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[2015] ZAGPPHC 706
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Firstrand Bank Limited t/a RMB Private Bank v Pienaar and Others (25117/10) [2015] ZAGPPHC 706 (13 August 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA,
PRETORIA
JUDGMENT
Not
reportable
Case
no: 25117/10
In.the
matter between:
FIRSTRAND
BANK LIMITED t/a RMB
PRIVATE BANK
Plaintiff/Applicant
and
WILLEM
FREDERICK PIENAAR
1st
Defendant/Respondent
ELAMARIE
PIENAAR
2nd
Defendant/Respondent
KAIZAN
TRADING PROMOTIONS CC
3rd Defendant/Respondent
JUDGMENT
MNGQIBISA-THUSI
, J
[1]
The plaintiff is seeking summary judgment against the defendants,
jointly and severally, the one to pay the other to be absolved,
for:
1.1
payment in the amounts of R3 715 846.11.
1.2
payment of interest on the amount of R3 715 846.11 at
the rate of
7.1% per annum, from 10 May 2014 to date of the final payment,
such interest calculated daily and compounded
monthly in arrears.
1.3
Costs on an attorney and client scale.
[2]
Against the first defendant for an order declaring the immovable
property described below specially executable, namely:
Section
No. 1 as shown more fully described on Sectional Plan no. SS1065/1998
in the scheme known as HAARTEBEESFONTEIN 324- JR/246
in respect of
the land and buildings situated at Portion of 246 of the farm
HAARTEBEESFONTEIN, Registration Division JR, province
of Gauteng,
Local Authority: City of Tshwane Metropolitan Municipality, of which
section the floor area, according to the said
sectional plan is
412
(Four Hundred and twelve) square metres in extent, and an undivided
share in the common property in the scheme apportioned to
the said
section in accordance with the participation quota as endorsed on the
said sectional plan held by Deed of Transfer No:
ST26283/2006.
[3]
During May 2004, the plaintiff granted the first defendant a housing
loan, which was covered by a mortgage bond over an immovable
property
situated on Portion of 246 of the farm HAARTEBEESFONTEIN (immovable
property). The loan was granted for the acquisition
of the immovable
property. The second and third defendants bound themselves as
sureties for the first defendant's debts to the
plaintiff.
[4]
The first defendant defaulted on his monthly instalments. As a
result, of the default, the plaintiff issued summons and the
first
defendant did not file a notice of intention to defend.
On 11 October 2010, default judgment was
granted against the
defendants.
[5]
On 30 October 2013 the defendants obtained an order rescinding the
default judgment on the following terms:
5.1
"That judgment by default be and is hereby rescinded,
costs in
the cause.
5.2
That no costs are allowed for drafting founding, answering
and
replying affidavits of both parties."
[6]
In the founding affidavit to the rescission application, the
following grounds were presented as to why the default judgment
should be rescinded:
6.1
that
the
plaintiff
had failed
to
show
that the
notice
in terms
of section
129 (1) (a) of the National Credit Act
[1]
(the
Act) was
delivered to the first
defendant;
6.2
that the
plaintiff had not complied with the with the
Sebola
[2]
judgment.
[7]
On 28 May 2014, the plaintiff served the first and second defendants
with a fresh Section 129 (1) (a) notice and on the third
defendant on
29 May 2014. After the period stipulated in the notice expired and
the defendants had not applied for debt review,
the plaintiff filed a
new application for default judgment, which was served on the
defendants' attorneys on 7 August 2014.
[8]
On 3 September 2014, the defendants served the plaintiff with a
notice of intention to defend. As a result, the plaintiff filed
an
application for summary judgment against the defendants. The
defendants did not, however, file an affidavit resisting
summary
judgment. The application for summary judgment was set
down on the unopposed roll for 27 October 2014.
[9]
On the day of the hearing of the application for summary judgment,
the defendants counsel raised a point
in
limine
in the form of an application in terms of Rule 30(1) of the
Uniform Rules of Court. In the Rule 30(1) application, the defendants
seek the striking off the plaintiff's summary judgment application on
the ground that it was an irregular step.
[10]
In support of the Rule 30(1) application, Mr Van Der Merwe, counsel
for the defendants, submitted that it was irregular for
the plaintiff
to seek summary judgment without having served the defendants with a
notice of bar after Preller J had granted the
order rescinding the
default judgment on 30 October 2013. Counsel argued that in the
founding affidavit of the rescission of judgment,
the defendants had
shown, besides the fact that the section 129 notice was not
effectively delivered to them, that the defendants
had bona fide
defences to the plaintiff's claim. Counsel further argued that in
view of the defendants' disclosed bona fide defences,
the plaintiff's
claim, it was incumbent on the plaintiff, once the default judgment
was granted, to request the defendants to file
their plea, failing
which to serve the defendants with a notice of bar. In short, what
the defendants' counsel argued, was that
although the default
judgment was rescinded mainly due to the fact that the court found
that there was no evidence showing that
the section 129 notice
effectively served on the defendants, because the defendants had
raised other bona fide defences in the
founding affidavit, the court
impliedly granted the defendants leave to defend. Counsel submitted
that it was therefore necessary
for the plaintiff to serve them with
a notice of bar.
[11]
Mr Maritz Counsel, counsel for the plaintiff, submitted that the
application for summary judgment was not an inappropriate
step in
that the rescission of the default judgment was granted solely on the
ground that the plaintiff could not prove that the
section 129 notice
was delivered to the defendants. Mr Raubenheimer, counsel for the
plaintiff in the application for rescission,
who was present at the
hearing of the rescission application, has filed an affidavit in
which he confirms that the court granting
the rescission order did
not deal with the merits of the plaintiff's case. The court
rescinded the default judgment solely
on the ground that there was no
proper delivery of the section 129 notice.
[12]
Plaintiff's counsel argued that once the court rescinded the default
judgment, the parties were taken back to the position
they were at
when summons were issued. Since the plaintiff had re-served the
section 129 notice on the defendants and the defendants
had not
applied for debt review, the plaintiff was entitled to apply for
default judgment. Counsel submitted that when the default
judgment
was served on the defendants, that were an opportune moment for the
defendants to have served the plaintiff with a Rule
30 Notice if they
felt that the application for default judgment was an irregular
step. Instead, the defendants served the
plaintiff with a notice of
intention to oppose. Counsel further argued that once the defendants
had taken the procedural
step to communicate their intention to
oppose the granting of default judgment, it was open to the plaintiff
to seek summary judgment.
Since the defendants oppose such
application, they should have filed an affidavit resisting summary
judgment, which they failed
to do.
[13]
Rule 30 of the Uniform Rules of Court reads as follows:
"30
Irregular proceedings
(1)
A party to a cause in which an irregular
step has been taken by any
other party may apply to court to set it aside.
(2)
An application in terms of subrule
(1) shall be on notice to all
parties specifying particulars of the irregularity or impropriety
alleged, and may be made only if
-
(a)
the applicant has not himself taken a further
step in the cause with
knowledge of the irregularity;
(b)
the applicant has, within ten days
of becoming aware of the step, by
written notice afforded his opponent an opportunity of removing the
cause of complaint within
ten days;
(c)
the application is delivered within
fifteen days after the expiry of
the second period mentioned in paragraph (b) of subrule (2)."
[14]
As correctly pointed out by counsel for the plaintiff, once a party
whose view is that the other party has taken an irregular
step takes
a further step in the proceedings, like filing a notice to oppose,
such party is precluded after taking such further
step, from filing a
Rule 30 notice. I am satisfied that the plaintiff was entitled, once
the first defendant served it with the
notice of intention to oppose,
to file its application for summary judgment.
[15]
Nothing turns on the fact that the defendants, in their
application for the rescission of the default judgment, alluded
to
having bona fide defences. The alleged bona fide defences were not
considered or taken into account by the court when grating
the order
of rescission. The court granting the rescission order did not go
into the merits of the rescission application. The
mere fact that the
defendants alluded in the founding affidavit to defences it might
have with regard to the plaintiff's claim,
it was up to the court,
and not the defendants' belief/perception, to determine whether the
defences raised are bona fide defences
after argument on whether
there are bona fide defences or not. I am therefore of the view that
the point regarding the defendants'
Rule 30 ought to be dismissed.
Nothing stops the plaintiff from setting down the application for
summary judgment. It is up to
the defendants to decide whether to
oppose the plaintiff's summary judgment by filing an affidavit
resisting summary judgment.
[16]
Accordingly, the following order is made:
1.
The application in terms of Rule 30 of the Uniform Rules of Court
is
dismissed with costs.
2.
The defendants are granted leave to file an affidavit resisting
summary
judgment, if any, within 30 court days from the date of this
order.
______________________
NP
MNGQIBISA-THUSI
Judge
of the High Court
Appearances:
For
Plaintiff: Adv S Maritz
Instructed
by: Tim Du Toit Attorneys Inc For Defendants: Adv A Botha
Instructed
by: Van Heerden and Krugel Attorneys
[1]
Act
34
of 2005.
[2]
This is reference to
Sebola
and Another
v
Standard
bank
of
SA Ltd and Another
2012
(5) SA
142 (CC).