LM3", "LM4" and "LM5". The
applicant, at the
time of the termination, was in arrears with the
payment in the sum of R117 775 53. This appears from the detailed
statement of
account attached to the answering affidavit marked
"LM6".
[4]
Summons was issued and same was served on the applicant on 13
February 2015 as evidenced by the sheriffs return of service which
is
annexure "LM7" to the answering affidavit. The applicant,
after receipt of the summons, failed to enter an appearance
to
defend. The Court, according to the respondent, on 12 March 2015
granted a valid and a proper order in the respondents favour.
The
order is annexure "LM8".
[5]
Advocate D. H Maluleke for the respondent, at the outset of the
hearing, informed the Court that:
1. There was no appearance on behalf
of the applicant.
2. The Respondent's attorneys served
and filed the Notice of Set Down when the applicants attorneys did
not serve and file the applicant's
replying affidavit and the
applicants Heads of Argument.
3. The Notice of Set down was received
by the applicants attorneys on 30 October 2015.
4. The matter was set down for hearing
on the opposed roll of 29 February 2016.
[6]
The application, as already alluded to, is for the rescission of the
default judgment granted on 12 March 2015. The respondent
is
challenging and opposing the application on the following grounds:
1. The applicant has no
bona fide
defence to the respondents claim.
2. Having regard to the disclosed
defence, the relief sought would be inappropriate.
3. That the rescission of the judgment
would serve no purpose.
4. That the applicant failed to
disclose certain salient and material facts.
5. That no replying affidavit was
filed dealing with the issues raised in the answering affidavit and;
6. That the cases of
Plascon Evans
Paints Ltd v Van Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634E-F
and
Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty)
Ltd
1957 (4) SA 234
(C)
at 235E-G
were, therefore,
applicable to the facts of this case.
[7]
The applicant's case is that he admits that his account with the
respondent was in arrears in an amount of R117 774 53 at the
time
that he deposed to the founding affidavit on 29 May 2015. He applied
for a debt review on 21 May 2014 in terms of
Section 86(1) of the
NCA
because he was over indebted. Distribution, according to his
debt counsellor and the debt review proposal, was effected by Payment
Distribution Agency to various creditors which included the
respondent as from 17 December 2014 to the time the founding
affidavit
was deposed to. Upon being served with a summons by the
Sheriff of the Court he immediately contacted his debt counsellor who
asked
that they be given the summons. He obliged. He was advised that
they would resolve the matter on his behalf. Although he communicated
with his debt counsellor several times enquiring about the progress
he received no noteworthy response or help.
[8]
On 25 March 2015, upon being served with a warrant of execution to
repossess his motor vehicle by the Sheriff, he immediately
telephoned
the debt counsellor. Again the debt counsellor seems not to have
given him any joy. He then sought legal assistance
and consulted with
his attorneys on 23 April 2015. His attorneys promised to write to
the respondent while he raised the money
for the case. The respondent
responded to the applicant's attorneys advising them that they would
not entertain the matter as the
contract had been cancelled. His
attorneys again addressed another letter to the respondent with a new
payment proposal which,
again, was not acceptable to the respondent
which had already advised them that the agreement between the
applicant and the respondent
had been cancelled.
[9]
The application has been brought out of time necessitating a
simultaneous application for condonation for the late filing of
the
rescission application. The applicant holds the view that he has good
prospects of success in the main action because
Sections 129 and
130 of the NCA
were not complied with and that the respondent
instituted the action against him in bad faith as it had been
receiving payment from
Payment Distribution Agency on his behalf
although such payment had not been in accordance with the agreement
between them. The
fact that he offered to pay R15 000 00 which was
more than the monthly instalment of R11 000 00, according to him,
enhanced his
prospects of success in the main action. All this means
is that he wants to pay R15 000 00 once the default judgment is
rescinded.
[10]
The issue to be determined is whether, under these circumstances, the
applicant is entitled to the relief that he seeks.
[11]
On behalf of the respondent, it is submitted that the applicant does
not have a bona fide defence to the applicant's claim.
This, because
the applicant admits that he is in arrears with the monthly payments.
He, then tenders payment of the debt. Clearly,
the applicant does not
dispute that he owes the respondent. He merely admits that he has
breached the agreement. It is this breach
which entitled the
respondent to cancel the agreement. It is submitted on behalf of the
respondent that the applicant failed to
serve and file its replying
affidavit. He also filed no heads of argument. The allegations stated
by the respondent in its answering
affidavit, according to the
submission, remain unchallenged and should, accordingly, be accepted
according to the principles enunciated
in
Plascon-Evans and the
Stellenbosch Farmers Winery cases
(supra).
The submission
seems to have merit.
[12]
In
Stellenbosch Farmers' Winery v Stellenvale Winery
(supra)
at 2350-E
Van Wyk J said:
"...It
seems to me that where there is
a
dispute
as
to
as
to the facts
a
final interdict should only be granted in
notice of motion proceedings, if the, facts
as
stated by the
respondents together with the admitted facts in the applicant's
affidavits justify such an order . ..Where it is clear
that facts,
though not formally admitted cannot be denied, they must be regarded
as
admitted."
This
was cited with approval in
Plascon-Evans and Stellenbosch Farmers
Winery
(supra).
[13]
It is noteworthy that:
1. The applicant applied for a debt
review on 28 May 2014.
2. The debt re-arrangement proposal
was prepared on 28 November 2014. Effectively it took the debt
counsellor nearly six months
to prepare the proposal.
3. The proposal was submitted to the
respondent after the debt review process, in terms of
Section
86(10) of the NCA,
had been cancelled by the respondent. Letters
of such cancellation appear to have been duly forwarded to the
applicant, the National
Credit Regulator and the debt counsellor as
already shown above.
4.
Section 129 (4) of the NCA
prohibits the re-instatement of a credit agreement which has duly
been cancelled. This agreement, in my view, has been cancelled.
Rescinding the default judgment, in my view, will have no practical
effect.
5. A Court grants default judgment on
the basis that the defendant has been notified of the plaintiff's
claim as required by the
Rules, that the defendant not having given
notice of an intention to defend is not defending the matter and that
the plaintiff,
in terms of the Rules, is entitled to the order
sought.
See, in this regard,
Lodhi 2
Properties Investment CC and Another v Bondev Developments (Pty) ltd
2007 (6) SA 87
(SCA) at [27].
[14]
The applicant, in an application for rescission of judgment, needs to
show good cause before a judgment can be rescinded.
[15]
The applicant, in the current matter, showed no interest in the
matter. He merely left everything in the hands of the debt
counsellor. The debt counsellor, too, showed no urgency in the
matter. This is because the Court is not told why it took nearly
six
months to prepare the proposal. The Court is also not told that the
agreement was cancelled before the proposal reached the
respondent.
This is evident and properly communicated to the applicant's
attorneys by the respondent's attorneys.
[16]
The applicant, surely, is well aware that he has no defence to the
plaintiff's claim. He concedes that he owes the respondent
and that
he is in arrears with the monthly payments. The applicant needs
rescission because he wants to pay the respondent. This
has never
been a defence. The applicant should simply pay the respondent.
Indeed, whatever payments are made after the agreement
has been
cancelled and judgment taken are proper payments. The applicant, in
any event, owes the respondent. The judgment does
not have to be
rescinded for the applicant to pay the respondent. The money is due,
owing and payable by him to the respondent.
There is no defence and
no reason why the applicant should not pay the respondent.
[17]
The application, in my view, should fail. Similarly, the application
for condonation for the late filing of the application
becomes
unnecessary. I am not satisfied that the applicant should pay costs
on a punitive scale.
ORDER
[18]
The following order is made:
The
application is dismissed with costs.
______________________________
M
W. MSMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA