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[2015] ZAKZPHC 46
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Prettirajh v Absa Bank Limited (4234/14) [2015] ZAKZPHC 46 (15 September 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO: 4234/14
DATE: 15 SEPTEMBER 2015
In the matter between:
LINDLEY
PRETTIRAJH
................................................................................................
APPELLANT
And
ABSA BANK
LIMITED
................................................................................................
RESPONDENT
JUDGMENT
NTSHANGASE J
Introduction
[1] The applicant seeks an order
condoning the late application for rescission and for rescission of a
default judgment against
him in favour of the respondent granted on
29 May 2014. The order for rescission is sought under Rule 31(2)(b)
alternatively Rule
42(1)(a) of the Uniform Rules of Court.
[2] The judgment against the applicant
was in respect of a shortfall of money not recovered by the
respondent in the liquidation
of its debtor, “The Oak Factory
CC” (the principal debtor) with which the applicant, as surety,
assumed joint liability
for the principal debtor’s obligations
under agreements with the respondent the terms and conditions whereof
the principal
debtor breached.
The application for condonation
[3] Initially the applicant took issue
with the service of the summons at 15 Temple Close, Woodview from
which, he stated, he relocated
as far back as 2009. At the hearing
counsel for the applicant conceded that the summons was properly
served. Indeed, it was served
at the applicant’s appointed
domicilium. It was further conceded that the applicant did not notify
the change of address.
[4] The applicant gained knowledge of
the default judgment on 28 July 2014. He referred the matter to
attorneys who, he states,
did not accord priority to it.
[5] On 10 November 2014 the applicant
instructed Wadee Attorneys on the matter. He handed them the court
file provided to him by
Hammond Pole Attorneys to investigate the
circumstances which led to the default judgment. On 21 November 2014
he met with his
attorneys ‘who explained the nature and import
of the documents in the court file and the search works report which
reflected
the default judgment against (him) as the only judgment.’
Up to that stage no meaningful steps had been taken by the applicant
to bring the matter before court.
[6] In his endeavour to give a
reasonable explanation for his default the applicant does not suggest
that the judgment was granted
erroneously. It accordingly resorts
under Rule 31(2)(b) of the Uniform Rules of Court. The applicant
remains oblivious of the twenty
day time frame set by Rule 31(2)(b)
within which the application had to be brought before court, as
manifest from the following
in the replying affidavit:
‘I am advised and reiterate that
an application of this nature must be brought within a reasonable
time of having become aware
of the judgment … taking into
account all the factors mentioned in the founding affidavit.’
[7] I perceive no factors in the
founding affidavit which show that the application was brought within
a reasonable time. It was
only on 3 February 2015 that the
applicant’s attorneys gave notice of intention to launch the
application for rescission.
The application was subsequently lodged.
The applicant’s default was clearly due to gross negligence on
his part in the face
of knowledge that judgment had been taken
against him. There was, in this case, an unjustifiable delay in
bringing the application
before court. The applicant has failed to
show good cause for condonation to be granted.
Bona fide defence
[8] Where an applicant has provided a
poor explanation of his default, as is the case in the present
matter, a good defence may
compensate. All the applicant must show is
a prima facie case or the existence of an issue fit for trial. In
endeavour to do so
the applicant initially raised a defence based on
prescription later abandoned, that the surety agreement was invalid
as ‘…
the essential details and information of the
debtor were not completed therein when the applicant signed the
document. The applicant
does not indicate the essential details and
information of the debtor which were not completed on the surety
agreement document;
nor does he suggest as to when such details and
information may have been completed as they are now on the document.
A reading
of the document, annexure “AA2” to the
answering affidavit does not bare evidence of errors of omission. In
fact the
document manifests sufficient care for correctness.
Incorrect information on it was deleted and substituted with correct
information
in manuscript. The document was signed by the applicant
and witnesses where corrections had been effected. The applicant
ought
to have set forth this ground of defence with sufficient
detail. See Standard Bank of SA Ltd v El-Naddaf 1999(4) SA 779 (W) at
785 I - 786 B.
[9] On the further ground of defence
the applicant makes the following vague averment in the founding
affidavit:
‘In addition I dispute the
correctness of the information in account number [7……….]
and account number
[7…….] and (do) not believe it to be
a true reflection of the agreements as entered into at the time
between the
parties.’
On this ground the respondent would be
just as perplexed as would be the case on the ground relating to the
surety agreement, by
reason of lack of detail. He does not provide
detail of what he disputes on the accounts concerned; nor does he
provide detail
of what makes him ‘not (to) believe it to be a
true reflection of the agreements …’. It is in reply
that the
applicant takes issue with what he believes to be a
discrepancy between the amounts on the certificate of balance and the
shortfall
in the liquidation of the principal debtor. He endeavours
to provide detail which should have been set out fully in his
supporting
affidavit. Raised in reply as it was, the respondent could
not respond. In this regard the following passage in the case of
Mauerberger
v Mauerberger 1948(3) SA 731 (C) at 732 is apposite:
‘It is quite clear that in notice
of motion proceedings an applicant must in his or her supporting
affidavit set out fully
his or her cause of action. It is not for the
applicant to simply make general allegations, and when those
allegations are dealt
with in reply to come forward with replying
affidavit giving details supporting the general allegations
originally set out in the
affidavit supporting the notice of motion.”
The order
[10] In all the circumstances the
application falls to be dismissed and the following order is made:
The application is dismissed with
costs.
DATE OF ARGUMENT : 3 September 2015
DATE OF JUDGMENT : 15 September 2015
FOR THE APPLICANT : Ms K Pillay,
instructed by Wadee Attorneys,
locally represented by Mahadevey &
Maharaj Attorneys,
FOR THE RESPONDENT : A J Boulle
locally represented by Shepstone and Wylie Attorneys