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[2016] ZAGPPHC 1007
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Mabondo v Standard Bank of South Africa (906/2015) [2016] ZAGPPHC 1007 (2 December 2016)
IN THE HIGH COURT OF
SOUTH AFRICA GAUTENG DIVISION, PRETORIA
In
the matter between:
CASE NO: 906/2015
2/12/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
KASHAN
RAMOKOKA
MABANDO
Applicant
And
STANDARD
BANK OF SOUTH AFRICA LIMITED
Respondent
JUDGMENT
MAIER-FRAWLEY
AJ,
[1].
This application is for the rescission of a default judgment granted
against the applicant on 17 March 2015 (the judgment).
It appears to
have been brought under Rule'.32(1)(b) of the Uniform Rules of Court
(the Rules).
[2]
The applicant, Mr. Mabando appeared in person at the hearing of the
matter. At the outset of the hearing, the Court was
informed by
both the applicant and counsel appearing for the respondent, of the
recent death of the applicant's attorney of record,
Mr. Maseka, of
Jake Maseka Attorneys (the deceased). The respondent filed an
affidavit in which it was indicated that the Law society
appointed
Mabuse Attorneys to take over the deceased's files. However, Mabuse
Attorneys claimed that they did not receive instructions
or the
deceased's files. According to the applicant, he was given telephonic
and written notice via email that the matter had been
enrolled for
hearing in court. Effectively, he was afforded less than 10 days'
notice of the date of hearing. This was not disputed
on behalf of the
respondent. Notwithstanding, the applicant bravely decided to conduct
his case in person. This then explains why
the applicant failed to
file a practise note and written heads of argument in compliance with
the Practise Manual of this division.
[3]
The background to the granting of this judgment is as follows. The
applicant and the respondent concluded a written home loan
agreement
in terms of which the respondent loaned and advanced monies to the
applicant, which loan was secured by a covering mortgage
bond in
favour of the respondent. In terms of the mortgage bond agreement,
the applicant assumed responsibility for payment of
the monthly
insurance premiums as well as certain assurance premiums in respect
of the property. The amount loaned was R321 720.80
and was repayable
in 240 monthly instalments, each in the amount of R1,917.98.
[4]
After the applicant fell into arrears with his monthly instalments
and on 26 October 2014, the respondent sent a notice in terms
of
Section 129 read together with Section 130 of the National
Credit Act, No 34 of 2005 (NCA) to the applicant for payment
of the
arrears (s129 notice). The s129 notice was delivered by a courier to
the applicant's chosen domicilium address, being Erf
1491, The
Orchards Extension 11, also known as 88 Hulton Street, The Orchards,
Pretoria (the property), where the applicant still
resides. In terms
of the courier's delivery report, a copy of which was annexed to the
respondent's answering affidavit, a person
by the name of 'Makhaya'
accepted delivery of the notice.
[5]
On 3 January 2015 summons was issued on account of the applicant's
breach of the terms of the loan agreement in not adhering
to the
monthly repayments. The plaintiff claimed
inter alia
payment
of the full balance outstanding in the sum of R50,409.11 and an order
declaring the property executable. As at 4 December
2014, the arrears
amounted to only R21, 899.52.
[6]
On 8 January 2015, the summons was served by the Sheriff of Court at
the property by affixing a copy of the combined summons
to the
principal gate of the property. According to the Sheriff's return of
service, 'after diligent search and enquiry no other
manner of
service was possible at given address.' The applicant failed to enter
an appearance to defend and on 17 March 2015, the
respondent obtained
default judgment against the applicant for payment of the outstanding
balance owing, an order declaring the
property executable and further
relief. On 10 April 2015 this court issued a Writ of Execution in
respect of the immovable property.
On 20 April 2015, the Writ was
served on the applicant at the property, again by affixing it to the
principal gate. The Sheriff's
return of service does not state
whether any other manner of service was possible at the address.
[7]
According to the applicant, he became aware of the judgment on 31
March 2015 when he discovered an envelope at his gate which
contained
a letter notifying him of the judgment granted against him.
[8]
The applicant states that he did not receive the s129 letter, which
was served on Makhaya, the applicant's nine year old son,
on Sunday
the 26th October 2015, being a date on which the applicant was away
from home. According to the applicant, Makhaya might
have misplaced
the letter or might have forgotten to bring it to the
applicant's attention. Had he received this notice,
he would have
reacted thereto by contacting the respondent to make arrangements for
settlement of the amount due. According to
the applicant, he also did
not receive the summons, which was served by affixing a copy thereof
to his main gate. However, his
residential premises are accessible to
anyone in that the gate is 'not locked'. The Sheriff's
return does not say why
the summons was left at the gate or that
there was no other method of serving the summons or that there was no
one at the premises
to serve the summons upon.
[9]
Mr Mabando submitted during oral argument that it was unclear from
the Sheriff's return how such a thick document was 'affixed'
to the
main gate. The combined summons together with annexures, comprise
some 42 pages, copies of which were attached to the answering
affidavit of the respondent in the present proceedings. Had the
summons been properly affixed to the gate, he would undoubtedly
have
seen it. Furthermore, and considering that the property is situated
in a busy street, which school children frequent, it is
entirely
possible that any one of the school children might have picked up the
summons. Had the summons been dropped inside the
property, then
'chances are one would have found it.' He stressed that he did not
wilfully ignore the summons, as stated in his
founding affidavit, and
explained that he could not have reacted to something which he did
not receive and had no knowledge of.
Had he received the summons, he
would have reacted to it.
[10]
The applicant admits being indebted to the respondent but states that
he fell into arrears with his bond repayments due to
the fact that he
became unemployed. According to the applicant, he stands to acquire
funds from a retirement annuity
with which he intends to
settle the debt, either wholly or in part. These funds are not yet
available although the applicant expects
them to become available
once he has resolved his 'tax issue' with the receiver of Revenue.
In addition, the assurance policy
in respect of the property was
cancelled in October 2011 and therefore the outstanding balance falls
to be reduced by the amount
of assurance premiums charged to the
applicant's bond account after that date.
[11]
According to the applicant, the value of the property is
approximately R700 000.00 whilst the total amount due on the mortgage
as
at date of issue of summons, was R56 181.93. As indicated earlier,
the amount in arrear at the time of issue of summons was only
R21
899.52. An order declaring the property especially executable would
cause him great prejudice by virtue of the fact that that
he would
lose his primary residence, where his family, including young
children, reside.
[12]
In the answering affidavit, the respondent indicated that the
last payment received from the applicant was an amount of R1500.00
on
22 November 2014. In reply, the applicant produced payment deposit
slips evidencing further payments of R3000.00 and R2000.00
that were
made by him on 27 August 2015 and 11 September 2015 respectively,
which evidenced his intention to settle the debt.
[13]
An application under Rule 31(2)(b) must be brought within 20
days after a litigant became aware that judgment has been granted
against
him. It is clear that the application was brought timeously.
As indicated, the applicant stated that he first became aware of this
judgment on 31st March 2015. The application for rescission was
served on 9th April 2015.
[14]
The
pre-requisites for the grant of rescission in terms of rule 31(2)(b)
are set out in
Colyn
v Tiger Food Industries Ltd f/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA)
(2003) 2 ALL SA 113
, at para 11
[1]
:
"The applicant
must show cause why the remedy should be granted. That entails (a)
giving
a
reasonable explanation of the default; (b) showing
that the application is made bona fide; and (c) showing that there is
a
bona fide defence to the plaintiff's claim which prima facie
has some prospectus success. In addition, the application must be
brought
within 20 days after the defendant has obtained knowledge of
the judgement".
[15]
It
is trite that a notice in terms of section 129(1)(a) of the National
Credit Act 34 of 2005 (NCA) is a mandatory, statutory procedure
before launching litigation proceedings as set out in
Nedbank
Ltd
&
Others v
National Credit Regulator2011
(3)
SA 581 (SCA).
[2]
The requirement
that a credit provider provide notice in terms of section 129(1)(a)
to the consumer must be understood in conjunction
with section 130,
which requires delivery of the notice. A credit provider seeking to
enforce a credit agreement must aver and
prove that the notice was
delivered to the consumer.
[3]
[16]
Incidentally, the NCA has been amended in terms of the National
Credit Amendment Act 19 of 2014, by the introduction of section
129(5) therein. The amendment took effect on 13 March 2015. Section
129(5) now deals with the manner in which notice must be delivered
to
a consumer, namely, by registered mail or delivery to an
adult
person at the location specified by the consumer (own emphasis). As
at date of service of summons in this matter, the amendment
had not
yet come into operation. The
NCA,
in its pre-amended form, did
not deal with the manner in which notice must be delivered to the
consumer. However, it is inconceivable
that delivery to a nine year
old child could ever suffice. Even Rule 4 of the Uniform Rules of
court requires service of documents
upon persons who are apparently
over the age of 16 years.
[17]
In
Sebola v Standard Bank of South Africa Ltd
2012 (5)
SA 142
(CC) at paras 74-75 (Sebola judgment), the constitutional
court held that for a section 129(1) notice to be effective, the
credit
provider should take reasonable measures to bring the notice
to the attention of the consumer. He must therefore present proof on
a balance of probability that the notice
reached
the
consumer.'(own emphasis)
[18]
Simply put, since the Sebola judgment, there is a heavier
burden on a credit provider to ensure that the notice is sent and
delivered
to the defaulting debtor. The credit provider has to prove
on a balance of probabilities that the notice was delivered
and
came to the attention
of the defaulting consumer. (own emphasis)
[19]
The respondent asserts that the s129 notice was delivered to
the applicant's residence via courier. The respondent however
disputes
that the applicant did not receive notice thereof without
providing any gainsaying evidence to refute the applicant's
allegation
that the notice was served on a nine year old child who
either misplaced it or forgot to give it to him - either way, the
notice
never came to the applicant's attention, as is required for
purposes of 'delivery' thereof. In the light of the authorities
quoted above and by virtue of the facts of this matter, I am of the
view that the respondent has failed to prove on a balance of
probabilities that the s129 notice came to the attention of the
applicant.
[20]
I am
persuaded that the applicant has furnished a satisfactory explanation
for his default. The applicant has also established that
the
respondent failed to give him proper notice under the NCA. He has
therefore set out a bona fide defence.
[4]
Accordingly the application for rescission of judgment must succeed.
[21]
In the result, the following order is granted:
i) Default judgment
granted against the applicant on 12 September 2013 is hereby
rescinded and set aside;
ii) The proceedings
instituted under case number 906/2015 are suspended pending
compliance by the applicant/plaintiff with the provisions
of section
129 read with
section 130
of the
National Credit Act 34 of 2005
;
iii) The costs of the
application will be costs in the cause.
___________________
A.
MAIER-FRAWLEY
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing
29 November 2016
Date
of judgment:
1 December 2016
Date
judgment delivered:
2 December 2016 .
For
the Applicant:
Mr. Mabando (in person)
For
the Respondent:
Adv JF Winnertz
Instructed
by:
Haasbroek & Boezaart Inc, Ref: Mr. C. Gerber
[1]
Albeit that Colyn's case dealt with the requirements for rescission
under the common law, the requirements under
Rule 32(1)(b)
are the
same.
[2]
See too Sebola v Standard Bank of South Africa ltd
2012 (5) SA 142
CC at paras [55], [57], [172] and [87]
[3]
See Sebola supra at paras [74] and [175]
[4]
See Nkata v FirstRand Bank Limited and Others
[2016] ZACC 12
at para 18