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[2014] ZAGPPHC 107
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Ghani v Firstrand Bank Limited (61623/2009) [2014] ZAGPPHC 107 (14 March 2014)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
Case
No: 61623/200S
DATE:
14 MARCH 2014
In the matter
between:
SHEHZAAD ABDUL
GHANI
.......................................
Applicant/
Second Defendant
And
FIRSTRAND BANK
LIMITED
................................................
Respondent/
Plaintiff
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1] This is an
unopposed rescission application.
[2] Judgment was
granted by default against the applicant on 15 December 2009 for the
payment of R 23 910, 87, interest and costs.
[3] The summons was
served at a domicilium address and did not come to the attention of
the applicant.
[4] In setting out
his bona fide defence, the applicant admits that the money was due
and owing to the respondent at the time. He
explains that due to
adverse economic circumstances he was not in a position to pay the
amount owning to the respondent.
[5] Subsequent to
the judgment being granted, the applicant repaid the full amount to
the respondent and he attaches a letter from
the respondent
confirming same.
[6] In his
affidavit, the applicant relies on an unreported judgment of Binns-
Ward J in the matter of Theodore Peter Damon and
Carla Yolande Damon
v Nedcor Bank Limited delivered in the Cape Division of the High
Court as the ground on which rescission should
be granted. The facts
in the Damon matter is on par with the facts herein.
LEGAL PRINCIPLES:
[7] Rule 31 (2)(b)
of the Uniform Rules of court is applicable to the facts and
circumstances contained in the applicant's application.
The rule
reads as follows:
"A defendant
may within twenty days after he or she has knowledge of such judgment
apply to court upon notice to the plaintiff
to set aside such
judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as to it seems
meet."
[8] The requirements
pertaining to "good cause shown" have been established in a
long line of decisions, which I, for
present purposes, do not intent
citing. An applicant in a rescission application in terms of the rule
is, inter alia, required
to set out a bona fide defence to the claim
of the plaintiff in the main action. The applicant, on his own
version, does not have
a bona fide defence to the plaintiffs claim.
[9] The applicant in
an attempt to cure this problem relies on the Damon judgment referred
to supra.
[10] In the Damos
matter, Bins-Ward J, with reference to the
National Credit Act, 34 of
2005
, held as follows at para [14]:
"
Part D
of
chapter 4 of the Act provides for a system of assisted debt
management or debt re-arrangement for persons who, like the
applicants
in this case did, encounter difficulty in meeting their
obligations in terms of credit agreements. (A mortgage contract is
expressly
included within the meaning of 'credit agreement' under the
Act.) A person subject to a debt re-arrangement becomes entitled to
the issue of a clearance certificate once her or she has
discharged the
outstanding financial obligations which are subject to the debt
re-arrangement. The issue of such a clearance certificate
entitles
the credit receiver to the expungement of the affected transactions
in respect of which he or she had been in default
of his or her
contractual obligations from the credit records maintained by
registered credit bureaux. In the event of a credit
bureaux failing
or refusing to expunge the record, the credit receiver is afforded
remedies under the Act to address such failure
or refusal without it
being necessary to approach a court."
[6] In view of the
fact that the provisions of the Act referred to supra, were not
available to the applicants in the Damon matter,
Binns-Ward J granted
an order rescinding the default judgment. He, however, made it clear
that applicants should in future utilise
the provisions of the
National Credit Act.
[7
] The
National
Credit Act commenced
on 1 June 2006 and the remedies contained
therein are available to the applicant.
[8] As stated supra,
the facts contained in the applicant's founding affidavit does not
satisfy the requirements of
rule 31(2)(b)
and the application cannot
succeed.
ORDER
I make the
following order:
The application
is dismissed.
JANSE VAN
NIEUWENHUIZEN J
JUDGE OF THE
GAUTENG HIGH COURT OF SOUTH-AFRICA