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[2015] ZAGPPHC 915
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Felix v Firstrand Bank Limited (63062/2013) [2015] ZAGPPHC 915 (23 June 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 63062/2013
DATE:
23 JULY 2015
In
the matter between:
JOSE
ANTONIA PESTANA
FELIX
.................................................................................
APPLICANT
And
FIRSTRAND
BANK
LIMITED
....................................................................................
RESPONDENT
JUDGMENT
COLLIS
AJ:
INTRODUCTION
[1]
In the present application the Applicant
seeks an order for the rescission of a summary judgment taken against
him on 5 February
2014. The application is brought in terms of the
provisions of Uniform Rule 31(2) (b) and was opposed by the
Respondent.
BACKGROUND
[2]
On or about 19 September 2012 the
parties entered into a written instalment sale agreement in terms
whereof the Applicant obtained
finance from the Respondent in respect
of a 2012 Volkswagen Polo GTI 1.4 TSI DSG motor vehicle with engine
number [C…………]
and
chassis number [W…………]
.
[3]
In terms of the agreement the total
amount payable by the Applicant to the Respondent was an amount of R
384 914.10 of which the
first instalment was payable on 20 October
2012 and thereafter 58 monthly instalments of R 5319.89 were to be
made on each successive
month, with the final instalment of R 81
660.00 to be made on 20 September 2017.
[4]
The agreement further provided, at all
material times, that the Respondent would remain the owner of the
motor vehicle until the
Applicant had paid all amounts due under the
agreement and in the event of the Applicant failing to comply with
any of the terms
and conditions provided for in the agreement, or
failing to pay any amount due under the agreement, the Respondent
would be entitled,
at its election and without prejudice to obtain an
order for the return of the motor vehicle; to retain all payments
already made;
and to claim as liquidated damages if necessary any
shortfall due to it in terms of the agreement.
[5]
In breach of the agreement, the
Applicant failed to make due and punctual payments of the monthly
instalments payable in terms of
the agreement, and as at 19 September
2013, was in arrears in the amount of R 24 659.42.
UNIFORM
RULE 31(2)(b)
[6]
Rule 31(2) (b) provides as follows:
“A defendant may within twenty (20) days after he or she has
knowledge of such judgment apply to court upon notice to the
plaintiff to set aside such judgment and the court may, upon good
cause shown, set aside the default judgment on such terms as to
it
seems meet”
[7]
In order to meet the requirements for an
application for rescission of judgment under Rule 31(2) (b) an
applicant must show the
following:
(a)
He (the Applicant) must give a
reasonable explanation for his default. If it appears that his
default was
willful
or that it was due
to gross negligence the Court should not come to his assistance.
(b)
His application must be bona fide and
not made merely with the intention to delay the Plaintiffs claim;
(c)
He must show that he has a bona fide
defence to the Plaintiff’s claim. It is sufficient if he makes
out a prim i facie defence
in the sense of setting out averments
which, if established at trial, would entitle him to the relief he
asked for.
[1]
He need not deal fully with the merits of the case and produce
evidence that the probabilities are actually in his favour.
[8]
A court must therefore in this
application for rescission decide whether
‘
sufficient
cause’
has been shown to rescind
the judgment. In Chetty v Law Society Transvaal
1985 (2) SA 756
(A)
the requirements of this concept were considered by Miller JA as
follows at 756A-C:
‘The term
sufficient
cause
(or good cause) defies precise or comprehensive
definition, for many and various factors require to be considered.
But it is clear
that in principle and in the long standing practice
of our Courts two essential elements of ‘sufficient cause’
for
rescission of judgment by default are:
(i)
that the party seeking relief must present a
reasonable and acceptable
explanation for his default:
and
(ii)
that on the merits such party has a
bona
fide defence which ptima facie,
carries
some orosoect of success.
”
[9]
I will proceed to deal succinctly with
the requirements as mentioned above.
ABSENCE
OF WILFULNESS
[10]
The wilful or
negligent
nature of the defendant’s default
is one of the considerations which the court takes into account in
the exercise of its discretion
to determine whether or not good cause
is shown.
[2]
It then follows that the reasons for the Applicants’ absence of
default must be fully set
out,
because
it is relevant
to the
question
whether or not, his or her default was wilful. In Silber v Ozen
Wholesalers (Pty) Ltd
[3]
it was held that the explanation for the default must be sufficiently
full to enable the court to understand how it came about
and to
assess the applicant’s conduct and motives.
[11]
Before a person can therefore be said to
be in wilful default, the following elements must be shown:
(a)
knowledge that the action is being
brought against him or her;
(b)
a deliberate refraining from
entering an appearance, though free to do so; and
(c)
a certain mental attitude towards
the consequence of default.
[12]
In his Founding affidavit
[4]
the Applicant sets out that although he had filed a notice of
intention to defend on 1 November 2013, his failure to have filed
an
opposing affidavit to the summary judgment application, was due to
his attorney's practice, C L Gordon Attorneys, having been
closed for
the Jewish holidays. The application for summary judgment wherein
judgment was granted against him was served on his
attorney on 19
November 2013 and filed with the registrar of the court the following
day for hearing on -he 5
th
February 2014.
[13]
The applicant’s affidavit is
silent as to the period for which his attorneys practice was closed
and as to when his attorney’s
practice eventually reopened.
[14]
Furthermore, even if the court were to
accept that the Applicant’s attorneys practice was closed for
the holidays, in terms
of Rule 32, the Applicant had until 12h00 on 3
February 2014, to file an opposing affidavit and the dies for him to
have opposed
the application would not have expired until then. The
Applicant failed to file any affidavit resisting summary judgment.
[15]
In addition hereto, the Applicant’s
allegations in the founding affidavit are not supported by a
confirmatory affidavit deposed
to by his erstwhile attorney,
confirming the closure of his practice for the period in question.
Furthermore there is no explanation
from the Applicant’s
erstwhile attorney as why the attorney failed to resist the summary
judgment application.
[16]
In the absence of a sufficiently full
explanation concerning the Applicant’s default, this Court is
not placed in a position
to assess the absence of wilfulness on his
part and as a consequence I cannot find that the Applicant has met
the first requirement
of absence of wilfulness.
BONA
FIDE DEFENCE
[17]
The first defence raised by the
Applicant appears in paragraph 13 to the founding affidavit. Therein
the Applicant disputes that
the
Respondent
has
a valid and binding agreement with him, as no representative of the
Respondent ever signed the terms and conditions.
[18]
Ex facie
the terms and conditions
attached to the agreement; the signature of the Applicant appears on
each and every page. Furthermore,
in paragraphs 25 and 26 to the
founding affidavit, the Applicant alleges that the dispute between
himself and the Respondent commenced
during September 2013. Further
that around that
time
he approached the Respondent in order to make arrangements to settle
his arrears. The Applicant now alleges that the failure
on the part
of the Respondent to append a signature to the terms and conditions
renders the agreement invalid. The Applicant’s
contention in
this regard is contradictory as it begs the question as to why he
would enter into negotiations with the Respondent
in order to settle
his arrears, in circumstances where no valid agreement was in
existence.
[11]
The denial that a valid and binding
agreement was concluded at best can be described as opportunistic as
all objective facts point
thereto that indeed the parties had a
meeting of minds which resulted in a written agreement
[12]
The second defence raised by the
Applicant relates to his election to refer the matter for dispute
resolution upon receipt of the
section 129 notice. As per paragraphs
30 to 34 of his founding affidavit, he conveyed this election to a
representative of the
Respondent and to date he has not received a
reply from them.
[13]
The referral of the matter for dispute
resolution flies in the face of what is stated by the applicant in
paragraph 26 to his founding
affidavit, which reads as follows:
“During or about that period of time I approached a
representative of the Plaintiff in order to make arrangements with
regard
to the arrears on the said vehicle but was advised that they
require the full outstanding amount in this regard or nothing. ”
[22]
The Applicant’s election to make a
referral was only made after his proposal to settle the arrears was
rejected by the Respondent-
The referral was merely a guise and not
for the resolution of a genuine dispute that required intervention.
[23]
Furthermore, even if this Court is to
accept on his contention that indeed a real dispute existed, the
Applicant has been less than
candid in explaining what steps he had
taken, to refer such dispute.
[24]
The last defence raised by the Applicant
is that the Respondent’s claim is illiquid and as such summary
judgment ought not
to have been granted on this basis.
[25]
On 5 February 2014, summary judgment was
granted against the Applicant for the return of the motor vehicle. In
terms the summary
judgment granted, the Respondent was authorised, in
the event of a shortfall, to apply on the same papers for any damages
due to
it.
[26]
In this regard, the provisions of
Uniform Rule 32(1 )(c) reads as follows:
'(1)
Where the defendant has delivered notice of intention to defend, the
plaintiff may apply to
court
for
summary judgment on each of such claims in the summons as is only-
(a
)
.............................................................
;
(b
)
.............................................................
;
(c)
for
delivery of specified movable property; or
(d)
for
ejectment;
together
with any claim for interest and costs.'
[27]
From the above, it is apparent that the
Respondent obtained summary judgment for the return of the motor
vehicle (delivery of specified
movable property), which the
provisions of Rule 32(1) (c) dearly permits. This defence at best is
therefore ill- conceived and
the legal representative who argued the
matter on behalf of the Applicant, conceded as much.
[28]
For the reasons as set out above, I
conclude that the Applicant has failed to present a reasonable
explanation for his default and
that he has a bona fide defence,
which prima facie carries some prospect of success.
[29]
In the result I make the following
order:
29.1
The application is dismissed with costs on a Party and Party scale.
J
COLLIS
ACTING
JUDGE GAUTENG DIVISION PRETORIA APPEARANCES:
FOR
APPLICANT: ATTORNEY M FEHLER
INSTRUCTED
BY: MERVYN FEHLER ATTORNEYS
FOR
RESPONDENT. ADVI OSCHMAN
INSTRUCTED
BY: BEZUIDENHOUT VAN ZYL & ASSOCIATES INC.
DATE
OF HEARING: 2 JUNE 2015
DATE
OF JUDGMENT 23 JUNE 2015
[1]
Grant v Plumbers (
Pty) Ltd 1949 (2) SA 470 (O)
[2]
Harris v Absa Bank
Ltd t/a Volkska6
2006 (4) SA 527
(T) at 530B-531B
[3]
1954 (2) SA 345
(A) at 353A
[4]
Founding Affidavit paragraphs 5 to 9