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[2015] ZAGPPHC 390
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Murdoch v Standard Bank of South Africa (49226/13) [2015] ZAGPPHC 390 (12 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: 49226/13
DATE: 12 JUNE 2015
In the matter between:
BRET WALLIS
MURDOCH
.............................................................................................
APPLICANT
And
THE STANDARD BANK OF SOUTH
AFRICA
.........................................................
RESPONDENT
Coram: HUGHES J
JUDGMENT
Delivered on: 12 June 2015
Heard on: 10 June 2015
HUGHES J
1. The applicant, Bret Wallis Murdoch,
seeks recession of a default judgment granted by this court on 14
October 2013. Standard
Bank LTD, the respondent, obtained the
judgment in respect of monies owed to it by the applicant in the sum
of R 595 767.89 plus
interest and costs.
2. Briefly, the respondent served the
summons personally upon the applicant on 29 August 2013. The time to
enter an appearance to
defend having expired on
13 September 2013, the application for
default judgment was filed into court on 14 October 2013. On 12
December 2013, the registrar
of this court granted default judgment.
3. The applicant states that as soon as
he received the summons he contacted the respondent’s attorney
of record. He informed
the respondent that fraudulent transactions
had occurred on his account and that he had referred the matter to
the Banking Services
Ombudsman for consideration. He further states
that the respondent’s attorney reassured him that he had
“nothing to
worry about as default judgment would only be
granted against me in about ten to twelve months from receipt of the
summons”.
[Paragraph 6 of the founding affidavit].
4. At the time that he made the
previously mentioned representations, on 12 July 2013 an email sent
from the Ombudsman to his personal
email address, advising that, on
the informed him that on information he submitted, his case had no
prospects of success. In response
to this email from the Ombudsman,
the applicant sent emails on 15 and 17 July 2013 voicing his
disagreement with the Ombudsman’s
findings.
5. During the month of September 2013
after the service of the summons, negotiations ensured between the
applicant and the respondent’s
attorney. The applicant annexed
correspondence from 13 September 2013 to 30 September 2013 to his
founding affidavit. The just
of the correspondence was:
(a) On 13 September 2013, the applicant
submitted a proposal “to settle this outstanding debt at the
bank”;
(b) The respondent replied, setting out
instalment payment amounts they were amicable to accept;
(c) On 30 September 2013, the applicant
presented a counter proposal to the instalment payments sought by the
respondent. He advised
the respondent,
replied advising that, in six months
from 13 September 2013 he would be getting a portion of his
inheritance and would be able to
settle the debt; and
(d) On 22 January 2014 at 07:59 am, the
applicant sent an email to his erstwhile attorney, on
“eddie@adlattorneys.co.za, providing
them with the
correspondence between him and the respondent’s attorney set
out above.
6. The applicant is adamant that he did
not owe the respondent the amount claimed, “but entered into
settlement negotiations
pending a response from the Ombudsman for
banking services and pending the outcome of the main court action”
[Paragraph 14
of the founding affidavit]. This he did because of the
fraudulent transactions conducted on his bank account held with the
respondent,
which resulted in the amount claimed being due and
payable to the respondent.
7. During the middle of January 2014,
he established that default judgment had been granted against him. On
14 January 2014, he
contacted his attorneys and consulted with them
on 21 January 2014. The contents of the court file were obtained on
30 January
2014 and further consultations took place on 14 February
2014.
8. The applicant now seeks condonation
for the late filling of his recession application. The respondent
does not vigorously oppose
and has opted to abide by the court’s
decision.
9. The period of delay sought in
respect of condonation is not lengthy one. In addition, it is evident
from the sequence of events
that from the day the applicant became
aware of the default judgment, he acted immediately.
10. The grant or refusal of condonation
lies within the discretion of the presiding officer. In the
circumstances of this case the
respondent does not resist the
application for condonation and the explanation advanced by the
applicant is a reasonable one, as
such I see no reason not to grant
condonation sought by the applicant.
11. I now turn to deal with the
recession application. From the founding affidavit this application
is brought in terms of Rule
31 (2)(b) of the uniform rules of court,
which reads as follows:
“31(2)(b) A defendant may within
twenty days after he or she has knowledge of such judgment apply to
court upon notice to
the plaintiff set aside such judgment and the
court may, upon good cause shown, set aside the default judgment on
such terms as
set out seems fit.”.
12. However, the applicant sought that
I take into account Rule 42(1) (a). The judgment was erroneously
sought and granted in spite
of an agreement between the parties,
where the respondent undertook not to seek judgment until the
applicant obtained a response
from the Ombudsman to his letter of 31
July 2013 wherein he voiced his disagreement to the Ombudsman’s
findings.
13. The applicant submits that the
fraud committed was with the assistance of bank personnel and that
the bank personnel failed
to follow proper procedures. In the
circumstances, the respondent participated in the fraud and was
negligent in its duties. The
applicant argued that in the
circumstances the default judgment was not supposed to be granted.
14. The applicant further submits that
at the least, the negligence of the respondent contributed to the
fraud. In that, the respondent
allowed unclear funds to be withdrawn
by the applicant. The fraud and negligence will have to be canvassed
at trial, thus recession
should be granted and the applicant be
allowed to defend the action.
15. Lastly, the finding of the
Ombudsman was clearly incorrect, regarding the Code for Banking
Practices, as the respondent was
supposed to exercise reasonable
care, which it did not in this case, when collecting cheques.
16. The respondent argues that the
reasons furnished for being in wilful default by the applicant are
unconvincing and far-fetched.
In that, the applicant states that he
was still busy with negotiations with the respondent; was also
awaiting the final decision
from the Ombudsman; the respondent’s
attorney agreed that default judgment would not be sought until the
aforesaid was finalised;
and that in ten to twelve months’ time
judgment would be granted.
17. The respondent submits, in light of
the summons having been served after the Ombudsman’s
assessment, the applicant’s
argument is flawed. The respondent
further submitted that as attorneys of the respondent they bound by
certain “turn around”
times. Thus, they would never have
made the proposition that the judgment would materialise in ten to
twelve months.
18. In addition, the respondent points
to the emails during the negotiation period, and argues that these do
not reflect the version
advanced by the applicant. There is no
written confirmation of the applicant’s allegations, in the
contrary, the applicant
offered to pay the debt owed, thus accepting
liability. In premises, the respondent concludes that the applicant
was in wilful
default.
19. The respondent submitted that the
fraudulent defence raised by the applicant could not stand as he
withdrew the amount from
his account in lieu of a cheque having been
deposited in his account. The applicant was also aware that he would
be liable, at
the banker’s discretion, if he withdraw from
unclear funds i.e. cheque deposited in his account. As such, he
cannot blame
the bank for being a part of the alleged fraud.
20. The respondent also highlights the
contents of the applicant’s email where he makes an offer to
pay after been advised
of the amount sought by the respondent. He
goes so far, as too even promised to settle the entire debt within
six months. In these
circumstances, the respondent argues that the
applicant has not advanced a bona fide defence. The respondent thus
seeks the application
for rescission to be dismissed with costs.
21. The notion by the applicant that
Rule 42(1) (a) has application because the judgment was erroneously
sought cannot succeed.
To succeed the applicant needs to show that
there was a fact that the court which granted the default judgment
was unaware of and
as such would not have granted the judgment had it
been appraised of that fact.
22. In this case, this is not so,
because from the facts and the documents before me there is no
evidence that the agreement as
suggested by the applicant mentioned
above existed.
23. Adv. Coetsee, for the applicant,
argued that the respondent had a duty of care as the collecting bank
to the applicant and as
crime was rife in our country, this duty was
more onerous. Adv. Shepard, for the respondent argued that the
relationship between
the respondent and the applicant was one based
on contract, in that it was that of debtor and creditor. In this
instance, the duty
of care was not an issue that come into play.
24. I will deal with the duty of care
issue first. The relationship between a bank and its client is either
mandatory or that of
debtor and creditor. It is never fiduciary in
nature. To this end I refer to Louw NO and others v Coetzee and
Others
2003 (3) SA 329
at 334H-I [12]:
“It is trite that when a customer
of a bank deposits money in an account the money becomes the property
of the bank, which
in turn, as debtor of the customer, has an
obligation to pay the customer as creditor the amount deposited. The
bank does not hold
the money for the customer as agent or trustee: it
becomes the owner and has only a personal obligation to repay the
amount together
with interest if agreed.”
25. I agree with the respondent’s
argument that the decision of the Ombudsman was at hand before the
respondent issued and
served the summons on 29 August 2013.
Therefore, the respondent could not have agreed to that as suggested
by the applicant, as
the Ombudsman as far back as 12 July 2013 had
already taken the decision.
26. The approach to be adopted when
dealing with rescission matters is stated in Colyn v Tiger Food
Industries LTD t/a Meadow Feed
Mills (CAPE)
2003 (6) SA 1
at 9E-F:
“With that as the underlying
approach the Courts generally expect an applicant to show good cause
(a) by 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 plaintiffs claim which prima facie has
some prospect of success (Grant v
Plumbers (Pty) Ltd, HDS Construction
(Pty) Ltd v Wait supra, Chetty v Law Society, Transvaal).’’
27. From the pleadings there is nothing
on papers indicating why the applicant did not defend this matter
after he was personally
served with the summons, if from the onset he
disputed the debt. In fact, after receipt of summons, the applicant
immediately liaised
with the respondent, admitted the debt and even
offered to settle the debt in full.
28. In light of this evidence, how can
the applicant come and state that he now disputed the debt but just
offered to settle same.
In my mind, the applicant’s letters of
13 September 2013 and 23 September 2013 places all in perspective.
Bearing in mind
that these are documents put up by the applicant as
annexures to his founding affidavit.
29. The documents and pleadings of the
applicant are at variance with that which the applicant seeks this
court to believe.
30. In the circumstances, in my view,
no good cause has been shown by the applicant that his conduct was
not wilful. Further, his
explanation does not indicate that his bona
fide to the claim of the respondent and that his defence to the
respondent’s
claim is bona fide or even prima facia to say the
least.
31. In conclusion the recession
application is dismissed with costs.
W. Hughes Judge of the High Court
Attorney for the Plaintiff: GERHARD
VAN ZYL ATTORNEYS
1235 Cobham Road
Queenswood
PRETORIA
Tel: 012 333 8290
Ref: GN5316/C ROUX/cs
Attorney for the Defendant: MOTHLE
JOOMA SABDIA
Ground Floor Duncan Manor Cnr Duncan
& Brooks Street PRETORIA Tel: 012
Ref: A VAN DER MERWE/nb/JK522