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[2016] ZAGPPHC 911
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Hong Kong Land Investments CC and Others v Standard Bank of South Africa Limited and Another (70641/2014) [2016] ZAGPPHC 911 (21 October 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 70641I2014
DATE
OF HEARING: 11 OCTOBER 2016
DATE
OF JUDGMENT: 21 OCTOBER 2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
HONG
KONG LAND INVESTMENTS
CC
First
Applicant
KIT
MAN
POON
Second
Applicant
MEI
WAH
POON
Third
Applicant
and
STANDARD
BANK OF SOUTH AFRICA LIMITED
First
Respondent
SHERIFF
OF THE HIGH
COURT
Second
Respondent
JUDGMENT
AVVAKOUMIDES,
AJ
INTRODUCTION
[1]
This is a rescission application by the applicants pursuant to a
default judgment granted against the first applicant pursuant
to a
breach of loan agreement secured by a mortgage bond over the first
applicant's immovable property. The applicants represented
themselves. The applicants failed to file heads of argument and a
practice note as required by the practice directive of this court.
The first respondent filed its heads and practice note.
BACKGROUND
[2]
The first respondent issued summons against the first applicant as
the mortgagee, it having breached the loan agreement by failing
to
maintain the monthly instalments in terms of such agreement. The
second and third respondents were cited as sureties and co-principal
debtors. The summons was served personally upon the second applicant
as surety and on behalf of the first applicant main. The summons
was
served on the third applicant by way of service upon the second
applicant. It is commons cause that the second and third applicants
are married to each other. Having filed an appearance to defend
default judgment was granted against all three applicants.
THE
APPLICATION
[3]
The applicants submitted that they had made arrangements to pay off
the arrears with the first respondent, and despite such
arrangements,
the first respondent proceeded with the application for judgment. The
applicants submitted that they had not received
a section 129 notice
and that they had impressed this upon the first respondent. No
details are furnished as to who this was conveyed
to at the first
respondent. At the hearing of this application I was advised by
counsel for the first respondent that the applicants
had signed the
founding affidavit which was prepared by someone purporting to assist
them but that they did not know what the founding
affidavit dealt
with. They had paid someone to assist them.
[4]
The gist of the defence set out in the founding affidavit is the
absence of the section 129 notice. No proof of postage is alleged
to
exist and the applicants' constitutional rights are said to have been
infringed upon. An attack is also made on the computation
of the
certificate of balance. Lastly the applicants state that their
movables were not excused first before the ensuing sale in
execution
of the mortgaged property. The first applicant is a corporate entity
and as such is not afforded the same protection
and an individual. I
rely on the decision of
Firstrand Bank Limited v Fa/sheer and
Another
2011 (4) SA 314
(GNP) in this regard. The absence of
execution of the movable does not warrant any comment. The complaint
about the certificate
of balance is not supported by any evidence as
to why it should not have been accepted.
[5]
As at July 2014 the arrears were in excess of R145 000.00 with
monthly instalments of R42 270.37. As at the date of signature
of the
answering affidavit the arrears increased to R907 249.68 with a
similar instalment. The arrears are computed to be 21.398
months in
arrears. The summons was served on 6 October 2014 and the notice of
motion for this application appears to have been
issued on 10 August
2016. The application does not contain any allegations to support
condonation for the application being brought
so late. This
notwithstanding the application is alleged to have been brought in
terms of rule 31 (2) (b). This submission is unsustainable
given the
time period contained in the said rule.
CONCLUSION
[6]
The alleged arrangement with the first respondent is the only defence
raised by the applicants, save for the issues dealt with
above. The
applicants have not make out a proper case for the relief sought and
consequently the application stands to be dismissed.
I make the
following order: The application is dismissed with costs.
______________________________
G.
T. AWAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:
21 OCTOBER 2016
Representation
for Applicants:
Counsel:
In Person
Instructed
by:
Representation
for the First Respondent:
Counsel:
P. I Oosthuizen
Instructed
by:
S. Roux Inc.