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[2014] ZAGPPHC 354
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Van Der Merwe v Toyota Financial Services (Pty) Limited (A695/2012) [2014] ZAGPPHC 354 (25 April 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION , PRETORIA
CASE
NO:
A695/2012
DATE:
25 April 2014
Not
Reportable
In the matter
between:
PAUL JOHANNES VAN
DER
MERWE
......................................................................................
Appellant
and
TOYOTA FINANCIAL
SERVICES (PTY)
LIMITED
...........................................................
Respondent
JUDGMENT
Ismail J:
Background:
[1] This is an
appeal against the judgment granted by Mngqibisa- Thusi J which was
granted in this court against the refusal of
an application for
recission of judgment. The matter came before this court with the
leave of the presiding judge.
[2] The appellant
was a purchaser of a motor vehicle which the respondent financed in
terms of an credit sale agreement. The agreement
between the parties
is contained in the papers before us at pages 34-38 of the record of
proceedings.
[3] At the
outset of the appeal the appellant sought condonation for the late
filing of volume 3 of the record which was not
served timeously.
Counsel for the appellant, Mr Strydom SC, submitted that there was no
prejudice to the respondent and that the
court should permit the late
filing of that portion of the record. There was no objection from the
respondent’s counsel,
Miss Lottering. Condonation for the late
service and filing of volume 3 of the record was granted.
[4] The respondent
instituted proceedings against the appellant by way Summons under
case number 25755/2010
[5] In the
particulars of claim the respondent averred that the section 129
notice was served on the defendant, (the appellant)
at farm C[...],
R[...] 0[...] and not at the appellant’s postal address namely
P O Box 1[...] N[...] 0[...]. This summons
was dated 29 April 2010.
[6] The respondent
prayed for judgment against the appellant in the following terms:
A. Confirmation of
Cancellation of the agreement;
B. Repossession of
the goods;
C. Damages postponed
sine die;
D.....
E.
F. Further and/or
alternative relief.
[7] In the plea the
appellant stated at paragraph 6.1 the following:
“
Dit
word ontken dat Eiser voldoen het aan die bepalings van Art. 129 (1)
gelees met
Art. 130 van die
Nasionale Kredietwet, 34 van 2005 en/of die tersaaklike ooreenkoms”
At paragraph 6.2 of
the plea the following was stated:
“
Verweerder
dra nie kennis van die beweerde versending per geregistreerde pos
nie, ontken dit gevolglik en plaas Eiser tot bewys
daarvan.”
At para 6.6 of the
plea the defendant pleaded as follows:
“
6.6
Verweerder voer aan:
6.6.1 dat Eiser se
optrede deur die ooreenkoms te kanselleer en/of terrugawe van die
voertuig te eis, ’n repudiasie van die
ooreenkoms daarstel;
6.6.2 dat voormelde
repudiasie deur verweerder aanvaar word en tree Verweerder gevolglik
terrug uit die tersaklike ooreenkoms;
6.6.3 dat Verweerder
terrugbetaling eis van alle reedsbetaalde gelde;
6.6.4 dat Verweerder
terruglewering tender van die tersaaklike voertuig teen
terrugbetaling van alle reedsbetalde gelde ten einde
restitusie te
bewerkstellig.
[9] The action
instituted by the plaintiff (respondent in this matter) was
[10] Pursuant
thereto the respondent had a new section 129 notice served on the
appellant which was personally served on the latter.
After the lapse of
the requisite period of the notice in terms of section 129 of the
National Credit Act another summons was served
on the applicant under
case number 59378/11.
[11] The summons was
served personally upon the appellant on the 15 November 2011.
[12] Having received
the summons he attended the offices of his attorney Joop Lewies in
Mokopane. The summons was left with a secretary
of the attorney Miss
Cunningham Scott who assured him that she would instruct their
correspondents in Pretoria to enter an appearance
to defend.
[13] No appearance
to defend was entered. The respondent on the 9 December 2011 obtained
judgment by default. The appellant only
became aware of the judgment
on the 27 January 2012 when the sheriff came with a warrant to attach
the motor vehicle.
[14]
The appellant brought the application within the 20 day period
prescribed from the date he became aware of the default judgment.
See
Du Plessis v Tager
1953
(2) SA 270
(O) at 277C - 278B.
[15]
An application for recission of judgment was sought before her
Ladyship Mngqibisa-Thusi J which was dismissed with costs on
the 16
July 2012
.
The Law:
[16] In terms of
Rule 31(2) (b) of the Uniform rules of court -
“
(b)
A defendant may within 20 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,
”
The
party seeking recission should demonstrate and show that it has good
cause for his default and that he/she has a
bona
fide
defence.
See
;
Grant v Plumbers
(Pty) Ltd
1949(2)
SA 470 (O) at 476/477 and
Silber
\/
Ozen Wholesalers
(Pty) Ltd
1954
(2) SA 345
(A) at 353 A
Where
Schreiner J.A
stated:
“
It
is enough for the present purposes to say that the defendant must at
least furnish an explanation of his default sufficiently
full to
enable the Court to understand how it really came about, and to
assess his conduct and motives”
[17] Where a party
has been in wilful default to enter an appearance to defend an action
and judgment is given a court is unlikely
to grant recission or set
aside the judgment
[18]
In this matter the appellant defended the first summons which
was
served
on him. When the second summons was served on him on the 15 November
2011 and he approached his attorney’s on the 16
November with
the instruction to defend the matter. Due to an administrative bungle
up at the attorney’s offices the summons
was not defended.
It
was submitted on behalf of the respondent who relied upon the matter
of
Saloojee and
Another, NNO V Minister of Community Development
1965(2)
SA 135 (A) Where the court found that there was a limit beyond which
a litigant could not escape the results of his attorney’s
lack
of diligence or the insufficiency of the explanation tendered. It was
submitted that this decision dealt with condonation
for the
non-adherence of the Rules of the Appellate division (as it was
then).
Whilst I agree with
the principle set out in the matter referred to the facts of this
case clearly indicate that the appellant had
been of the firm mind to
defend the matter. The first summons was defended timeously and the
plea and counter claim was delivered,
causing the respondent to
withdraw the action.
The second summons
was issued as a concomitant of the appellant raising the section 129
notice in its plea. The appellant received
it and he diligently went
to his attorneys the next day to defend the action. The appellant’s
action if anything clearly
demonstrates that he was firmly resolved
in defending the action instituted against him. In my view it could
never be argued that
the appellant acted wilfully. His behaviour and
conduct clearly reflected the contrary.
In
Regal v African
Superslate (Pty) Ltd 1
962
(3) SA 18
AD it was stated that the attorneys’ neglect should
not, under the circumstances, bar the applicant who was himself not
to
blame, from relief, is approved.
[19]
I do not propose in the course of this judgment to deal with the
issue of wilful default as in our view the appellant did not
act
wilfully, however, the issue of wilful default is dealt with in
Erasmus: Superior
Court Practice (Main Volume) Van Loggerenberg Farlam
B1-202.
[20]
Mr Strydom addressed us at length on the question of a
bona
fide
defence.
The gravamen of his argument was premised on the issue of repudiation
which the appellant pleaded in its original plea
[see para 7
supra].
He
submitted that the respondent sought the return of the vehicle
without complying with the conditions of the agreement. His argument
was premised on clause 11 of the agreement which set out the
procedure which ought to have been followed when a party is in beach
of the agreement. Clause 11.3 of the agreement states:
“
11.
3 Should we elect to cancel the agreement in ters of section 123 of
the Act, the same procedure set out in paragraph 11.2 above
will be
followed prior thereto. ”
Section 11.2 of the
agreement stipulated that legal proceedings would not be instituted
unless certain defined aspects of the National
Credit Act have been
complied with which are stipulated in the agreement
Mr Strydom submitted
that clause 11.3 of the agreement was specifically inserted into the
agreement if the respondent intended to
cancel the agreement.
[21] Finally Mr
Strydom submitted that the agreement was cancelled by virtue of the
first summons and that the respondent by sending
a proper section 129
letter and issuing a new summons could not revive the agreement it
already cancelled.
[22]
He referred to the matter of
Volkskas
Bank v Noel Pieter Lotter
a
judgment of Mynhardt J in this division under case number 17526/90
(delivered on the 19 Feb 1992).
In
this matter the Court found that the letter sent to the defendant at
an address other than the defendant’s chosen
domicilium
amounted
to a cancellation of the agreement without complying with the
statutory requirements rendered the plaintiff’s conduct
a
repudiation.
In the judgment the
learned judge at page 12 stated:
“
In
die teeneis word die standpunt dan ingeneem ,om saam te vat, dat die
verweerder die twee ooreenkomste gekanselleer het weens
die eiser se
repudiasie; da thy geregtig was om die ooreenkomste te kanselleer, en
restitusie van die twee voertuie word getender
teen betaling van
bedrae wat reeds betaal is deur die verweereder ten aansien van elk
van die twee voertuie. Oor die bedrae wat
betaal is, is daar nie
enige dispuut nie.”
The
principle that an unwarranted cancellation and claim for repossession
will objectively be a repudiation has been confirmed in
Waikerv
Minier et Cie (Pty) Ltd
1979
(2) SA 474
(W).
[23] Clause 20.1 of
the agreement reads as follows:
“
20.1
You agree that the postal address / e mail address that you have
provided on the Quotation is the address where we must send
ail post
and other communications to you and that such communications shall be
binding on you. ”
The original s 129
Notice was not sent to the postal address but rather to the farm
Ceres Roedtan which the appellant claimed he
did not receive. The
notice was clearly not sent to the address agreed upon by the
appellant.
[24] Miss Lottering
submitted that the election on the part of the respondent to cancel
the agreement which equated to a repudiation
was a legal point raised
and for that reason recission should not be granted and the appeal
should therefore be dismissed with
costs.
[25] Whilst it could
be argued that it is a legal point, the application is not only based
on that point but is premised by other
facts which assist the
appellant. The legal point raised by the appellant is not one which
we should determine and make a finding
on. We should consider whether
the defence raised is a bona fide one or to put it differently
whether the defence raised creates
a triable issue for the
determination of a trial court.
[26] We are
accordingly of the belief that the applicant had made out a case for
recission and that the court a quo’s finding
that
11
the applicant had not shown that he has a bona fide defence”
was wrong and therefore calls for interference.
[26] Accordingly we
make the following order:
The appeal succeeds
with costs.
M
H E Ismail
Judge
of the High Court
I agree
L Vorster
Acting judge of the
High Court
I agree
J Mojuto
Acting Judge of the
High Court
APPEARANCES:
For Appellant: Adv T
Strydom SC instructed by Joop Lewies Ing
c/o Lewies Marais
lnc
y
Hazeldean, Pretoria
For the Respondent:
Adv U Lottering instructed by Hack Stupel & Ross Pretoria
Date of hearing: 16 April
2014
Date of Judgment: 25
April 2014