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[2015] ZAGPPHC 467
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Standard Bank of South Africa Limited: Vehicle And Asset Finance Division v Bahlodi Cameron (Pty) Ltd (57768/2014) [2015] ZAGPPHC 467 (12 June 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 57768/2014
DATE:
12 JUNE 2015
In
the matter between
THE
STANDARD BANK OF SOUTH AFRICA LIMITED:
VEHICLE
AND ASSET FINANCE
DIVISION
.....................................................................
Applicant
And
BAHLODI
CAMERON (PTY) LTD
(Reg
No:
2006/001996/07)
......................................................................................................
Respondent
JUDGMENT
KOOVERJIE
AJ:
A.
NATURE OF THE APPLICATION:-
1. This
rescission application was launched by the Defendant in the main
action. For the purposes of this judgment and correctly
so, Bahlodi
Cameron (Pty) Ltd should have been referred to as the “Applicant”
and the Respondent as "Standard
Bank of South Africa Ltd Vehicle
and Asset Finance Division”, which will be referred to as the
“Bank”.
2. This
application , although initiated by the Applicant, was pursued upon
the insistence of the Bank.
B,
BACKGROUNP:-
3. A vehicle
(Toyota Etios) was financed by the Bank. The vehicle is more fully
described as a 2014 Toyota Etios 1...................
L, bearing
engine number 2............... and chassis number
MBJ.................. An instalment sale agreement in respect of this
vehicle, was entered into between the parties whereby the Applicant
was subjected to stipulated terms and conditions regarding
the
repayment to be made.
4.
The Applicant breached such agreement in that it failed to make
regular payments. The total outstanding balance
with arrear payments
and interest as claimed for in the summons is R166 771,95.
5.
Default judgment was granted by the Registrar in terms of Rule 31 (5)
of the Rules whereby the following order
was made -
(a)
Cancellation of the agreement;
(b) Return
of the vehicle;
(c) Costs
of suit and Sheriff’s fees.
6.
By virtue of this order, the Bank had indeed cancelled the agreement
and the vehicle was repossessed by it.
C.
POINTS
IN
UMINE:-
7. The Bank
raised various points in limine and requested the Court to dismiss
the application namely:
7.1 A
proper application, properly deposed by the Applicant to is not
before Court;
7.2 The
Applicant chose an address which does not fall within the
jurisdiction of this Court in terms of Rule 6 (5) (b) (i);
7.3 The
Applicant does not identify the Rules of Court upon which it seeks
rescission.
D.
ANALYSIS:-
8. This Court has
taken cognisance that the Applicant was not well informed regarding
the procedure in this Court with respect to
rescission applications
of this nature. On its own admission the deponent confessed that it
was not “au fait” with
the rules and procedures of Court.
9. In weighing up
facts in an application for the rescission of a default judgment, the
court must balance the need of an individual
who is entitled to have
access to court and to have his dispute resolved in a fair public
hearing before a Court. Such approach
is in accordance with Section
34 of the Constitution.
•
No
Appearance
10. Neither
the deponent Mr Earl Abrahams nor a legal representative for the
Applicant attended the hearing.
11. This
Court was informed by counsel for the Bank that Mr Abrahams was
personally contacted by the Bank’s instructing
attorney and
notified of the hearing. The attorney of the Applicant had since
withdrawn as attorney on record.
12. A
tetter confirming the aforesaid was submitted from the bar by counsel
for the Respondent.
13. This
Court is satisfied that Mr Abrahams was aware of these proceedings.
•
Grounds
for Rescission
14.
It is
trite law whether the Applicant relies on Rule 31 (2) (b), the Rules
of Court or the common law - “sufficient or good
cause”
must be shown in order to satisfy the Court. These phrases have been
considered to be synonymous and interchangeable
[1]
.
15. In
order to show good cause is necessary:
The
Applicant should at least have a reasonable and acceptable
explanation for the default; and
The
Applicant should show the existence of a bona fide defence, that is
one that has some prospect or probability of success
[2]
.
16.
In
Harms
v ABSA Bank Ltd t/a Volkskas
2006
(4) SA 527
(T) at 530
Moseneke
J (as he then was) referred to De Witts Auto Body Repairs (Pty) Ltd v
Fedgen Insurance Co Ltd
1994 (4) SA 705E
at 708G where Jones J
reiterated that an application for rescission should be not an
enquiry to penalise a party for failure to
follow the Rules and
procedures laid down for civil proceedings in our Courts.
The
primary question should always be whether or not the explanation
default gives rise to a probable inference that there is a
bona fide
defence? In this regard the interest of both parties should be
weighed accordingly.
17.
Having
considered the facts in this matter, this court is aware that the
Applicant must satisfy both of the requirements aforesaid.
For
instance a party that has no prospects of success on the merits will
fail no matter how reasonable and convincing the explanation
for his
default is
[3]
.
18. Even if
this court accepts the explanation proferred by the Applicant on the
papers that he did not receive the summons
it must further satisfy
this Court that he has a bona fide defence with some prospect of
success.
19. Insofar
as the merits are concerned, the Applicant relies on “negotiating
a settlement" with the Bank in respect
of the outstanding
payments. There is no evidence on the papers to substantiate such a
settlement between the parties.
20.
Furthermore the Applicant’s conduct by not pursuing this
application itself is a further factor this court would
take into
account when weighing up whether it has a bona fide defence.
•
Applicant’s
case
21. On the
papers, the Applicant raised the following issues in dispute:
21.1 The
Applicant claims that the arrears on his account was paid;
21.2 There was an
accepted "settlement" negotiated with the Bank;
21.3 The
Applicant had not received a copy of the summons and was thus not in
a position to defend it.
•
Bank’s
case
22. The
Bank contended that it had property applied for default judgment as
the attempt to settle the arrears was only made
after the matter was
referred for default judgment.
23. In any
event the Applicant remains in debt as it failed to settle the full
outstanding balance.
24. The
Bank has no knowledge of an “accepted settlementThere appears
no record written or oral that such settlement
was indeed negotiated
with a Bank official.
25. The
Bank contended that summons was duly served in accordance with the
Rules of Court, Rule 4 (1) (a) (iv) and (v) - by
leaving a copy at
the address chosen by the Defendant as well as affixing a copy to the
main door of the business address.
E.
FINDINGS:-
26. The
Court finds that the Applicant has failed to show good cause. It has
not presented a defence that is sustainable and
can be considered to
be bona fide. In particular, no evidence was presented regarding the
purported settlement negotiations. Such
enquiry would include: with
whom at the Bank was such settlement made; What were the basis of the
settlement; and where was this
settlement made?
Consequently
the application would not succeed.
F.
COSTS:-
27. Counsel
for the Bank particularly requested that the costs include the cost
of 12 December 2014, where the matter did
not proceed and counsel was
instructed to appear on such date.
28. The
Court file does not make reference to the aforesaid. I am therefore
inclined to consider only the costs for the application
set down for
4 June 2015.
G.
ORPER:-
The following
order is made:
(1) The
application is dismissed with costs, which includes the costs of the
application set down for 4 June 2015.
H K KOOVERJIE
ACTING JUDGE OF THE HIGH COURT
DATE
OF HEARING: 8 June 2015
JUDGMENT
DELIVERED: 12 June 2015
FOR
THE APPLICANT: No appearance
ATTORNEYS
FOR THE APPLICANT: Newtons
FOR
THE RESPONDENT: Adv T J Jacobs
ATTORNEYS
FOR THE RESPONDENT: Iqbal Mohamed Attorneys
J
Silber v Orzen Wholesalers (Pty) Ltd
1954 (2)
SA 345
at 352H-353A
[2]
Chetty v Law Society of Transvaal
1985 (2) SA 756
(A) at 764J,
765A-D
[3]
Chetty
v Law Society supra at 765D-E