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[2016] ZAGPPHC 1055
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Costa and Another v Standard Bank of South Africa Limited (63765/2012) [2016] ZAGPPHC 1055 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 63765/2012
15/12/2016
In
the matter between:
NORBERTO
JOSE
DOS
First
Applicant
SANTOS
COSTA
ANA
PAULA RIBEIRO
GONCALVES
Second
Applicant
COSTA
and
THE
STANDARD BANK OF
Respondent
SOUTH
AFRICA LIMITED
JUDGMENT
De
Kok. AJ
1.
This is an application for the rescission of a default judgment
granted in favour of the respondent, Standard Bank Ltd ("Standard
Bank") against the first and second applicants (Mr and Mrs
Costa) in an amount of R1 310 564.44 together with interest and
costs.
2.
The application was heard together with applications for the final
sequestration of the estates of Mr and Mrs Costa under case
number
75020/2014 and 74955/2014.
3.
The background facts and the cause of action advanced against Mr and
Mrs Costa are dealt with in the judgment relating to the
sequestration applications and I do not repeat them herein.
4.
Mr and Mrs Costa must show
"good cause". In
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
[1]
it was held that "
...the Courts generally
expect an applicant to show good cause by (a) giving
a
reasonable explanation of
his default; (b) by showing that his application is made bona fide;
and (c) by showing that he has
a
bona fide defence to the
plaintiff's claim which prima facie has some prospect of success..."
5.
The summons was served by way of publication in the Citizen
newspaper, and after Standard Bank had obtained an order authorising
such substituted service. Mr and Mrs Costa contend that they did not
read such publication and that they first became aware of
the action
when their personal banking facilities were frozen as a result of the
provisions sequestration orders obtained against
them (which orders
were also obtained without their knowledge). This is not effectively
disputed by Standard Bank and constitutes
a reasonably acceptable
explanation for their failure to defend the action.
6.
It cannot be contended that their defence is not
bona fide
-
in the sense of one which they seriously intend to advance on the
merits, as opposed to a mere delaying tactic.
7.
It remains to be considered
whether they have disclosed a
prima
facie
defence. The test
that they must meet is described in the oft quoted decision in
Grant
v Plumbers (Pty) Ltd
[2]
1949 (2) 470 (0) as
follows:
"It is
sufficient if he makes out
a
prima facie defence in the
sense of
setting
out averments which, if established at the trial, would entitle him
to the relief asked for."
8.
The essence of the defence advanced by Mr and Mrs Costa is that
Kensington is not indebted to Standard Bank in the amount claimed
(and that their accessory liability in terms of the former
section
26(5)
of the
Close Corporations Act, 69 of 1984
thus does not arise)
because Kensington borrowed these monies in terms of an existing loan
agreement, which was not terminated
by Standard Bank after
cancellation of the mortgage bond which served as security for the
loan, and that Kensington continued to
make monthly repayments in the
agreed amounts.'
9.
In my view these allegations, if proven at trial, would constitute a
defence
to
the cause of action advanced by Standard Bank.
10.
If follows that the default judgment must be rescinded.
11.
This is not a case where the applicants for rescission are seeking an
indulgence and should therefore bear the costs of the
application,
even if successful. In my view it is appropriate that the costs of
this application should follow the result of the
trial in the action.
12.
I make the following order:
(1) The default judgment
granted against the applicants on 19 August 2013 is rescinded;
(2) The costs of this
application are costs in the cause.
___________________
A
DE KOK
Acting
Judge of the High
Court,
Gauteng Division,
Pretoria
Date
of hearing
: 30 November 2016
Date
of judgment
: 15 December 2016
Appearances
For
applicants: Mr G Kairinos SC instructed by E Da C Luiz Attorneys c/o
Jansen and Jansen Inc.
For
respondent: Mr R Raubenheimer instructed by Vezi de Beer Inc
[1]
2003 (6) SA 1
(SCA) par 11
[2]
1949 (2) SA 470
(0) at 467-477