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[2016] ZAGPPHC 955
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Visser v Nedbank Ltd (45484/2014) [2016] ZAGPPHC 955 (3 November 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
3/11/16
CASE
NO:
45484/2014
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
MARCUS
VISSER APPLICANT
AND
NEDBANK
LTD RESPONDENT
JUDGMENT
THOBANE
AJ,
[1]
This is an application for leave to appeal against a judgment and
order of this court granted on 21 April 2016. This application
is
opposed by the respondent.
[2]
The grounds of appeal are set out in the notice of application for
leave to appeal. I do not propose to traverse each one of
them as
some overlap. At the core of the application for leave to appeal is
the question whether the matter was correctly decided
by this court.
[3]
The
Superior Courts Act 10 of 2013
lays out the approach or test
thus;
Leave
to appeal
17.
(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that-
(a)
the appeal would have a reasonable prospect of success; or
(b)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments
on the matter under consideration;
It
must be mentioned from the onset that nothing in this matter, as
raised, falls within the second category or stands to be determined
on the basis of the second leg of the test. It follows that the test,
in
casu,
is whether there is a reasonable
prospect of success on appeal.
[4]
In argument before me counsel for the applicant adopted the approach
of not dealing with the grounds of appeal in a chronological
manner
as they appear in the notice of application
for leave to appeal. In
this judgment I
do not intend to do so either. I will nevertheless deal with each and
every ground raised.
[5]
I now turn to consider, briefly, the various grounds of appeal as
they appear in the notice of application for leave to appeal.
The
applicant states that the court erred in not finding in a particular
way. The details are listed in paragraphs 1.1. to 1.3.
which I deal
with below.
Para
1.1.
I
can not discern what the applicant is aggrieved at about the court's
finding to the effect that the applicant was solely responsible
for
the loading of debit orders on the overdrawn account. When the
application for rescission of judgment was argued, nothing was
pointed at by the applicant, in support of the contention that he
could not have and most importantly, did not authorize any deductions
from the account held with the respondent. Whereas the fact that any
deductions particularly those, as identified in this matter,
can only
be authorized by the applicant, it appeared to have been lost to the
applicant how that authorization can take place.
The following
perspective is crucial. Applicant himself stated, though
speculatively, that the respondent deducted, from his account,
a
debit order which ought to have been deducted, presumably, from his
other account. What is lost to the applicant is that he is
the only
person who would have details of a debit order to be paid, the
account to which it ought to be paid and the date on which
such
payment is to take place. If this court is to grant leave on this
ground, it would be on the basis that another court would
find that
the applicant did not provide details of any debit order to be
made active on the applicant's account. Based on
the evidence
tendered during the hearing of the matter, such a finding would be
inconsistent with the facts. It follows that this
ground has no
prospect of success.
Para
1
.2.
The
applicant states that service of the summons was bad in that it was
effected by affixing to the "main gate". This
is not true.
Service was effected by affixing to the "main principal door".
Nowhere in the court's judgment is reference
made to service of
process by affixing to the main principal gate. I
am prepared to assume in favour of the applicant
that he may have
meant to say service was effected by affixing to the main principal
door. Even on the generous approach, the service
is not bad in law.
It follows therefore that this ground of appeal has no prospect of
success.
Para
1
.3.
Lastly,
the applicant argues that this court erred in its finding that the
applicants did not have a
bona
fide
defence
against the respondent's claim. Since this ground of appeal permeates
most if not all of the grounds of appeal, it shall
be dealt with at a
later stage.
[6]
The next basis for applying for leave to appeal is that this court
erred in dealing with the various circumstances under which
an
application for rescission can be brought and eventually the
findings, which according to the applicant, are erroneous. In its
judgment the court dealt with the requirements for an application for
rescission of judgment. They were stated as falling under
common law,
Rule 31(2)(b)
as well as
Rule 42.
In terms of the latter, the court
indicated that the applicant had failed to highlight or point to any
error, ambiguity, omission
or mistake common to the parties. When the
application for leave to appeal was argued, the applicant's legal
representative remained
of the view that the error relied upon
was the fact that the registrar did not refer the matter to 4
of 10 open court
purely on the basis that there was no personal
service. Had the registrar been aware, so the argument went, that
service was by
way of affixing, default judgment would not have
been granted. Clearly this can not be said to be an error as defined
and as it
would apply to applications for rescission of judgment. The
registrar of this court is not barred from considering applications
for default judgment where service was effected by affixing. The
respondent when approaching court for default judgment was aware
of
the manner of service. This can not be said to be an error. I am
unable to agree with the applicant that the judgment was erroneously
sought and erroneously granted. The reasons advanced as the
basis for the submission that there was an error, do not
displace the court's view that bringing an application for rescission
of default judgment on the basis that there was an
error,
(Rule 42(1
), but failing to point it out is misplaced. I do not
believe that there are reasonable prospects that a court of appeal
will
find otherwise.
[7]
The applicant, in the application for rescission
of judgment stated as follows in paragraph
20.1.1,
“
................................
…
.............................
..........
It
is clear from the onset that the Respondent
obtained
judgment
out
of
this
Hounourable
Court
by
the
Registrar
in
the
absence
of
me
or
any
legal
representative. As
discussed
above, if the Respondent
was
duly
informed that
I
moved
out
of
the
immovable
property
before judgment was granted,
he
may
not
have
given judgment.
”
Nowhere
in the founding papers did the applicant deal with the contention by
the respondent that there was a duty on him to notify
the respondent
of the change of address. The closest the applicant came to doing so
was to state that he applied for vehicle finance
at a company that
had ties with the respondent and that by extension the respondent
ought to have known about the changed address.
I find this to be far
fetched.
[8]
As was stated in the judgment, the applicant did not specify the rule
in terms of which application for rescission of judgment
is relied
upon, by him. The applicant adopted a posture that all the approaches
were applicable in the alternative. For that reason
the court was
under obligation to deal with each one of those. This meant that the
next issue up for determination was whether
there was sufficient
and/or good cause shown by the applicant, for the rescission. The
onus rested upon the applicant for rescission
to establish that good
cause exists according to the circumstances of each case.
The courts have in the past shied
away from defining the concept
'good cause', since doing so would hamper the exercise which the
rules have purposely made very
extensive. 'Good cause' cannot be
satisfied, unless there is at the very least, evidence firstly, that
a substantial defence exists,
and secondly, that the applicant has a
bona fide desire to raise the defence should the application be
granted.
Brangus
Ranching
(Pty)
Ltd
v
Plaaskem (Pty)
Ltd
2011
(3)
SA
477
(KZN).
The requirements were adequately dealt with in the judgment
against which the applicant seeks leave to appeal.
[9]
The defenses that the applicant intimated were to be raised at the
trial and in respect of which he was of the view that there
were
prospects of success were the following;
9.1.
The
causa
of the debt. He stated that he owed nothing to the
respondent since no money was withdrawn or deposited into the
account. Further
that only interest was charged against the account.
9.2.
That the claim had prescribed.
9.3.
That the claim was not in accordance with the National Credit Act
owing to the transaction being
reckless and vexatious. The
applicant further, in relation to the National Credit Act, stated
that he did not receive the
section 129 letter.
[10]
In the founding affidavit the applicant stated that through his
attorneys he was able to uplift a section 129 letter which
purported
to have been sent by registered mail. It is this letter that the
applicant claimed to not have received. In paragraph
6.2 of the
founding affidavit applicant states that he will deal with the aspect
of the section 129 letter later in the affidavit
when discussing the
background of the matter. A proper reading of the affidavit reveals
that the applicant does not discuss the
section 129 letter under the
background heading. He does so in paragraphs 10 and 11 of the
founding affidavit, where the thrust
of his argument is that the
respondent had been aware of his changed address but nevertheless
sent the 129 letter to a wrong address.
The respondent on its part
stated in paragraph 14 of their answering affidavit that a section
129 letter was not only sent but
was collected at the registered
address. Significantly, in reply to this the applicant replied and
stated that "/
take
note
of
the
fact
that
the
respondent
sent
a
letter
in
terms
of section
129 and
123 of
the
National
Credit
Act
to
a post
box number
being
PO Box
146, Randparkrif,
2156".
[11]
The starting point of the submission by the applicant was to the
effect that he did not receive the 129 letter. When evidence
was
brought forward to indicate that the section 129 letter was sent to
the correct address, and collected by someone at the post
office, he
changed tack and argued that the amount on the letter differed with
an amount on another letter. It is this lack of
candor and
forthrightness that led the court to conclude that there was nothing
wrong with the section 129 letter given its
contents and the
fact that it was sent to the correct address and collected therefrom
particularly in circumstances where the applicant
simply "took
note" of the delivery to the correct address and the collection
from the post office. As a ground of appeal
this aspect carries no
reasonable prospects of success.
[12]
The applicant states in paragraphs 3.2. through to and 3.10. what he
believes to be erroneous findings. In the judgment, no
such findings
were made, at the very least, not as they appear in the aforesaid
paragraphs. There is no finding in the court's
judgment to the effect
that the National Credit Act is not applicable. The applicant had
argued that there was reckless credit.
In the judgment the court
dealt with the fact that the National Credit Act came into operation
after the transaction was concluded.
The NGA defines what a
pre-existing agreement is. The court found that the agreement falls
under the category of pre-existing agreement
and that it would not be
competent to assess the agreement on the basis that credit was
advanced in a reckless manner. The court
further went on to state
that there must be compliance with section 129 and pronounced its
satisfaction that there was adequate
compliance with the
provisions thereof. There was no finding in the judgment that the NGA
is not applicable.
[13]
In his founding affidavit the applicant made a passing reference to
prescription. Under the heading
"Bona Fide
Defence",
the applicant stated the following;
"As
explained
above
is
the fact
that
I owe nothing
to the
Respondent since no money
where
deposited
and/or
withdrawn out
of
the account.
I also
did
not
receive
any
money
from
the Respondent.
It seems
as if
it
is only
interest
that
was charged against
this
account.
It is
further
evident
that
the
Respondent's claim has prescribed.
If not
the
claim of
the
Respondent
is
in accordance with
the
National Credit Act, act
34
of
2005
reckless credit."
Other
than the aforementioned passing reference to prescription, there was
no substantiation of what was contended in the papers
in relation
thereto. The applicant is now arguing that the court erred in finding
that prescription would have begun to run on
16 May 2017. The
applicant goes further to submit in the notice of application for
leave to appeal that the court arrived at the
conclusion having
relied on argument before court only. Such a submission is incorrect.
The respondent dealt with prescription
in the answering affidavit
(page 84 of the pagination papers). The court noted in its judgment
that the applicant failed to state
the basis for the contention that
the claim by the respondent had prescribed. It is my view that
another court will not find otherwise.
[14]
The next ground of appeal relates to the change of address of the
applicant. The applicant submitted that another court might
find that
in applying for vehicle finance with the MFC, a separate entity, the
applicant notified the respondent of the change
of address. The
relationship between the parties was contractual and placed a duty on
the applicant to notify the respondent
of any change of
address. The 9 of 10 applicant does not dispute that there was a duty
on him to notify the respondent of
the change of address. His
contention is that in applying for finance at MFC, he discharged such
a duty because MFC is part of
a group of companies belonging to the
respondent. I disagree. It is self evident that terms of the
agreement for vehicle finance
with MFC can not be extended to apply
to the overdrawn account when it was not the intention of the parties
that it be so.
[15]
For all the above reasons, I am not
persuaded that the appeal has
prospects
of success.
[16]
I therefore make the following order;
1.
The application for leave to appeal is dismissed with costs.
___________________________________
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT