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[2015] ZAGPPHC 205
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Joubert v Firstrand Bank Limited and Others (41720/2011) [2015] ZAGPPHC 205 (13 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
Case No: 41720/2011
Date: 13 February
2015
In the matter
between:
CHRISTIAAN
WILLEM
JOUBERT
.......................................................................................
Applicant
and
FIRSTRAND
BANK
LIMITED
....................................................................................
First
Respondent
ELIZABETH
MARIA VAN
EYSSEN
.....................................................................
Second
Respondent
DEPUTY
SHERIFF,
POTCHEFSTROOM
...............................................................
Third
Respondent
IN RE:
FIRSTRAND BANK
LIMITED
..............................................................................................
Applicant
and
CHRISTIAAN WILLEM
JOUBERT
.....................................................................................
Defendant
JUDGEMENT
F DIEDERICKS
(AJ):
1
In this application
Applicant seeks an order to set aside the Default Judgement granted
against him by this Court on the 12
th
December 2012.
2
Judgement was
granted in the amount of R1 691 606,00 (one million six hundred and
ninety one thousand six hundred and six rand)
and the property
mentioned in the Default Judgement was declared executable. The
Registrar was further authorized to issue a Writ
of Execution against
the property mentioned in the order.
LEGAL PROCESS
LEADING TO THE SALE OF EXECUTION:
3
The legal process
leading to the sale of execution of the property mentioned in the
Court Order can be outlined as follows:
3.1 Summons was
issued from this Court on 21
st
July 2011 by First
Respondent against Applicant;
3.2
The summons was served on Applicant on the 26
th
July 2011 at his
domicilium
citandi et executandi
at
3 Wagner Street, Van der Hoffpark, Potchefstroom by affixing same to
the principal door of the property. (See return of service
page 129
of the papers - Annexure AB 1);
3.3 No appearance to
defend was entered by Applicant as a result of which Default
Judgement was granted on the 12
th
December 2011;
3.4 A Sale of
Execution was held on the 04
th
September 2012 and the
property was sold to Second Respondent.
OTHER PARTY:
4
This Application was
also served on Second Respondent (purchaser of the property at the
Execution Sale) who decided not to oppose
this Application subject
thereto that First Respondent does not charge her any interest until
this Application is finalised.
(See RA 4 - page
229)
5
First Respondent is
however opposing this Application.
REQUIREMENTS
FOR RESCISSION OF JUDGEMENT:
6
It is trite law that
an Applicant who seeks to set aside a Default Judgement must prove
the existence of the following grounds i.e.
6.1 Judgement was
granted in his absence;
6.2 Applicant must
tender a reasonable explanation for his default to enter appearance
to defend;
6.3
That the Application is made
bona
fide
and
not with the intention to delay the Respondents claim;
6.4
That the Applicant has a
bona
fide
defence.
CONDONATION:
7
It is common cause
that Applicant did not file this Application within the time frame
afforded by the rules, and he therefore also
seeks condonation in
this regard.
PREVIOUS
LITIGATION:
8
Applicant
did not mention in his founding Affidavit that the Judgement in
respect of which summons was issued in the case
in
casu,
was
preceded by another summons also issued against him in 2010. This
issue was however raised by Respondent in the papers.
9
The
first Summons issued against Applicant was in Case Number 40796/2010,
served on Applicant at his very same chosen
domicilium
address
on 16
th
July 2010.
(See Return of
Service bound in on page 2 of the second bundle dealing with default
judgement)
10
This
Summons, on account thereof that the parties became locked in
negotiations to assist Applicant, became stale and Applicant
had to
issue a fresh Summons i.e. the Summons
in
casu.
Negotiations were
between Respondent and Applicant’s (“Debt Counsellor”)
the identity of whom will become clear
infra.
DEPOSING OF
APPLICANT’S FOUNDING AFFIDAVIT:
11
It must be noted
that Applicant did not attend to the deposing of his Founding or
Replying Affidavit himself. He merely filed confirming
Affidavits in
this regard.
12
These Affidavits
(Founding- and Replying Affidavits) were deposed to by Applicant’s
wife, Hester Maria Joubert. For this reason
this Court will therefore
refer to Mr Christiaan Willem Joubert as “the Applicant”
and to his wife, Hester Maria Joubert
as “the Deponent”.
13
The Deponent
explains in paragraph 1.2 that the reason for the above situation is
that she has throughout the relevant times that
relate to this
Application, personally dealt with First Respondent and it’s
Attorneys due to the illness of her husband.
14
In paragraph 8.7 of
her Affidavit the Deponent declares that she is a Director of an
Administration Business where she was appointed
in a number of
matters as an Administrator in terms of the Magistrates Court Act for
debtors with less than R50 000,00 (fifty thousand
rand) debt.
She further
mentioned that: “Unfortunately the income received from this
Business is not enough to cover all our (her and
Applicants) (my
insertion) expenses without income from the Applicants practice.”
15
It is common cause
that the “practice” of Applicant referred to above is an
Attorneys practice. Applicant is a duly
admitted Attorney of this
Court.
16
From the contents of
paragraphs 8.7, 8.8, 8.9 and 8.10 it appears that Applicant, through
the Deponent, was negotiating with all
creditors including First
Respondent, in either her capacity as the wife of Applicant or in her
capacity as Director of the Administration
Business, or both, the
latter seeming to be the most probable.
These negotiations
as will be seen later, was not only during Applicants illness but
took place since 2010 i.e. at the time that
the first Summons was
issued.
17
The Deponent herself
did not reveal the identity of the other directors of the
Administration Business, if any.
18
The First
Respondent, in its answering Affidavit, did however reveal the
identity of the other directors of the Administration Business.
It
was none other than her husband, the Applicant, himself.
The above “identity”
is clearly reflected in Annexure AC 2.1 (page 158 of the papers)
indicating that the Directors
of the Private Company known as C.H.C.
Administrators (Pty) (Ltd) (Registration number NR2003/029931/07) was
since the inception
thereof on 25
th
November 2003 the
Applicant and Deponent. A third Director was appointed as from 08
th
November 2005.
19
From
the above I am of the view that it is fair to assume that Applicant
(as Attorney and Director) as well as Deponent (as Director)
at all
times had a sound knowledge of the contents of the “National
Credit Act”. At the very least, they were more
knowledgeable in
this field compared to the normal public or sometimes illiterate
members of public who more often than not becomes
clients of
Applicant and/or Deponent and whom they serve/represent in cases as
the case
in casu.
FACTS
DEPOSED TO BY DEPONENT IN SUPPORT OF CONDONATION
AND
DEFENCE:
20
The shortened facts
underlying Applicants woe and predicaments he found himself in was
outlined by Deponent as follows:
20.1 On 20
th
January 2011 the Applicant was bit by ‘n so-called “brown
recluse spider”.
20.2 This allegedly
resulted in Applicant not being able to work in his profession as
Attorney which in turn had a negative impact
on Applicant and
Deponents household income. Their accounts, including the bond
payments to Respondents, started to fall in arrears.
20.3 Deponent
further states that Applicant was hospitalised during the first half
of the year. She however does not mention whether
it was until end of
June or end of July.
The doctors
apparently considered, at a certain stage, to amputate his leg, due
to the spread of infection.
Applicant had severe
pain and was dosed with morphine on a permanent basis. He also
received other medication.
20.4 The above
illness is confirmed by two Doctors i.e. Dr A J Oberholzer and Dr C J
Naude in letters attached to Applicants Founding
Affidavit as
Annexures HJ 6.1 and HJ 6.2 dated 11/10/2012 and 15/03/2011
respectively.
20.5 The contents of
these letters confirm the illness and extent thereof but not the
periods of hospitalization.
20.6 No specific
periods of hospitalization is indicated on the papers but for the
fact that Applicant was taken to theatre on two
occasions i.e. 26
th
January 2011 and 31
st
January 2011 (see Annexure HJ 6.2)
He was, according to
Annexure HJ 6(1), bed-ridden but no fixed period thereof is
mentioned. It is therefore unknown for how long
he was so bed-ridden
and/or hospitalized.
The
only known facts therefore are that he was ill, hospitalized and/or
bed-ridden for the first six months of 2011. That was before
Summons
was served during the next six months of the year i.e. on the 26
th
July
2011
.
21
The above is then
the facts that existed and pertaining to Applicants position prior to
service of Summons.
SERVICE
OF SECTION 129(1) OF THE NATIONAL CREDIT ACT
NOTIFICATION AND/OR THE
SUMMONS:
The Applicant and
Deponent denies that they ever received the Summons or the Section
129 (1) Notice in terms of the
National Credit Act, 2005
, Act 34/2005
(the “
National Credit Act&rdquo
;).
They therefore also
deny any knowledge of the pending litigation and/or the fact that
Default Judgement was granted.
They contend having
learned that Judgement was granted only when they obtained knowledge
of the fact that a Sale of Execution of
the property was scheduled
for the 04
th
September 2012. The Deponent had knowledge of
the Execution Sale on the 31
st
August 2012 and her
husband, according to her, obtained this knowledge only on/about 29
th
September 2012 on account thereof that Deponent withheld this
information from him due to his illness.
23
The Respondent, in
answer, indicated the reasons why the Court should not accept the
reasons advanced by Applicant for his delay
in bringing this
Application, relied on certain C.O.S. entries made by its employees
which deal with all communication between
the parties since 2010.
Same forms part of
the papers and are Annexures AC1, AC2, AC3, AC4, AC5, AC6, AC7, AC8,
AC9, AC10 and AC11 on pages 156-176 of the
record.
24
At first it was
objected on behalf of Applicant that these documents could be used on
account thereof that it is inadmissible on
account of hearsay
evidence.
This objection was
later withdrawn and it was conceded that these documents can be
relied on and taken into account by this Court.
It represents a true
reflection of communication between the parties.
25
Of importance, as
mentioned above, is that one should keep in mind that there was
previous litigation between the parties during
2010.
The
C.O.S. entries in respect thereof reflects entries which refer to the
period when the First Summons was issued (2010) and thereafter
and
also to entries after that Summons became stale and the Second
Summons (the case
in
casu)
was
issued and thereafter.
THE 2010
PERIOD (WHEN THE FIRST SUMMONS WAS ISSUED):
26
On
Annexure AC 1 (page 156) an entry is found next to the date
13/08/2010 that Respondent received a call from Mrs (referring to
Deponent) and that Respondent could not communicate with her without
a Power of Attorney. Deponent, according to this note indicated
that
“they” have signed it and will fax it to Respondent. She
requested a fax number and was also informed that the
matter was at
Legal
and
that the Attorneys are busy with a judgement on the account.
27
The above is in line
with the evidence of Deponent where she indicated that Respondent did
not initially want to communicate with
her.
28
On 24
th
August 2010 (Annexure AC (2) - page 157) Respondent received a call
from a certain “Hester” from C.H.C. Administrators.
(See AC (2) - page
157)
29
It is noted that:
29.1 Deponent’s
name is Hester, and
29.2 She, together
with Applicant, was the Directors of C.H.C. Administrators. They in
fact, are still Directors.
30
In this call, on
24
th
August 2010, the “Hester” from C.H.C.
Administrators called Respondent on behalf of her “client”,
(the
Applicant/her husband/the Co-Director of her Company/the Debtor
of Respondent) in order to make arrangements on behalf of her
client/husband/Co-Director
of C.H.C. Administrators.
31
Certain arrangements
where then made as reflected in AC (2). (Page 157).
32
In Annexure AC (3)
(page 161) there are indications that already since May 2010,
Applicant and Deponent had knowledge about the
First Summons and that
litigation was pending.
33
The significance of
the above is that it seems that although Applicant as well as
Deponent knew at all times during the 2010 litigation
that Summons
was issued against them, they never intended to defend that action.
What they in fact
did was to engage Respondent in negotiations up and until such a
stage that the Summons became stale and Respondent
could, by Law not
obtain judgement.
HISTORY AFTER
THE CURRENT SUMMONS WAS SERVED:
34
As mentioned above,
Summons was served on the 26
th
July 2011. The following
history was captured on Respondents C.O.S. entries after this date.
35
On
10 August 2011 (AC 7- page 165) there was a discussion between
Deponent and Respondents’ representatives wherein she was
informed that a R.A.R. was in place but that this would not
pend
litigation
.
Deponent replied that she was not aware that the account was handed
over for litigation. She was however informed then that litigation
would be pended subject to payment of R30 000,00 (thirty thousand
rand) in September. She was advised that Respondent is proceeding
with judgement.
36
On Annexure AC 8
(page 166) there is an indication that there was a previous Sale of
Execution (the first one) which was stopped
on 12
th
April
2012. This was done because “client” made the payments as
indicated in AC 8.
37
On 10/07/2012 it is
indicated that:
a) Respondent tried
to contact Applicant per cell phone without success;
b) The previous sale
was stopped subject to amounts of R9 000,00 (nine thousand rand) and
R3 000,00 (three thousand rand) that should
be paid;
c) Applicant paid
with cheques but the cheques were not honoured.
38
According
to AC 10 (page 175) on 10/07/2012 there was a conversation between
Deponent and representatives of Respondent where it
is noted that a
Sale of Execution would be stopped which was scheduled for today
(10/07/2012) on account thereof that Applicants
notice was incorrect.
(It is not clear what notice is referred to here). The note refers
thereto that a new S.I.E. (Sale in Execution)
date will be arranged
and Respondent will “ascertain”
(sic)
that
it will advise them of same.
39
Before issue of this
Summons, an email was sent to Respondent.
(See Annexure AE on
page 177 of record).
40
In this email
arrears was admitted and it is mentioned that this was on account of
Applicants illness.
41
On the face of this
email it would seem that it was written by Applicant, Chris Joubert.
42
During argument it
was argued on behalf of Applicant that he never sent that email. It
was argued that it was written by Deponent
who inserted her husbands’
(Applicants) name at the end thereof on account thereof that the
Respondent would not talk to
her but only to Applicant.
43
The above was
disputed by Respondent querying why this document would then have
been written in the “third person” if
Deponent wrote it.
44
The Court takes note
of the fact that according to Annexure AC 1 (page 156) the Deponent
was in possession of a Power of Attorney
to represent her
husband/Applicant since 2010. The Court therefore finds the argument
put forward on behalf of Applicant somewhat
strange. Why would
Deponent have written the said letter pretending to be the Applicant
whilst she had a Power of Attorney to act
on his behalf?.
45
If this Court now
have regard to all the above, the following seems to be the position.
45.1 Applicant fell
in arrears with payment of his bond in 2010, when he was healthy;
45.2 Summons was
issued by Respondent in 2010;
45.3 This action was
never apposed although Applicant had knowledge of the action and of
the fact that his bond payments were in
arrears.
45.4
The 2010 Summons became stale and a fresh Summons had to be issued
which is the action
in
casu.
46
Very
much the same situation now exists in the action
in
casu
that
existed in the 2010 action.
47
In
the previous action Applicant resorted to negotiate and never
intended to enter an Appearance to Defend the action.
In
casu
the
Applicant seeks the relief as set out in his Notice of Motion and
sets out his reasons for condonation of his late filing of
the
Application in the
Founding
Affidavit
.
He deals with a
bona
fide
defence
i.e. that Section 129 of the Credit Act was not adhered to and also
deals with the aspect that he was not in wilful default.
The reasons
therefore, being his ill health.
DEFENCES
IN CASU:
48
In a dramatic turn
of events, Applicant in his Replying Affidavit, resorts to the very
same tactics as he had previously i.e. that
he wants to settle by
selling the house and pay the bond from the proceeds from the sale.
49
It is clear from the
contents of paragraph 4.2 (on page 191 of the papers) that Applicant
intends to have the Default Judgement
set aside in order to put him
in a position to negotiate a settlement with Respondent in terms
whereof the property will be sold
so that the bond can be paid in
full.
(See also the
content of paragraph 57 of Applicants Replying Affidavit on page 207
of the papers).
This Court also
considered the proposal of Applicant to eventually resolve the
dispute between the parties as outlined above.
50
The
Deponent with regard to the proposed sale of the property deposed as
follows under Oath in paragraph 4.2 of the Replying Affidavit
on page
199 of the papers:
“
At
this stage we have already obtained a
cash
buyer
(my
emphasis) for the properties not (sic - to read note) there are two
neighbouring stands involved in an amount of R4 250 000,00
(four
million two hundred and fifty thousand rand) as appears from the
Agreement of Sale which has already been concluded and which
I attach
hereto as Annexure “RA 1”. This purchaser ready (sic) to
make payment in full upon registration and the only
reason why
transfer cannot occur is due to the Judgement which has been taken
and the subsequent
caveat
which
has been registered by First Respondent over the property.”
In the next sentence
the Deponent again refers to the so called “cash purchaser”.
51
If one turns to the
Agreement of Sale of the property, Annexure RH 1, the following is
found:
51.1 The Agreement
is not a cash sale. According to paragraph 2 thereof, the sale is
subject thereto that the purchaser secures
a loan from a financial
institution against registration of a bond; and
51.2 (a) The
Agreement is not signed by both parties. Full signatures of the buyer
and one witness appears on page 6 (of 7) of the
Agreement. The
initials of these two individuals appear on all the other pages.
(b)
The Court considered the possibility that page 7 could have been left
out from the papers as a result of a
bona
fide
error.
However,
this aspect was properly canvassed during argument and at no stage
did Applicant’s Council tender page 7 to Court
with a request
that it should be allowed on account of a
bona
fide
mistake.
This Court would
have received and allowed it, had this been done.
(c) No initial
purporting to be those of the Seller and/or his witnesses can be
found on any of the pages of RH 1.
52
Under the
circumstances the Court can come to no other conclusion than to find
that there is no Contract of Sale between Applicant
and any buyer,
let alone an alleged “cash sale”.
53
In this regard the
evidence of the Deponent is found to be false.
54
A
further aspect that needs to be considered is that Deponent, on
behalf of Applicant, disputed the outstanding balance due by
Applicant and advances various reasons for disputing same. In short,
the amount in which Judgement was granted is disputed
as
a defence.
55
In paragraph 8.5
(page 26 of the papers) the Deponent states as follows: “In
view of the above the outstanding balance as
set out by First
Respondent in the Certificate of Balance, is therefore disputed. The
Applicant is preparing a supplementary Affidavit
dealing with the
calculations which will be presented to the above Honourable Court
once calculations have been finalised.
56
No such further
Affidavit was filed, neither did Applicant file these calculations
when filing his Replying Affidavit.
57
During argument this
Court enquired about these calculations and the answer tendered by
Applicants Advocate was that they were not
done on account thereof
that it would have been too expensive to have them done.
58
A further aspect is
that Respondent challenged Applicant to file hospital records to
indicate periods of hospitalization and absence
from office during
the period of negotiations between the parties.
59
Applicant failed to
file these hospital records. Instead, Applicant filed the hospital
records contained in bundle RX (bundle 4
of the papers).
60
In perusing same, it
is clear, that these records only deals with treatment during 2014.
61
It argued along the
lines that because Applicant had a fall-back in 2014, the Court
should therefore be able to determine the magnitude,
extent and
consequences of Applicants illness and absence from his practice in
2012. In this regard this Court can merely remark
that this argument
calls for speculation.
62
Applicant
further, as explanation why he failed to enter an Appearance to
Defend argued that according to the Return of Service,
the Summons
was served on his
domicilium
address
i.e. 3 Wagner Street, Van der Hoffpark, Potchefstroom, by affixing
same to the
main
front door.
63
63.1 In passing, it
must be mentioned that the alleged manner of service accords with the
Notice of Return of Service.
The
Applicant however on the other hand has another version regarding the
problems surrounding the service itself in that he (or
the Deponent
on his behalf) mentions that, with reference to the Return of Service
(Annexure 9 - page 239) it should be understood
to mean that the
Summons was served by way of attachment to the
front
gate
.
(See paragraph 22 - page 197 of papers).
The Deponent goes
further to explain that the reality thereof is that if this Summons
was affixed to the front gate, it must have
become lost due to
weather or other reasons beyond their knowledge and control.
64
During argument the
Court was referred to photographs of the entrance gate to the said
property. Same are to be found on pages 230,
231 and 232 of the
record.
65
It was argued that
it is clear from the photographs that no person could have reached
the main front door on account of the high
wall together with the
electric wiring on top of it and no one could access the property
through that gate.
66
On account thereof
it is argued that the Sheriff could never have served the Summons by
affixing it to the front door and the Applicant
therefore disputes
service and denies that he ever received the Summons.
67
No argument was
advanced regarding the validity of a Service by attaching a Summons
to the front gate as deposed to by Applicant.
The Applicant
further sets out a defence that Respondent failed to comply with
Section 129 (1) of the Credit Act,
2005, Act 34/2005
in that
according to the papers it is clear that the said Notice was sent to
the address 3 Wagner Street, Van der Hoffpark, Potchefstroom.
68
In this regard
reference was again made to the photographs found on pages 230, 231
and 232 of the papers and it was pointed out
that there is no post
box in front of the premises.
In passing it must
be said that it is unknown to this Court when these photographs were
taken and/or when the wall, fencing and
electric gate was erected.
69
In this regard
(Section 129 (1)) it was argued that the Section 129 (1) Notice never
came to the attention of the Applicant (Debtor)
as was required by
Law at the time that Judgement was granted, and that on account
thereof the Judgement should be rescinded.
CONDONATION
APPLICATION:
70
The Applicant is
applying for condonation of the late filing of his Application for
rescission of judgement (paragraph 1 of the
Notice of Motion).
71
It is common cause
that Applicant filed his Application out of time.
72
The reasons advanced
by Applicant why the Application for rescission of judgement is late
and why condonation is seeked, is outlined
as follows in paragraphs
7.2 and 7.3 of this Founding Affidavit i.e.:
72.1 Due to the fact
that Applicant was under the impression that the First Respondent
would not proceed with the re-issuing of
the Writ of Sale in
Execution knowing well that there was no proper compliance with the
provision of Section 129 read with 130
of the
National Credit Act;
and
72.2
The Applicant was at all times under the impression that the
proceedings instituted against Applicant by the First Respondent
were
defective and that the
Court
should not have, with respect, granted Judgement by
Default
against Applicant
,
(my emphasis) The underlined words above, in passing, can in my view
not be understood otherwise than to mean that the Applicant
knew that
Judgement was granted but was of the view that the Court should not
have done so.
73
Apart from the
reasons for condonation outlined in paragraph 73 above, the Deponent
(on behalf of Applicant), further also explains
in paragraphs 15.4
and 15.5 why the Applicant failed to launch this Application within
the prescribed period according to the rules,
after he should have
known about the Judgement on account of the Sale of Execution that
took place on the 04
th
December 2012.
The explanation
tendered here is:
a) The Applicant was
too ill to fully resume his practice and the Deponent withheld
knowledge of the Sale of Execution from him;
and
b) Applicant only
became aware of the Judgement since round or about 29
th
September 2012.
74
The above is
directly in contradiction of what is deposed to in paragraph 12.2 of
the Founding Affidavit, i.e. “During July
2012 the Applicants
physical situation has substantially progressed and I have in fact
advised them that he is now able to work
fully and therefore generate
income from his practice as before his illness and final arrangements
could now be made for the liquidating
of the outstanding arrear
amount.
75
This Court has its
doubts whether these reasons are convincing but I am inclined to
grant Applicant the benefit of such doubt.
76
The delay is also
not excessive, the prejudice and inconvenience minimal. Condonation
should therefore be granted and such Order
is therefore made.
APPLICANTS
DEFENCES:
I know turn to
consider Applicants defences as outlined above.
77
JUDGEMENT FOR
WRONG AMOUNT:
Regarding
Applicants defence that Judgement was granted for a wrong amount I am
not convinced on the papers before me that this
“defence”
is either
bona
fide
raised
or has any substance at all.
78
Applicants failure
to file the calculations as promised (undertaken by him) in his
Founding Affidavit is fatal to his “defence”
raised in
this regard. This Court regards this failure as tantamount to a
waiver of this defence especially after having indicated
to
Applicants Council that the Court would even be willing to receive
same during argument.
79
I therefore conclude
that regarding this “defence”, the Applicant has no
defence at all.
THE
DEFENCE OF NON COMPLIANCE WITH
SECTION 129
OF THE
NATIONAL CREDIT ACT:
I
have already
referred above, to the crux of the argument regarding Applicants
defence of non compliance with Section 129 (1) of
the Credit Act,
2005, Act 34/2005.
This is in fact the Applicants main defence.
80
The argument
supporting this defence is that:
80.1 Respondent
delivered the Section 129 (1) Notice per registered mail to
Applicants home (street) address at 3 Wagner Street,
Van der
Hoffpark, Potchefstroom.
80.2
It is common cause that the said address is Applicants chosen
domicilium citandi
et executandi
address
according to the bond registered over the property, the relevant
portion of which reads as follows in paragraph 23 of the
Mortgage
Bond: “Enige kennisgewing kragtens hierdie verband beteken met
betrekking tot geregtelike stappe, of dreigend of
ingestel, of enige
dagvaardings of ander Hof proses stukke ten opsigte van enige eis wat
daaruit voortspruit, word geag geldig
aan die Verbandgewer beteken te
wees indien dit afgelewer is by of per geregistreerde pos gestuur is,
geadreseer aan Wagnerstraat
3, Van der Hoffpark, Potchefstroom by
welke adres die Verbandgewer hierby
domicilium
citandi et exectuandi
aanvaar
vir die doel van enige verrigtinge of stappe wat kragtens hierby
verband ingestel of gedoen mag word, en met dienverstande
dat as geen
domicillium
adres
in die blanko ruimte hierbo ingevul is nie, daar geag word dat die
Verbandgewer sodanige
domicillium
by
die verbinde eiendom aanvaar het, of by enige een van die verbinde
eiendomme as daar meer as een is. Enige ander kennisgewing
mag of per
hand gelewer of per gewone pos gestuur word.
Enige kennis wat per
pos, hetsy geregistreerd of andersins, kragtens hierdie klousule
gegee word, word geag deur die Verbandgewer
ontvang te gewees het op
die derde dag na die dag waarop dit gepos is.”
81
The abovementioned
mortgage bond forms part of the documentation filed in the
Application for Default Judgement and was available
in the Court file
at the hearing of this Application.
82
It was further
argued on behalf of the Applicant that:
a) There is no
postal delivery at the said address; and
b) If there were
postal delivery, such delivery would have been practically
impossible.
In this regard
reference was again made to the same photographs used by Applicant to
indicate that the Summons could not have been
attached to the main
front door by virtue of the fact that the property is surrounded by
high walls and electric fencing with an
electric wooden gate.
(Photographs on pages 230, 231 and 232).
The only difference
in the argument was that it was pointed out to Court that there is
not a post box at the premises.
Under the
circumstances Applicant denies ever having received the Notice in
terms of Section 129 (1) of the Act.
83
Applicant referred
to the reported cases of SEBOLA & ANOTHER V. STANDARD BANK
OF SOUTH AFRICA LIMITED & ANOTHER
2012(5) SA 142(CC) and
KUBYANA V. STANDARD BANK OF SOUTH AFRICA LIMITED & ANOTHER
2014(3) SA 56(CC) and argued that on account
of these decisions and
having regard to the evidence at hand, the Judgement should be set
aside, it being clear that Applicant
never received the said Notice
in terms of Section 129 (1) of the Act.
84
The
Respondent argued that, whilst agreeing with the principals as set
out in the
SEBOLA
& KUBYANA
matters,
that the Court should pause to consider the contents of paragraph 46
of the Case of
KUBYANA
V. STANDARD BANK OF SOUTH AFRICA LIMITED 2014(3) SA 56(CC)
which
reads as follows:
“
46.
The Act does not imply, and cannot be interpreted to mean, that a
consumer may
unreasonably
ignore the consequences of her election to
receive
notices by registered mail, when the notifications in questions have
been
sent to the address which she duly nominated.
While
it is so that consumers should receive the full benefit of the
protections afforded by the Act,
the
noble pursuits of that statute should not be open to abuse by
individuals
who seek to exercise those protections unreasonably or in bad
faith.
”
(Underlined
portions are my emphasis)
85
The
Court has noted the contents of paragraphs 75 - 79 of
SEBOLA
case
and the contents of paragraphs 52 - 55 of the
KUBYANA
cases
to which the Applicant referred.
In
applying the contents of the paragraphs in these two cases to the
case
in casu
it
is clear that:
a)
Section 129 (1) notice was sent to Applicants street address, where,
although it is his
domicillium
address,
there is no postal delivery and subsequently that the said notice was
never received by him.
b) That the
Applicant has affectively rebutted the inference of delivery.
87
On account of the
above it is clear to me that it cannot be found in this case that
First Respondent can claim to have complied
with the provisions of
Section 129
of the
National Credit Act in
the event that it had a
duty to make sure that the notice has come to the attention of the
Debtor.
88
On this argument,
seen in isolation, I am of the view that the Judgement could have
been set aside in the event where the said defence
was available at
the time when Default Judgement was granted i.e. 12 December 2011.
(See SWADIF (PTY)
LTD V. DYKE 1978(1) SA 928(A) AD 939.)
89
The
Judgement in the
SEBOLA
case
was delivered 07
th
June 2012, almost 7 (seven) months after Default Judgement was
granted against the Applicant.
The
Judge who granted Default Judgement against Applicant would obviously
not have applied the principals as set out in the
SEBOLA
case.
He would have
applied the legal principals as it stood at the time when he granted
Default Judgement.
90
I
also accept that the Judge, in granting the Default Judgement, would
have taken note of the fact that the Supreme Court of Appeal
has
dismissed the
SEBOLA’S
appeal
on the 11
th
August 2011, two months prior to his granting of the Default
Judgement
in casu.
91
I
am convinced that the Judge, in granting Default Judgement, knew that
he was bound by the principals as laid out in the case of
ROSSOUW
&
ANOTHER
V FIRSTRAND BANK LIMITED. 2010(6) SA 439(SCA)
.
as
that was the applicable Law at the time that Default Judgement was
granted.
92
According to the
ROSSOUW judgement, proof by the Bank that it had dispatched the
notice was sufficient, even if the notice did not
reach the Debtor.
(See
also the reference to this position in
SEBOLA’S
case
in paragraph 2 thereof.)
93
I
am therefore of the view that the defence as set out in the
SEBOLA
case
was not available to Applicant at the time when Default Judgement was
granted.
94
The Judge, who
granted Default Judgement, granted it with due regard and in
accordance with the Law as it stood at the time.
95
I
therefore find that the defence raised in accordance with the
principals as laid down in
SEBOLA’s
case
was not available at the time when Default Judgement was granted and
cannot be seen to be available to him now.
If that would be the
case, this Court would release a ghost to haunt several judgements
granted prior to the 07
th
June 2012.
96
In view of the
above, I am of the view that Applicants application should be
dismissed.
97
I
thought it fit to further consider the question whether Applicant has
succeeded in persuading that he is
bona
fide
in
bringing this application and that the application is not brought
with the intention to delay the Respondents claim.
(see
WRIGHT V. WESTELIKE
PROVINSIE KELDERS BEPERK 2001(4) SA 1165(C) 1180-1181)
98
To
my mind, the above principal as outlined in the
WRIGHT
case
indicates a remarkable resemblance with the remark made in the
KUBYANA
case
by the Constitutional Court in that:
“
46.
The Act does not imply, and cannot be interpreted to mean, that a
consumer may unreasonably ignore the consequences of her election
to
receive notices by registered mail, when the notifications have been
sent to the address which she duly nominated. WHILE it
is so that
consumers should receive full benefit of the protections afforded by
the Act,
the
noble pursuits of that statut
e
should not be open to abuse by an individual who seeks
to
exercise those protections
unreasonably
or in bad faith
.”
(my
emphasis)
99
In considering the
above, the following is noted.
99.1 The Applicant
is an Attorney, duly admitted by this Court and is still practicing
as such;
99.2 The Applicant
and Deponent are Directors of a Company dealing exclusively with
issues regarding the
National Credit Act and
both are accepted to
have proper knowledge of the contents of the Act;
99.3 Neither the
Applicant nor the Deponent revealed to this Court what their
respective involvement in this Administration Business
was. It was
revealed by the Respondent;
99.4 During the 2010
litigation, Applicants took the very same stance regarding the non
delivery of the Section 129 (1) notice which
resulted in them
negotiating with First Respondent until the Summons became stale,
forcing First Respondent to issue a fresh Summons;
99.5 They challenged
the amount in which Judgement was granted with promises to do their
own calculations. When the time to deliver
these promises arose at
the hearing, they were not met; Applicant and Deponent relied heavily
on Applicants illness during the
first half of 2011 for Applicants
falling behind in their bond payments. When challenged to supply
records indicating periods of
hospitalization and when he was
bed-ridden, no documentation is supplied. Documentation is supplied
in respect of his illness in
2014. (See bundle RX)
99.6 The evidence
regarding when Applicant was ill and able to resume his practice is
contradicting in paragraph 12.2 compared to
the contents of paragraph
15.4.
99
.7
The evidence tendered that Applicant has a “cash buyer”
is simply false as pointed out
supra.
99.8 The Applicant
clearly wants to have the Default Judgement to be set aside for the
sole purpose to place him in a position to
negotiate a settlement
based on favourable economic advantages for himself, whilst negating
the fact that he has not paid any monies
to Respondent since
Judgement was granted.
100
I therefore find
that the above can hardly be found to be reasonable towards the
Respondent under the prevailing circumstances.
101
I
therefore find that Applicant is attempting to abuse and has also in
particular abused (in 2010/2011) the protection afforded
to him in
terms of the
National Credit Act 2005
, Act 34/2005, in a manner as
contemplated in paragraph 46 of the
KUBYANA
decision.
102
The
Applicants application is therefore dismissed with costs.
SIGNED
AT PRETORIA ON THIS
26
DAY
OF January 2015.
F DIEDERICKS (AJ)