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[2015] ZAGPPHC 40
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Makhudu and Another v Standard Bank (28822/11) [2015] ZAGPPHC 40 (5 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NUMBER:
28822/11
DATE: 5 FEBRUARY
2015
NOT REPORTABLE
In the matter
between:
CALVIN
MOGALE
MAKHUDU
............................................................................
FIRST
APPLICANT
ELSIE SEWELA
MAKHUDU
............................................................................
SECOND
APPLICANT
and
STANDARD
BANK
.........................................................................................................
RESPONDENT
JUDGMENT
MOSEAMO, AJ
[1] This is an
application for rescission of judgement obtained by the respondent
against the applicants in their absence on the
28 July 2011 in terms
of Rule 42 of the Uniform Rules of Court.
[2] This matter
relates to a mortgage bond registered over the property of the
applicants registered as ERF 1169 Norken Park Extension
2 Township,
Registration Division IR, Gauteng. It is common cause that the
applicants fell into arrears with their monthly bond
repayments. The
respondent issued summons and when applicant failed to file Notice of
intention to defend, respondent obtained
default judgment.
[3] The grounds on
which the applicant relies for bringing this application are as
follows (a) that they did not receive the summons
in this matter; (b)
did not receive Notice in terms of section 129 of the National Credit
Act (section 129 notice).
[4] The respondent
opposes the application on the basis that summons and section 129
notices were served on the applicants. It is
contended that the
respondent followed the requisite procedure in serving both summons
and the section 129 notice.
[5]
The respondent also
raised
an issue
with
regard
to
the fact that the applicants failed to file a confirmatory affidavit
of the second applicant. The applicants then in their replying
affidavit filed the confirmatory affidavit and indicated that the non
compliance was as a result of an oversight. In my view the
respondent
will not suffer any prejudice as a result of the late filing of the
confirmatory affidavit. I therefore condone the
late filing of the
confirmatory affidavit.
BACKGROUND
[6] Respondent
obtained default judgement against the applicants on the 28
th
July 2011. The applicants first became aware of the judgement when
they discovered that their property was to be sold in execution
by
the sheriff on the 27 October 2011.First applicant met with the
attorneys for the respondent after he was referred to them by
the
respondent. The respondent’s attorneys advised him to pay 50%
of the amount in arrears in order to avoid the sale in
execution. He
paid the amount and the sale in execution was cancelled.
[7] First applicant
was again informed that their property was scheduled to be sold in
execution on the 27 September 2012. He then
took out a loan and
settled the arrears in order to stop the sale.
[8] The applicants
fell again into arrears with the monthly instalments after the first
applicant lost his job. They were once again
informed of another sale
in execution of their property which was scheduled to take place on
the 4
th
December 2013. First applicant entered into
negotiations with the respondent and the sale was cancelled.
[9]
First applicant approached his current attorneys of record
immediately after the respondent informed him of another sale in
execution scheduled for the 9
th
February 2014. He was advised by his attorneys of record to bring an
application for rescission.
CONDONATION
[10] The applicants
brought an application for condonation for the late filing of this
application. The reasons provided by the
applicants for the delay in
bringing this application are as follows: (a) their erstwhile
attorneys failed to advise them to bring
an application for
rescission of judgment earlier; (b) the applicants fell into
financial difficulties when the first applicant
lost his job.
[11] Uniform rule 27
provides for the condonation of the non-compliance with the rules
where good cause is shown.
[12] In Federated
Employers Insurance Co. v McKenzie
1969 (3) SA 361
at 362 F-G the
main principles governing condonation were outlined. It was stated
that the factors to be weighed by the Court include
the degree of
non-compliance, the explanation therefor, the importance of the case,
the prospects of success, the Respondent’s
interest in the
finality of his judgement, the convenience of the court and the
avoidance of unnecessary delay in the administration
of justice.
[13] In Uitenhage
Transitional Local Council v South African Revenue Services
2004 (1)
SA 292
(SCA) at 297 para 6, the court stated that ‘condonation
is not to be had merely for the asking; a full detailed and accurate
account of the causes of delay and their effects must be furnished so
as to enable the Court to understand clearly the reasons
and to
assess the responsibility. It must be obvious that, if non-compliance
is time related then the date, the duration and the
extent of any
obstacle on which reliance is placed must be spelled out.’
[14] The applicants
brought an application for rescission of judgement in terms of Rule
42 (1). Although the abovementioned rule
does not specify the
time-limit within which the application for rescission of judgment
must be brought, the applicant must bring
the application within a
reasonable time (see First National Bank of South Africa Ltd v Van
Rensburg NO: In re First National Bank
of Southern Africa Ltd v
Jurgens
1994 (1) SA 677
(T) 681 B-G.)
[15] With regard to
the applicants’ first reason that their erstwhile attorneys
failed to advise them to bring an application
for rescission of
judgment earlier. The negligence of the applicant’s attorney is
however not in itself a ground for rescission.
See Tshabalala and
Another v Peer
1979 (4) SA 2
7 (T) 30 TPD para A. The second reason
provided by the first Applicant is that as a result of him losing his
job he struggled financially.
He approached his attorney of record as
soon as he started working. He did not wilfully fail to bring this
application within the
required time limit.
[16] Although the
applicants do not indicate the date on which they became aware of the
default judgement, it can however be concluded
that the applicants
were aware of the default default judgement as at the 27
th
October 2011 being the date on which the the first sale in execution
was scheduled to take place.
It is common cause
that the application for rescission of judgment was served on the
Respondent on the 5
th
February 2014, approximately 27
months after applicants became aware of the judgment.
[17] There are huge
gaps in the chronological sequence advanced by the applicants. The
applicants were aware of the judgment as
early as the 27 October 2011
which was the date for the intended first sale in execution. Despite
the second sale in execution
scheduled for 27
th
September
2012 and the third sale in execution scheduled for 4
th
December 2013, the applicants did not bring application for
rescission of judgement. The applicants only brought this application
on the 05
th
February 2014. There is no satisfactory
explanation provided by the applicants for the delay.
[18] A delay of over
27 months is quite extensive and requires a detailed explanation. In
the absence of a satisfactory explanation
the abovementioned period
cannot be said to be reasonable.
[19] Applicants
submitted that respondent will not suffer any prejudice as there is a
settlement agreement in place and the said
account has not been in
arrears ever since. They submitted that they are suffering prejudice
in that their property is constantly
put on auction and further that
the judgement is affecting first applicant professionally. I must
however point out that the fact
that a judgement is not prejudicial
to the respondent is not a cause for a rescission. See Swart v ABSA
2009 (5) SA 219
(C).
[20] There is no
doubt as to the importance of the matter to the applicants as this
matter relates to their place of residence.
However when it comes to
the date, the duration and the extent of the obstacle on which the
applicants rely, the founding affidavit
is seriously inadequate.
PROSPECTS OF
SUCCESS
[21] I now turn to
consider whether the applicants have shown a reasonable prospect of
success on the application for rescission.
[22] The applicants
contend that the judgement was erroneously sought or erroneously
granted as they did not receive the Notice
in terms of section 129
and they also did not receive copies of the summons. They further
contend that they have a bona fide defence
against the Respondent’s
claim in that they had an agreement with the respondent’s
attorneys that if they pay 50% of
the arrear amount then the judgment
would not be reflected on their names.
[23] It was
submitted on behalf of the respondent that the Notice in terms of
section 29 was properly served on the first and second
applicant.
Counsel for the respondent referred me to proof in the form of
registered mail slip indicating that the section 29 notice
was sent
to the Applicants and return of service indicating that sheriff
served the summons on both the first and the second Applicants
at
their chosen domicillium citandi et executandi by affixing copy of
summons to the main entrance as he found the adressees to
be absent.
[24] It is the
respondent's contention that the summons and Notice in terms of
section 29 were properly served at the Applicants’
residential
address. The sheriff’s return of service is prima facie
evidence of the truth of its contents. Since there is
no explanation
is given rebut proof of proper service of the Notice in terms of
section 29 and summons, it can therefore be concluded
that there was
proper service upon the Applicants.
[25] In Weare v ABSA
Bank Ltd
1997 (2) SA 212
D at 217 para D the court rejected the
submission that judgement would not have been granted had the Court
been aware that the
summons in fact had not come to the attention of
the applicant. The Court held that even if it had been aware of this,
the court
could not have refused to grant judgment once it was sought
by the respondent on the basis that there had been lawful service of
the summons and the summons disclosed a cause of action for the
relief sought.
[26] Meskin J went
on to state as follows: 'In my opinion, to argue the contrary is in
fact to invite one to conclude that long-established
principles of
civil procedure in South Africa are in law unsound and to enjoin a
court, in every case where default judgment is
sought on a lawful
return of service which shows that service has not been personal, to
refrain from granting judgment without
first enquiring whether in
fact the defendant is aware of the summons, on pain, if it omits to
do so, of its judgment being one
“erroneously granted”,
within the meaning of Rule 42(1 )(a). I think that such conclusion
would be a manifest absurdity.’
[27] With regard to
the section 129 notice the respondent needs only to prove that the
notice was sent to the correct address. In
this case the notice was
sent to the correct address. The requirement for the respondent to
attach a track and trace report from
the post office as laid out in
the case of Sebola and Another v Standard Bank of South Africa and
Another 2012 (5) 142 (CC) is
not applicable in the present case. The
requirement that the credit provider needed to establish that section
129 notice came to
the attention receipent as required in Sebola was
only laid down by the Constitutional Court on the 7
lh
June
2012 and does not apply retrospectively.
[28] At the time the
judgment was granted, it was sufficient for the credit provider to
establish that section 129 notice had been
dispatched by registered
post to the selected address, not that it had reached the receipient.
See Rossouw and Another v First
Rand Bank Ltd
2010 (6) SA 439
SCA.
[29] In my view the
applicants were properly served with copy of the summons and section
29 notice and therefore the default judgment
obtained by the
Applicants was properly obtained.
[30] It was
submitted on behalf of the applicants that there was an agreement
entered in to between the first applicant and the
respondent’s
attorneys that the judgement will be set aside if the applicants can
pay 50% on the outstanding arrears.
[31] It is common
cause that at the time when judgement was obtained, the Applicants
were in arrears with their monthly instalments
and they paid 50% of
the the arrears in order to stop the sale in execution.
[32]
The applicant’s affidavit at paragraph 4.3 of the founding
affidavit reads as follows: ‘Í submit that the
bank then
referred me to their attorneys, Joubert Scholtz Incorporated, who
advised me to pay 50% of the outstanding amount
to
avoid the sale in execution
(My
emphasis) I followed their advice and made the required payment on an
understanding that should I pay the outstanding amount
judgment will
no longer reflect on my name.’ This conclusion by the first
Applicant that once he paid the required payment
judgment will no
longer reflect in his name is not supported by the facts alleged by
him in his founding affidavit.
[33] The applicants
have no defence to the respondent’s claim as set out in the
summons. The fact that the first applicant
was under the impression
that judgement would be reversed or set aside after payment of 50% of
the arrears does not constitute
a defence to the respondent’s
claim.
[34] Factors to be
considered in the granting of an application for condonation, when
taken into consideration both individually
and cumulatively are
decisive against condoning the default Failure to explain the degree
and the cause of the delay, the non-existent
prospects of success, in
particular, make it difficult to justify the exercise of the
discretion in favour of the applicants. In
my view the applicants
have failed to show good cause for the default.
In the result I make
the following order:
(1) The applicant’s
application for condonation for the late filing of this application
is dismissed with costs
P.D MOSEAMO
ACTING JUDGE OF
THE HIGH COURT
On behalf of the
Applicants: Snail Attorneys@Law Inc.
101, Java
Building
285 Lynnwood Road
Menlo Park
Pretoria
On behalf of the
Respondents: Joubert & Scholtz Inc.
11 Heide Street
Kempton Park