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[2015] ZAECMHC 74
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Sijeku v Motor Finance Corporation A Division of Nedbank Limited (1227/2012) [2015] ZAECMHC 74 (15 October 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE NO. 1227/2012
Date heard:
15 October 2015
Date
delivered: 15 October 2015
In the
matter between:
NONTUTUZELO
FLORIDA SIJEKU
Applicant
And
THE MOTOR
FINANCE CORPORATION
A
DIVISION OF NEDBANK
LIMITED
Respondent
JUDGMENT
BROOKS
AJ:
[1]
On 22 September 2014 the applicant issued an application for the
recission of a default
judgment which had been granted on 22 August
2012 against the applicant and in favour of the respondent.
[2]
The application was served on the respondent’s attorneys of
record on 29 September
2014.
[3]
On 9 October 2014 the respondent’s attorneys of record filed a
notice to oppose
the application with the registrar.
[4]
On 27 November 2014 the respondent’s answering affidavit was
filed with the
registrar.
[5]
If she wished to file a replying affidavit, in accordance with the
provisions of Rule
6(5)(e) of the Uniform Rules of Court the
applicant would have been obliged to do so within ten days of the
service upon her of
the answering affidavit.
[6]
No replying affidavit has been filed.
[7]
In accordance with the provisions of Rule (5)(f) of the Uniform Rules
of Court, within
five days of the expiry of the time period within
which she was permitted to file an answering affidavit, the applicant
was at
liberty to apply to the registrar of this court to allocate a
date for the hearing of her application. This she failed to
do.
[8]
Accordingly, acting within the scope of the provisions of Rule
6(5)(f) of the Uniform
Rules of Court, the respondent made
application to the registrar on 13 February 2015 for the allocation
of a date for the hearing
of this application on the opposed motion
court roll. A copy of that notice of application to the
registrar was served on
the applicant’s attorneys of record.
[9]
On 30 June 2015 the registrar issued a certificate to the effect that
the matter is
ripe for hearing and enrolled the matter for 15 October
2015.
[10]
The respondent thereafter served a notice of set down in respect of
the matter on the applicant’s
attorneys of record on 23 July
2015.
[11]
On 7 October 2015 the respondent’s attorneys of record complied
with Rule 15A of the Joint
Rules of Practice applicable to the
various courts in this division by delivering a notice to the
registrar to indicate that the
matter would be argued to completion
on 15 October 2015.
[12]
On 7 October 2015 the respondent’s attorneys of record filed
heads of argument prepared
by Ms WATT, counsel for the respondent.
[13]
According to the applicant’s founding affidavit, the applicant
only became aware of the
default judgment against her on 24 March
2014. On this date, a notice of acting was filed by the
applicant’s attorneys
of record. In accordance with the
provisions of Rule 31(2)(b) of the Uniform Rules of Court, the
present application should
have been launched within twenty days,
i.e. by 24 April 2014. This was not done. The applicant’s
only explanation
for the fact that the application was launched five
months after she became aware of the default judgment was that she
needed to
raise funds to pay her attorney of record. No details
are given about the conduct of this process.
[14]
It has been held that if in seeking condonation for the application
being out of time the explanation
offered is weak, this will affect
the
bona fides
of
the application for recission.
[1]
This principle would appear to be apposite to the present
application.
[15]
The requirements for the recission of a judgment granted by default
are;
(i)
the applicant must give a reasonable explanation for his or her
default;
(ii) the
application must be
bona fide
and not made with the intention
of delaying the plaintiff’s claim; and
(iii)
the applicant must show that he or she has a
bona
fide
defence to the
plaintiff’s claim, it being sufficient if a
prima
facie
defence is
set out.
[2]
[16]
The applicant’s reasons for default must be fully and
sufficiently set out so that the
court can assess the applicant’s
conduct and motives and the applicant must prove, not only allege, a
good cause for a recission.
Good cause includes but is not
limited to a substantial defence.
[3]
[17]
The grounds of the applicant’s defence must be set forth with
sufficient detail to enable
the court to conclude that there is in
fact a
bona fide
defence and the
application is not merely for the purpose of harassing the
respondent.
[4]
[18]
In her founding affidavit, the applicant fails to explain why it took
five months to collect
the funds required to approach her attorney
and what was specifically done during those five months. There
is also no explanation
for the fact that the notice of acting was
filed by the applicant’s attorneys of record on 24 March 2014,
the same day as
the applicant alleges that she became aware of the
existence of the default judgment. The contradiction between
the activity
of the attorneys and the need for the applicant to place
them in funds, leading to a delay of five months, is readily
apparent.
It suggests, as does the unexplained coincidence of
the notice of acting emerging on the very day that the applicant
became aware
of the default judgment, that the applicant has been
less than candid with the court in explaining the circumstances of
her default
and the delay in bringing her application.
[19]
The applicant has also failed to set out clearly and fully the nature
of the defence which she
claims to rely upon to meet the respondent’s
claim. The action has to do with the cancellation of a vehicle
finance
agreement and the concomitant return of a motor vehicle.
The applicant admits that she was in default of her obligation to
make regular payment of the amount due under the finance agreement.
She claims that she had the wrong account number and
that she had
spoken with “a Toyota finance lady” about the problem.
She stopped paying because she expected to
sign a new contract and
she wanted the respondent to attend to the problem.
[20]
In my view, the applicant’s allegations relating to a defence
are vague and insufficient
to enable the court to accept that she is
bona fide
in
bringing the application.
[21]
The entire application is characterised by substantial delays on the
part of the applicant.
These combine with the applicant’s
failure to file a replying affidavit and her failure to apply to the
registrar for the
allocation of a date for the hearing of the
application, to create the impression that the applicant is not
bona
fide
in bringing the application and wishes simply to delay the
finalisation of the respondent’s claim. In these
circumstances
the respondent has been prejudiced by the unreasonable
delays which have occurred and has been put to additional legal
expenses
which should have been avoided. The applicant’s
conduct of the application is deserving of the censure of the court.
[22]
In the circumstances, the following order will issue:
“
1.
The application is dismissed.
2.
The applicant is directed to pay the costs of the application on the
scale as between attorney
and client.”
______________________
RWN BROOKS
JUDGE OF THE HIGH COURT (ACTING)
APPEARANCES:
For the Applicant:
No appearance.
For the Respondent: Adv KL Watt
instructed by Smith Tabata Inc. Mthatha.
[1]
CAROLUS AND ANOTHER v SAAMBOU BANK LTD
AND SMITH SAAMBOU BANK
2002 (6) SA 346 (SE) 349 B-E.
[2]
GRANT v PLUMBERS (PTY) LTD 1949 (2) SA 470(O)
476-477.
[3]
SILBER v OZEN WHOLESALERS (PTY) LTD 1954(2) SA
345 (A).
[4]
STANDARD BANK OF SA LTD v EL –NADDAF
1999
(4) SA 779
(W)
785I – 786 B.