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[2015] ZAGPPHC 499
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Mnisi and Another v First Rand Bank Limited (51839/2009) [2015] ZAGPPHC 499 (19 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Delete
whichever is not applicable
(1)
Reportable
Yes
/No
(2)
Of interest to other Judges
Yes
/ No
(3)
Revised.
15/5/15
CASE NO: 51839/ 2009
In the matter between:
PATRICK
MNISI
First
Applicant
NKEKOLO
NUSTER MNISI
Second
Applicant
and
FIRST
RAND
BANK
LIMITED
First
Respondent
SEBENZILE
HOMES AND ACCOMODATI
ON CC
Second
Respondent
JUDGMENT
Ismail J:
[1] This is an
application wherein the applicants seek rescission of a judgment
which was given against them. The applicants seeks
to have a summary
judgment order granted against them by Raulinga J, on the 25 April
2014, be rescinded.
[2] The basis that the
application for rescission is premised is that the judgment was
erroneously granted. See
Custom
Credit
Corporation
(Pty) Ltd
v Bruwer
and
Others
1969 (4) SA 564
(D) and
Shield
Insurance
Co
Ltd v
Van
Wyk
1975 (4) SA 781
(NC)
[3] Heads of arguments
were filed on behalf of the parties in this matter and the court is
grateful to counsel for the timeous filing
thereof.
[4] The applicants
contend that the judgment was incorrectly given against them in that
there was no notice of re-enrolment advising
them that summary
judgment application was set down for determination.
[5] The situation
prevalent at the time was that Jacob, Moodie & Madeleine Nell Inc
were the applicants attorneys of record.
A letter dated15 January
2010 from Nel- Erasmus stated:-
"
Geliewe daarop te let dat Mdeleine Nel-Erasmus die firma Jacobs,
Moodie & Madeleine Nel Inc. verlaat het, en vanaf 1
Januarie 2010
praktiseer onder die naam Nel -Erasmus Prokereurs. Geliewe verder
daarop te let da tons adres en telefoonnommers
verander het.
Ons
sal binnekort die Kennisgewing van onttrekking en toetreding as
prokereurs van record op u kantore beteken"
No notice of withdrawal
from the attorneys of record, Jacobs, Moodie & Madelein Nel Inc,
was served and in addition thereto
no notice of appointment from
attorneys Erasmus -Nel was filed indicating that they were the new
attorneys of record of the applicants.
[6]
The deponent to the founding affidavit at paragraph 10 stated:
"....
Nothing regarding the notice was communicated to me in any way
whatsoever nor did my last attorneys, Nel Erasmus Attorneys
who dealt
with the matter inform me of any application."
[7] The first respondent
contended that it complied with the provisions of Rule 16 in that it
served the notice on the appointed
attorneys of the applicants, and
this ground seeking rescission of judgment does not hold any water,
and should be rejected by
the court.
[8] The applicants are of
the view that the amount for which judgment was granted was
incorrect. They aver that in the application
for summary judgment an
amount of R1 483 162, 80 was sought whereas in another document
marked 'RM6', the outstanding amount allegedly
due was reflected as
R1 382 000. 00. In addition thereto, the applicants are of the view
that movable property worth R500 000,00
had been disposed of by the
liquidator. This amount should therefore have reduced the figure
claimed in the summary judgment application.
Had the court been
appraised of this fact, summary judgment would not have been granted.
[9] Ms Oschmann acting
for the first respondent submitted that this argument had no merit as
the applicants themselves are not certain
whether the movable assets
were sold or not.
[10]
A further ground which raised by the applicants, whereby they sought
that the judgment be rescinded was that the deponent of
the affidavit
supporting the granting of summary judgment , one Robert Freeborough
was required to have personal knowledge and
not merely required to
verify the allegations in terms of Rule 32. It was submitted on
behalf of the applicants that Mr Freeborough
failed to mention in his
affidavit that the applicants, indebtedness stemmed from a suretyship
agreement which they signed on behalf
of the second respondent.
[11] It was argued before
me that the aforementioned argument was without merit as Mr
Freeborough in his affidavit stated that he
verified the cause of
action as well as the amount due by the applicants.
[12] The applicants also
submitted that the summons was prematurely issued in that the
respondent failed to comply with the provisions
of
section 129
(1) of
the
National Credit Act of 2005
[the Act]. The first respondent
in opposing this argument submitted that the principal agreement was
excluded by the provisions
of
section 4
of the Act. It was argued
that notwithstanding the exclusion in terms of
section 4
the Act,
first respondent as a matter of caution served a notice in terms of
section 129(1)
on the applicants. Mr Korff acting on behalf of the
applicants submitted that the
section 129
notice was served at 15
Berg Street (pages 95/6) whereas on the suretyship agreement they
gave their address as 26 Fiona Crescent,
Kempton Park. Miss Oshmann
on behalf of the first respondent submitted that it made no
difference where the
section 129
notice was delivered as the
plaintiff was not obliged not to give notice. This begs the
question why then did it do so, and
having done so why was it not
sent to the correct address. Furthermore they were co-principal
debtors.
[13] The applicants
contend that two former members of the second respondent namely Ms
Mogadi Morata and Mr Johannes Mashapa succeeded
in obtaining the
judgment taken against them to be set aside by way of rescission and
therefore they should also succeed in their
application. In my view
this argument is fatally flawed as every case must be viewed on its
own facts and circumstances. In any
events the facts of that matter
were not placed before me. I am none the wiser whether the facts in
that matter are on all fours
or distinguishable from the facts
herein.
[14] I am of the view
that although the first respondent served the summary judgment
application on the applicants nominated attorneys,
it was always the
applicants intention to oppose the application. The fact
that
the application for summary judgment was not opposed was not due to
any fault on the part of the applicants
per se
but rather to
what transpired with the applicants attorneys. Had the application
for summary judgment been opposed, the court might
have granted leave
to defend on the grounds that the amount claimed was not due and
owing, bearing in mind the question of movables
which were attached
and the issue regarding the certificates of balances which I will
deal with hereunder.
[15]
Mr Korff argued that the certificate of balance relied upon in the
summons was dated 21 June 2009 (page 46) and that the summons
was
issued on 31 May 2009. He also submitted that the certificate of
balances reflected different amounts owed.
[16] Mr Korff submitted
that the summary judgment application was not appealable as it was
not a final order in effect. In this
regard he relied upon the
decision of
Marsay v Dilley
[1992] 2All SA 327
(A) where
Corbett CJ at para [18] stated:
" The law relating
to the appealibility of decisions of a court of a provincial division
were re-examined relatively recently
by this court in the case of
Van
Streepen
&
Gems (Pty) Ltd
v
Transvaal Provincial
Division
1987
(4) SA 569
(A). As this judgment shows, this Court has over the years
adopted an increasingly flexible approach to the question of
appealibility.
The general principle which, I think, may be extracted
from the judgment is the following: where a trial court has under
some competent
procedure (such as an application under
Rule 33(4))
made an order which has the effect of being a final decision ( i e
one which cannot be corrected or altered or set aside by the
trial
Judge at a later stage of the trial) and the decision is definitive
of the rights of the parties and has the effect of disposing
of a
substantial portion of the relief claimed by the plaintiff in the
main action, then this order is a judgment (as understood
in
sec
20(1)
of the supreme court Act 59 of 1959) and is appealable, despite
the fact that the main action has not been concluded (see also in
this connection a recent and as yet unreported judgment of this Court
in the matter of SA
Eagle Versekeringsmaatskappy Beperk v
Hartford,
27.3.92 There is no doubt that the Court a
qou
pronounced finally upon the relationship between the parties and
upon the extent of the obligation on the part of Dilley to account
to
Marsey....."
[17] In this application
the summary judgment order was given in default, in that the
respondents (current applicants) did not 'oppose'
the application.
The Judge merely had an affidavit of one side to consider and the
applicants (respondents in summary judgment
application) opposition
was not available. Had the respondents affidavit been available
and been considered by the court
then I am inclined to conclude it
would have been a final decision and would have been appealable.
[18] The applicants have
given reasons why they should have the order set aside, and that they
have a bona fide defence which was
not entertained due to the problem
with their attorneys practice being split. The argument advanced was
that had they opposed the
summary judgment application the judge
would have come to a different conclusion as he would have been
appraised of further information
to the contrary.
Therefore
Raulinga J's order is not appealable as he made a correct decision on
the facts that were before him. Had the judge been
aware of their
version he would not have given the order. Accordingly the decision
which was taken in default was not a final order
and consequently it
should be set aside by way of rescission.
[19] I am of the view
that the application should succeed as the applicants were entitled
to oppose the application and they were
not in willful default.
Although some of their defences appear to be of a technical nature
there were conflicting certificates
of balances; and the issue of the
movables having been attached thereby possibly reducing the amount
due was not canvassed.
[20] In
Grant v
Plumbers
(Pty) Ltd
1949 (2) SA 470
(0) the
court expressed the view that the applicants have to demonstrate that
they have a bona fide defence and that where the
applicant has set
out averments, which if established at the trial would entitle him to
the relief applied for.
[21] In the circumstances
I make the following order:
The
judgment given against the applicants is set aside with cost on a
party and party scale.
Ismail
J
APPEARANCES :
For the Applicants
:
Adv C A Korff instructed by Maodi Attorneys,
Kempton Park c/o Molosi
attorneys, Pretoria
For
the
First and
Second
respondents:
Adv
I Oschman instructed by
Bezuidenhout van Zyl &
Associates, Johannesburg
Date
of
hearing:
20 April 2015.
Judgment
delivered
:
19th May 2015