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[2014] ZAGPPHC 164
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Antoniou v Firstrand Bank Limited t/a FNB Private Clients, In Re; Firstrand Bank Limited t/a FNB Private Clients v Antoniou (40506/2011) [2014] ZAGPPHC 164 (4 April 2014)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT DIVSION, PRETORIA
CASE
NO: 40506/2011
DATE:
4 APRIL 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
CHRISTAKIS
ANTONIOU
.
............................................................................
Applicant
And
FIRSTRAND
BANK LIMITED t/a FNB
PRIVATE
CLIENTS
....................................................................................
Respondent
In
re the Application between:
FIRSTRAND
BANK LIMITED t/a FNB
PRIVATE
CLIENTS
.......................................................................................
Plaintiff
And
CHRISTAKIS
ANTONIOU
......................................................................
Defendant
JUDGMENT
MNGQIBISA-THUSI,
J:
[1]
This is an application in terms of which
the applicant is seeking the following order:
1.1
that the default judgment granted
against the applicant on 10 October 2011 be rescinded;
1.2
that the applicant be granted 10 days
within which to enter an appearance to defend the action.
1.3
Costs.
[2]
Under the common law, in order for the
court to grant an order rescinding a previous order or judgment the
applicant has to show
sufficient cause. In other words the applicant
must give a reasonable explanation for his default, must show that he
has a bona
fide defence and must also show that he has a bona fide
defence which prima facie has some prospect of success. Chetty v Law
Society,
Transvaal
1985 (2) SA 756
(A) at 765.
[3]
Rule 31(2)(b) provides that a defendant
may within 20 days after he has knowledge of a judgment against him
by default 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. In
terms of Rule 31(2) (b) an applicant for rescission of a judgment
must show good
cause. This means that the applicant has to give a
reasonable explanation for the default, must show that his
application is bona
fide, and be able to show that he has a bona fide
defence to the respondent's claim which
prima
fade
has some prospect of success.
Grant v Plumbers (Pty) Ltd
1949 (2) SA 470
(0).
[4]
It is common cause that:
4.1
the applicant and the respondent entered
into a credit facility agreement on 31 January 2008;
4.2
the loan was secured by a mortgage bond
over the property situate at Erf 198 Pine Haven Township ("the
property").
4.3
the applicant chosen as its domicilium
address 194 Pine Haven Country Estate, Krugersdorp.
4.4
The credit facility provided as follows:
"15.3.1
Any of the following acts will place you in default of this facility
if you do not rectify them (if possible) within
20 days of receiving
written notice from the bank to do so:-
15.3.1.1
Failing
to pay any amount owing to the bank when it is due."
and
"15.3.4.1
The bank will draw such default to your notice in writing by pre-paid
registered mail affording you 20 (twenty) days
to rectify such
default, alternatively, proposing that you refer this facility to a
debt counsellor, alternatively a dispute resolution
agent, Consumer
Court or Ombud with jurisdiction."
[5]
As a result of the applicant defaulting
in its payments, the respondent delivered a letter of demand and a
section 129(1) (a) notice
on 19 May 2011 to the applicant's
domicilium address. In the letter of demand the applicant was given
10 days to remedy his default
and advised of seeking debt review.
[6]
On 22 July 2011 summons was served also
at the applicant's domicilium address.
[7]
On 10 October 2011 default judgment
against the applicant was granted for the payment of the sum of R1
778 749.00 plus interest
at the rate of 7.8% per annum from 21 June
2011. Furthermore, an order declaring the property specially
executable was granted.
[8]
A writ of attachment was served on 25
January 2012.
[9]
On 15 February 2012 the parties reached
a settlement agreement in terms of which the applicant undertook to
settle his debt by paying
the sum of R15 000.00 per month.
[10]
The respondent sent a letter to the
applicant's attorneys on 25 April 2013 indicating that the applicant
owed an amount of R378
345.00 which was due and payable.
[11]
The property was sold on 12 June 2013 to
a certain Johannes Pelser ("Pelser"). The non-joinder of
Pelser was not made
an issue.
[12]
Even though the property has been sold
to a third party, the third party was not joined in these
proceedings.
[13]
In explaining his default the applicant
alleges that at the time the letter of demand and the section 129
notice was delivered;
and at the time the summons were served, he was
not residing at the domicilium address but at a different address. As
a result,
the letter and the notice and the summons did not come to
his knowledge.
[14]
Furthermore, the applicant alleges that
he only got knowledge of the default judgment during November 2011.
He soon thereafter made
a proposal in which he undertook to make
payments of R15 000.00 per month, which proposal was accepted by the
respondent.
[15]
The applicant contends that it has been
making payments but that the respondent unilaterally increased the
monthly payments to R
17 000.00 per month. During April 2013 his
attorney received a letter from the respondent reflecting that he
owed an amount of
R378 345.00.
[16]
It was submitted on behalf of the
applicant that in terms of the credit facility, in the event of the
applicant defaulting on his
payments, the respondent was obliged to
send him a letter giving him notice of his default within 20 days
i.e. in terms of clause
15.3.1), failing which the respondent was
expected to send the applicant a letter of demand calling on him to
remedy his default
within 20 days failing which legal action would be
instituted (i.e. in terms of clause 15.3.4.1). It is the applicant's
contention
that it has a bona fide defence in that the respondent
failed to comply with the procedural aspects for the enforcement of
the
debt in terms of the credit facility. It is contended that
default judgment would not have been granted if the court was made
aware
of the fact that the respondent had not complied with the lex
commissoria contained in the credit facility (clause 15.3.4.1).
[17]
The respondent is opposing the
rescission of the default judgment on the following grounds. Firstly
that the time it has taken the
applicant to institute these
proceedings is unreasonable in view of its knowledge of the judgment
in November 2011. It is the respondent's
contention that the
applicant has not sufficiently explained its default. Secondly, that
by proposing a settlement and signing
the settlement agreement, the
applicant had waived its right to have the judgment rescinded.
Furthermore, that the applicant's
proposal was accepted by the
respondent on condition that the applicant signed a special power of
attorney authorising the respondent
to execute against the property
should the applicant default. The applicant never signed the special
power of attorney which was
sent to his attorney on 6 February 2012.
Thirdly that the applicant has not shown that it has a bona fide
defence to the respondent's
claim as the respondent has complied with
the terms of the credit facility in enforcing the debt.
[18]
It was submitted by counsel for the
applicant that it was seeking relief in terms of Rule 42(1) (a) of
the Uniform Rules of Court.
Rule 42(l)(a) provides that a court may,
in addition to any other powers it may have, mero motu or upon
application of any party
affected, rescind or vary an order or
judgment erroneously sought or erroneously granted in the absence of
any party affected thereby.
This means that the applicant has to show
that the court in granting the default judgment had committed an
error "in the sense
of a mistake in a matter of law appearing on
the proceedings of a Court of record. Bakoven Ltd
\/
GJ Howes (Pty) Ltd
1992 (2) SA
466
(ECD). If the applicant can prove the error committed by the
court, it is not necessary for him to explain his default. I am
satisfied
this application does not fall within the provisions of
Rule 42(1) (a).
[19]
The risk of non-receipt of legal notices
where a consumer has chosen a domicitium address lies with the
consumer. Rossouw v Firstrand
Bank Limited
2010 (6) SA 439
(SCA);
Munien v BMW Financial Services (SA) (Pty) Ltd and Another
2010 (1)
SA 549
(KZD). However, as appears from the applicant's explanation
for failing to defend that action, I am satisfied that the applicant
was not in wilful default.
[20]
In Gentiruco AG v Firestone (Pty) Ltd
1972 (1) SA 589
A the court held that:
"The
right of an unsuccessful litigant to appeal against an adverse
judgment or order is said to be perempted if he, by unequivocal
conduct inconsistent with an intention to appeal shows that he
acquiesces in the judgment or order."
[21]
The court in Dabner v South African
Railways and Harbours
1920 AD 583
emphasised that before such
acquiescence can be inferred the court must be satisfied that that
the litigant against whom an adverse
judgment or order was made has
acquiesced unequivocally in the judgment.
[22]
I am of the view that the applicant by
making a proposal to the respondent and reaching a settlement with
it, the applicant had
acquiesced to the judgment. There is no
evidence that at the stage that the settlement agreement was
concluded that the applicant
raised any objection to the default
judgment.
[23]
I am of the view that the applicant has
not shown that he has a bona fide defence against the respondent's
claim which prima facie
has some prospect of success. The applicant's
contention that the respondent has not complied with the procedural
terms of the
credit facility has no substance. Clause 15.3.1 of the
credit facility merely defines instances where the applicant would be
regarded
to be in default. Whereas clause 15.3.4.1 provides for
notice of 20 days to be given to the applicant to remedy its default.
The
only criticism which could be levelled against the respondent is
that in its letter dated 19 May 2011 it gave the applicant 10 days
to
remedy his default. However, as submitted by counsel for the
respondent, summons was only issued 30 days after the letter was
delivered. I am therefore satisfied that the applicant has not shown
that he has a bona fide defence to the respondent's claim.
[24]
Accordingly the following order is made:
'The
application is dismissed with costs'
MNGQIBISA-THUSI
J
Judge
of the High Court
Appearances:
For
Applicant: Adv Van der Merwe
Instructed
by: Jan Rossouw Attorneys
For
Respondent: Adv Deminey
Instructed
by: Delport Van Dr Berg Inc