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[2015] ZAGPPHC 1008
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Lopes v Standard Bank of South Africa (69686/09) [2015] ZAGPPHC 1008 (19 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: 69686/09
DATE: 19 AUGUST 2015
In the matter between:
EMILIA LUCILLE SUSSANA
LOPES
...........................................................................
APPLICANT
And
STANDARD BANK OF SOUTH
AFRICA
..................................................................
RESPONDENT
LIMITED
Coram: HUGHES J
JUDGMENT
HUGHESJ
[1] This is an application for
rescission. The applicant seeks to rescind a judgment granted in
favour of the respondent on 14 September
2010 in the amount of R812
904.74.
[2] The applicant as the registered
owner of ERF 1275 Bonaero Park Extension 3 (the ERF) had two mortgage
bonds registered over
the property. The first mortgage bond
registered over the ERF was on 28 March 2007. In this instance the
domicilium address was
recorded as “33 PIACO AVENUE BONAERO
PARK EXTENSION 3”. The second mortgage bond registered over the
same ERF was concluded
on 30 May 2007 and a different domicilium
address was recorded, this being “24
JOHNSON RD BEDFORDVIEW BEDFORDVIEW
2008”.
Service of the section 129 notice and
the summons
[3] The respondent sent the section 129
notice in terms of the National Credit Act 34 of 2005 (the NCA) to 24
Johnson Road Bedfordview
and served the summons at 33 Piarco Avenue
Bonaero Park Ext 3. The applicant contends that she did not receive
both the section
129 notice and the summons. The explanation advanced
is that she did not receive the section 129 notice as she had changed
her
address which was provided to the respondent when she registered
the second mortgage bond.
[4] With regards to the aforesaid
address she submits that she had tenants living in the property, if
the summons had been served,
her tenant would have brought this to
her attention. The prima facie inference regarding the address where
the summons was served
is that this is the actual physical address of
the ERF, being 33 Piarco Avenue Bonaera Park Ext 3.
[5] The respondent submits that the
section 129 notice and the summons were served at the domicilium
addresses provided by the applicant
in respect of the entire debt.
She had not changed her address as she alleges but had provide the
respondent with a second domicilium
address and as such the
respondent argues, in terms of the Rules of Court, they are entitled
to serve the section 129 notice and
summons at any one of those
address.
[6] In addressing the respondent’s
argument regard is had to the case of SANDTON SQUARE FINANCE (PTY)
LTD v BIAGI, BERTOLA
AND VASCO
1997
(1) SA 258
WLD at 260F-G :
“There is nothing notionally
wrong in a party choosing more than one domiciliary address. Where
this is done, service at either
chosen address will in my judgment be
sound in law. There is consequently no merit in the first point
raised”
In causa, as submitted by the
respondent, this is exactly what happened with the applicant. She
opted to provide the respondent
with two domicilium addresses for her
debt with the respondent. In the circumstances the respondent is at
liberty to serve on any
one of the said addresses chosen by the
applicant as her domicilium address. The service was proper as it was
served on the applicant’s
chosen domicilium and at the
mortgaged property. The fact that it was not brought to her attention
by her tenants is no fault of
the respondent. This defence must
therefore fail.
Judgment erroneously granted
[7] The next defence that the applicant
raised is that at the time when judgment was granted her account with
the respondent was
not in arrears, thus the judgment was erroneously
granted in favour of the respondent. In addition she seeks to recover
what she
avers was an additional charged levied by the respondent on
her account of R173 000.00 to which the respondent was not entitled.
[8] I pause to acknowledge that after
the judgment was granted the parties entered into an agreement and
the applicant has since
paid the outstanding arrears. It is notable
from the papers that the applicant had omitted to advance what the
delay was in seeking
the rescission of this judgment was granted in
2010, the application having been launched in April 2014.
[9] The respondent disputes that the
judgment against the applicant was erroneously granting. The
respondent persist that at the
time when the judgment was granted the
account of the applicant was in arrears. In illustration of the
arrears the respondent demonstrated
by the production of the
applicants account history.
[10] The monthly debit order of the
applicant’s was in the amount of R10 156.45, the monthly
interest on the loan account
was R10 037.00, the service fee was
R42.00 and the insurance premium amounted to R274.19. On 20 October
2009 the applicant account
reflected an arrears amount of R79 542.29
with her instalment payments. Further, when summons was issued on 27
November 2009, for
the period
8 June 2009 until 5 November 2009, the
applicant had only paid an amount of R4 800.00 on 5 November 2009
towards payment to her
account.
[11] The account history reflected the
following payments having been made by the applicant, payments of R5
000.000 for a few months
that being December 2009, February 2010,
April 2010 and June 2010, which were substantially below what was
require. A payment of
R5 250.00 was then made in August 2010, a
payment of R98 600.00 on 25 January 2011, a payment of R5 250.00 on
April 2011 and a
payment of R11 000.00 in October 2011.
[12] The respondent conceded that the
applicant made payments but emphasised that this was done after the
judgment on 14 September
2010. The respondent rubbished the
applicant’s argument that she did not know of the legal
proceedings being pursued against.
It argued that it was clear from
the huge payment made in January 2011, of R98 600.00, that she was
well aware of the respondent’s
proceedings against her when she
made that payment.
[13] The respondent addresses an issue
that the applicant makes much of in her papers, which is the letter
she received stating
that as at 11 February 2011 no arrears were
reflected on her account. The respondent submits that this was five
months after judgment
had been granted on 14 September 2010 and the
arrears had been paid by the applicant. The respondent submits that
it was not an
error when judgement was granted as the account of the
applicant was in arrears.
[14] A further defence raised falls
within Rule 42(1 )(a) the order having been granted by the registrar
erroneously sought and
granted in the absence of the applicant. It is
only logical that the registrar would only be aware of facts in the
papers, which
were before him/her, and not aware of facts which were
not before the registrar when considering to grant judgment. Thus the
applicant
must demonstrate that there are facts which the registrar
was not aware of which would have prevented the registrar from
granting
the judgment. In this instance from the papers that were
before the registrar requesting default judgment, to me, all that was
necessary to grant the judgment was before registrar in order to
grant a valid judgment.
[15] Even if I examine the applicant’s
version that her account was not in arrears, which was not before the
registrar when
judgment was granted, the documentary evidence clearly
set out by the respondent, is that the applicant’s account was
in
indeed in arrears at the time when summons was served and judgment
granted. In fact the manner in which she conducted the account
leaves
much to be desired in that the big payment to settle the debt is made
is in January 2011, some five months after judgment
was granted in
September 2010. Thus in the face of the information which the
applicant places reliance upon, which was not before
the registrar,
there is no basis on the applicant’s version that could have
precluded the registrar from granting the judgment
that was granted.
[16] I am satisfied, that the
respondent has demonstrated that it was procedurally entitled to the
judgment that had been granted
by the registrar. See LODHI 2
PROPERTIES INVESTMENTS CC AND ANOTHER v BONDEV DEVELOPMENTS (PTY) LTD
2007 (6) SA 87
(SCA) at 94 paragraph [25] Streicher JA had the
following to say: “[25] However, a judgment to which a party is
procedurally
entitled cannot be considered to have been granted
erroneously by reason of facts of which the Judge who granted the
judgment,
as he was entitled to do, was unaware, as was held to be
the case by Nepgen J in Stander. See in this regard Colyn v Tiger
Food
Industries Ltd t/a Meadow Feed Mills (Cape)2003 (6) SA 1 (SCA)
([2003]
2 All SA 113)
in paras
9 - 10 in which an application in terms
of Rule 42(1 )(a) for rescission of a summary judgment granted in the
absence of the defendant
was refused notwithstanding the fact that it
was accepted that the defendant wanted to defend the application but
did not do so
because the application had not been brought to the
attention of his Bellville attorney. This Court held that no
procedural irregularity
or mistake in respect of the issue of the
order had been committed and that it was not possible to conclude
that the order had
erroneously been sought or had erroneously been
granted by the Judge who granted the order.”
Applicant’s claim for excessive
amount levied against applicant’s account
[17] Besides the rescission the
applicant also seeks to recover the amount of R173 000.00 which she
alleges was additional charges
that were levied against her account
for which the respondent was not entitled to. The applicant sought
that the amount charged
stood to be refunded, alternatively credited
against the capital amount that was outstanding on the account.
[18] The respondent explains that the
amount of R170 240.08 is made up of interest from 30 September 2009
up to 28 February 2011.
The interest had accumulated and was added to
the account when final settlement was reached after it was handed
back from the legal
department.
[19] The way I understand this amount
is that, interest that the respondent would have levied against the
account during the period
that the account was being pursued by the
legal cost department, is factored in when a final figure is required
to settle the arrears
in total. The respondent to my mind is entitled
to this amount.
[20] Though it is not raised as a
stand-alone defence in the applicant’s papers I will address
this issue as a purported counter-claim.
This information was not
before the registrar when the judgment was granted. Could it have
precluded the registrar from granting
the judgment? To my mind I do
not think so as the payment history put up in the papers at page 35
clearly reflect that interest
had not been debited for the aforesaid
period that is when at the legal department.
[21] This issue is address aptly by
Streicher JA in LODHI on 91 and 92 at paragraphs [17] and [18] of the
judgment:
“[17 In any event, a judgment
granted against a party in his absence cannot be considered to have
been granted erroneously
because of the existence of a defence on the
merits which had not been disclosed to the Judge who granted the
judgment. In support
of their contention to the contrary the
applicants relied on authorities such as Nyingwa v Moolman A/01993
(2) SA 508 (Tk) and
Stander and Another v Absa Ban!(1997 (4) SA 873
(E) to the effect that in an application for rescission of a default
judgment in
terms of Rule 42(1 )(a) a Court may in certain
circumstances have regard to facts of which the Judge who granted the
judgment was
unaware in order to determine whether the judgment had
been granted erroneously
[18] In Nyingwa at 51 OF - G White J
relying on Topol and Others v LS Group Management Services (Pty) Ltd
1988 (1) SA 639
(W); Frenkel, Wise & Co (Africa) (Pty) Ltd v
Consolidated Press of SA (Pty) Ltd'\
947 (4) SA 234
(C); Holmes Motor
Co v SWA Mineral and Exploration Co1949 (1) SA 155 (C) said:
'It therefore seems that a judgment has
been erroneously granted if there existed at the time of its issue a
fact of which the Judge
was unaware, which would have precluded the
granting of the judgment and which would have induced the Judge, if
he had been aware
of it, not to grant the judgment.'”
[22] In the circumstances on the
defences raised by the applicant dealt with above the applicant has
failed to make out a case for
the rescission of the judgment that was
procedurally correct even in the face of that which was not before
the registrar.
[23] In the result the following order
is made:
[21.1] the application for rescission
is dismissed with costs.
W
.
Hughes Judge of the High
Court