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[2015] ZAFSHC 81
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Standard Bank of South Africa v Chabane and Another (3300/2013, 969/2014) [2015] ZAFSHC 81 (23 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no.
3300/2013
969/2014
In
the matter between:
STANDARD
BANK OF SOUTH
AFRICA
............................................................................
Plaintiff
and
SEBUSE
DAVID
CHABANE
..........................................................................................
1st
Defendant
MPHO
JOYCE
CHABANE
............................................................................................
2nd
Defendant
HEARD
ON:
26 MARCH 2015
DELIVERED
ON
:
23
APRIL 2015
S
J REINDERS (AJ):
[1]
The Standard Bank of South Africa under case number 3300/2013 issued
summons against the two defendants for
inter
alia
payment of the amount of R115
661.43 together with interest thereon as well as a further order
declaring Erf 29, Mangaung, district
Bloemfontein specially
executable.
[2]
In its summons the plaintiff relied thereon that on or about the 13
th
March 2008 the plaintiff and the defendants entered into a written
agreement in terms of which monies were loaned and advanced
to the
defendants in terms of a home loan agreement and further that a
mortgage bond was registered as security for the repayment
of the
money. Plaintiff averred that due to the failure to repay
instalments on the due date as agreed upon, the plaintiff
is entitled
to the said judgment. Service was effected on the defendants on
the 9
th
day of September 2013 by the Sheriff by placing a copy of the said
summons in the post box of the
domicilium
citandi et executandi
of the
defendants.
[3]
On the 11
th
November 2013 the Registrar granted a judgment by default against the
defendants jointly and severally, the one to pay, the other
to be
absolved in the amount of R115 661.43 together with interest and
costs. The request ordering Erf 29, Mangaung,
specially
executable was referred to Open Court. This application was
served on the defendants according to the Sheriff on
M P Chabane on
the 17
th
January 2014.
[4]
On the 4
th
of March 2015 the defendants (now the applicants) issued this
application (969/2014) wherein they seek an order condoning the
non-compliance with the rules of Court and rescinding the order
obtained by default against them on the 11
th
November 2013.
[5]
The plaintiff criticises the defendants’ application and state
that the defendants have failed to set out fully the facts
why
condonation should be granted. Plaintiff’s view is that
defendants are in wilful default and that the defendants
failed to
sufficiently set out what their whereabouts were on date of the
service of the summons as same has been served on the
domicilium
address. Defendants do not deal
herewith. Plaintiff avers that the allegations in this regard
is particularly bold and
clearly not making a full disclosure.
Regarding a
bona fide
defence
plaintiff submits that the defendants in fact have ultimately two
defences to the plaintiff’s claim which are self-destructing
in
that on the one hand the second defendant (second applicant) denied
that any agreement was ever entered into in respect of the
obligations owed to the plaintiff, but on the other hand substantial
payments were made in terms of the said obligations to plaintiff,
which shows an intent to be bound by the agreement.
[6]
The two defendants are married in community of property. In
short Mpho Chabane avers that during 2008 they received a
letter from
the plaintiff in terms whereof it was alleged that the latter had
loaned and advanced an amount of about R100 000.00
to the
defendants. This came as a surprise to her and she enquired
from her husband (the first defendant) but he averred
to have no
knowledge of the said obligation. At the time Lesedi Radio
Station was running a program dealing with public complaints
and
after she approached the station she did not hear of the matter again
and considered the matter to be settled. However
in January
2014 she received the application for the attachment of their
immovable property. She never received any summons
and, on the
24
th
February 2014 they went to Court but were told that the matter was
already dealt with on the 20
th
February 2014. Three days later, they received a warrant for
the attachment of the immovable assets. They immediately
went
for advice and assistance and consulted on the 3
rd
of March 2014 whereafter this application for rescission was
drafted. I might mention that on reading the Court file I did
not find any order that the property had been declared specially
executable on the 20
th
of February 2014.
[7]
The essence of the defendants’ defence is stated by Mpho
Chabane as that she never applied for any loan and never signed
any
agreement nor received any monies from the plaintiff. In fact
she calls upon the plaintiff to provide proof thereof.
From a
reading of the said affidavit, Mrs Chabane would seem to suggest that
her husband has entered into these agreements with
the banker without
her knowing it. Her husband’s affidavit in this regard is
clearly vague merely stating that he has
read the affidavit of Mpho
Chabane and confirm the contents thereof in as far as same relates to
him.
[8]
Having read these affidavits by the defendants I expected the
plaintiff to file opposing papers confirming the whole of the
transaction and in particular the signatories of the defendants.
On face value I notice that the home loan agreement (Part
A thereof)
is signed by the borrower as well as his/her spouse as well as a
signature of the bank representative. Notwithstanding
same, no
affidavit was filed by the bank representative detailing the
negotiations and signing of the said documents. On
the
contrary, the plaintiff filed an opposing affidavit by Mr Van der
Walt, employed as a Senior Manager in the Specialized Legal,
Personal
and Business Banking Credit Division of Standard Bank who states that
as a result of his designation and position held
at the bank, he has
insight into the defendant’s account and that upon
investigation from the plaintiff’s records,
the plaintiff
established that a comprehensive application for finance for the home
loan facility has in fact been submitted, supported
by copies of
identity documents.
[9]
Upon receipt of the application for rescission, the plaintiff
instructed its fraud department to analyse and investigate the
defendants’ allegations. The matter was investigated by
home loans fraud analyst, Hlekane Chauke and a copy of the
said
correspondence confirming the findings is attached. The said
report states that no fraud was involved and also particularly
that
the signature on the founding affidavit for Mr Chabane matches the
one from their compliance pack but Mrs Chabane’s
signature does
not match.
[10]
On the papers before me (and I stress that only on the papers before
me) it would seem that Mrs Chabane’s defence is
confirmed.
In fact, the plaintiff confirms that the said document was not signed
by her. As mentioned, the bank official
who was ostensibly
present when the documents were filled out, did not file any
affidavit.
[11]
In the circumstances the judgment obtained cannot stand and stands to
be set aside. Mr Chabane (as a co-applicant) was
in a good
position to explain to Court how this loan was obtained at the bank.
He failed to do so and no replying affidavit
was filed. He will
benefit from the rescission of the said judgment. In the
circumstances I am of the view that the
joint estate (the defendants)
should pay the costs hereof.
[12]
In the circumstances I make the following order:
1.
Condonation is granted for the late filing of this application.
2. The default
judgment granted on the 11
th
November 2013 by the
Registrar is set aside.
3.
The defendants are to file their notice of defence within ten (10)
days of this order.
4.
The defendants to pay the costs.
__________________
S.
J. REINDERS, AJ
On
behalf of the Applicant: S. Visser
Instucted
by:
Symington
& De Kok
BLOEMFONTEIN
(SVisser/nvdm/MMC1322)
On
behalf of the Respondent: M. Khang
Instructed
by:
Mphalfi
Khang Inc
BLOEMFONTEIN