About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 1065
|
|
Mokgatle v Absa Bank and Another (82195/2014) [2015] ZAGPPHC 1065 (7 August 2015)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 82195/2014
DATE:
07 AUGUST 2015
MODISE
JOSEPH
MOKGATLE
.......................................................................................
APPELANT
And
ABSA
BANK
..............................................................................................................
1
st
RESPONDENT
SHERIFF
OF THE HIGH
COURT
........................................................................
2
nd
RESPONDENT
JUDGMENT
KHUMALO J
INTRODUCTION
[1]
The Applicant in this matter is seeking an order that the
Judgment entered in default against it on 15 September 2014 by the
registrar
in the above honourable court be rescinded.
[2]
Applicant's has brought the Application in terms of Rule 42
(1) alleging that the judgment was erroneously granted for the reason
that the summons that was served upon Applicant was not issued by the
Registrar in the sense that it did not have a case number
and also
that at the time when 1
st
Respondent sought judgment by
default there was an arrangement, with which he was complying, to
settle the outstanding arrears.
Historical
background
[3]
On 30 May 2012 Applicant bought from the 1
st
Respondent a motor vehicle on an installment sale agreement to the
value of R573 900 which he was to repay together with the interest
and ancillary charges thereto in instalments of R 10 053.42 over a
period of 72 months. In terms of the agreement the 1
st
Respondent was to remain owner of the vehicle until the full purchase
price has been paid in full and on Applicant's failure to
make
payment of any of the installments payable on due date, First
Respondent was to be entitled to institute legal proceedings
to
repossess the vehicle.
[4]
On or about May, Applicant was in default with the payment of
his installment and the arrears amounts owing came to R102 889.98
(One Hundrend and Two Thousand Eight Hundrend and Eighty Nine and
Ninety Eight Cents). The First Respondent sent a Notice in terms
of
s
129
of the
National Credit Act, 34 of 2005
by registered post to him.
The Notice was collected by the Applicant's cousin who brought it to
his attention albeit allegedly
late. Summons was subsequently served
at Applicant address on Applicant's cousin. Applicant confirms having
sight of the summons.
[5]
On receipt of the
s 129
letter Applicant contacted the 1
st
Respondent and made enquiries regarding the arrears payable. During
that period in July 2014 he also advised the First Respondent
that he
will settle the arrears in three weeks and thereafter bring his
installments up to date. 1
st
Respondent proceeded with
legal proceedings and served a summons on him on 31 July 2014. The
Applicant failed to settle the arrears
as per his word however made
various payments between the period August - November 2014 in the
amount of the installment with a
surplus of a R 1000 or R2000 on two
instalments. On 15 September 2014, 1
st
Respondent obtained
default judgment against Applicant who by then still had not entered
an appearance to defend and not settled
the arrears that 1
st
Respondent alleged were at the time amounting to R 143 424.91.
[6]
The Applicant's contention is that the summons did not comply
with
Rule 17
, a defect so serious that the summons lacked validity
and therefore the judgment that was granted on the basis thereof
ought to
be nullified. Also he alleged that since he was paying his
installment at the time, the application for default judgment was
premature.
[7]
The 1
st
Respondent denies that judgment ought to be
rescinded for the reasons stated by the Applicant alleging that its
summons were properly
issued and handed to the sheriff for service
upon the Applicant. The sheriff then brought back the original
summons and its return
of service bearing the case number as was
allocated by the Registrar and reflected on the original summons. It
also denies that
there was an arrangement between itself and the
Applicant and points out that even if that was the case, the
Applicant on its own
version indicates that it made payment that did
not comply with the alleged arrangement and did not settle the
arrears.
[8]
The question that arises is whether or not
[6.1]
service of the summons on the Applicant without a case number
amounts to a procedural irregularity that nullifies the proceedings?
[6.2]
the 1
st
Respondent's seeking of a default judgment
against the Applicant on September 2014 was erroneous, as a result to
be rescinded.
[8]
A summons is a process that commences civil proceedings and
there is therefore a an obvious need that it is in due and proper
form,
hence the terms of
Rule 17
are regarded as peremptory in
nature. However it was accepted in Western Bank Bpk v De Beer en
Ander 1975 (30 SA at 774D-F, that
notwithstanding the peremptory
nature of
Rule 17
, by virtue of the provisions of
Rule 27
(3)
substantial compliance with a particular provision would be a
sufficient basis for condonation. Therefore whether a step or
proceeding is to be judged as being so irregular or defective that it
constitutes a nullity (that which cannot be condoned) appears
to be a
question of degree, which has resulted it seems in a differentiation
of non- compliance that is regarded as an irregularity
and one that
is regarded as a nullity.
[9]
The relevant
Rule 17
(3) © that is applicable in casu
reads the summons shall be signed and issued by the registrar and
made returnable by the
sheriff to the court through the registrar."
[10]
It has been suggested as indicated in Erasmus Superior Court
Practice by Farlam, Firtchrd and Van Loggerenberg that issue by
registrar
probably means steps taken by the registrar, inter alia,
noting the summons in his office, allocation of a case number,
stamping
it with the stamp of his office and "send out". A
summons which has not been issued by the registrar is said to be a
document to which the registrar is not party and which does not
emanate from his office and therefore would not constitute a summons
it would be a nullity. See Minister of Prisons and Another v
Jongilanga 1985 (3) 117 (A) at 123H Eloff AJA held that
"It
stands to reason that when the basic component of an action, viz the
issue of a summons by a registrar, is absent, the
court will not
condone the omission."
[11]
In this matter we have to establish whether the summons was
issued when a copy of thereof was served on the Applicant, because if
it was not issued, the proceedings would have resulted in a nullity.
[12]
The original summons dated 4 June 2014 exhibits a case number
40369/14, the registrar's stamp that was affixed on 4 June 2014 and
signatures of the Plaintiffs attorney of record and the registrar
thereto affixed. The sheriff's return is dated 15 July 2014 and
reflects that service of the summons was effected on 15 July 2014.
Therefore at the time when the summons was served upon the Applicant
it fully complied with the provisions of
s 17
, properly issued and
signed by the registrar.
[13]
Since when the judgment was sought and granted by the court
the documents were not tainted by any irregularity nor nullity, the
decision of the court to grant judgment was not erroneous. On that
ground the rescission application must fail.
[14]
On the issue of an agreement I need not take the matter any
further as proven by the evidence, that there was no agreement.
Applicant
in that regard failed to comply with his own commitment to
settle the arrears and when judgment was sought and granted the
amount
of the arrears had increased notwithstanding him resuming the
installments that regrettably did not cover the arrears. Wallis j
in
BMW Financial Services v Donkin 15548/08[2009]ZAKZDHC 17;
2009 (6) SA
63
(KZD) that
"the
NCA makes express provision for a consumer who falls into arrears to
prevent the credit provider from exercising a right
of cancellation,
even one that has accrued, by paying the arrears, together with
default charges and the reasonable costs of enforcing
the agreement
up to that stage."
[15]
Under the circumstances there is no ground for alleging that
the court granted the judgment erroneously.
It
is therefore ordered
1.
The Application for rescission is dismissed with costs on an
attorney and client scale.
2.
The order of the registrar dated 15 September 2014 stands.
For
the Applicant: GF JANSEN
Instructed
by: ROOTH & WESSEL INC
PRETORIA
For
the Respondent: MZSEIMA
Instructed
by SELOANE VINCENT ATTORNEY
PRETORIA
N V KHUMALO J
JUDGE
OF THE HIGH COURT GAUTENG DIVISION: PRETORIA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)