About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 296
|
|
Aroonslam v Firstrand Bank Limited t/a FNB Private Clients (10327/2012) [2014] ZAGPPHC 296 (23 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
2012/10327
DATE: 23 MAY 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
MORGESHVARIN
AROONSLAM
….........................................................................................................................................................................
APPLICANT
MORGESHVARIN
AROONSLAM N.O
…..................................................................................................................................................
SECOND
DEFENDANT
and
FIRSTRAND BANK
LIMITED
t/a FNB PRIVATE
CLIENTS
…................................................................................................................................................................................
RESPONDENT
JUDGMENT
COLLIS AJ:
Introduction
[1] The Applicant is
applying for the rescission of a summary judgment granted against him
on 12 June 2012. The present application
for rescission of judgment
was opposed before the Court.
[2] The application
is premised on the provisions of Rule 31 (2)(b) of the Uniform Rules
of Court. The specific rule reads as follows:
“
A
defendant may within 20 days after he has knowledge of the 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 ”
[3] For an applicant
to meet the requirements for relief of a rescission of judgment under
Rule 31(2)(b), he (the applicant) must
show the following:
(a) He must give an
explanation of his default. If it appears that his default was wilful
or that it was due to gross negligence
the Court should not come to
his assistance.
(b)
His application must be
bona
fide
and
not made merely with the intention to delay the Plaintiff’s
claim.
(c)
He must show that he has a
bona
fide
defence
to the Plaintiff’s claim, ft is sufficient if he makes out a
prima
facie
defence
in the sense of setting out averments which, if established at trial,
would entitle him to the relief he seeks.
1
He need not deal fully with the merits of the case and produce
evidence that the probabilities are actually in his favour.
[4]
In Silber v Ozen Wholesalers (Pty) Ltd
2
the Appellate Division held that
“
good
cause"
includes,
but is not limited to, the existence of a substantial defence. The
Court went on to state 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 assess his conduct and motives. ”
[5] Before a person
can therefore be said to be in wilful default, the following elements
must be shown, namely that:
(a) he had knowledge
that the action was being brought against him or her;
(b) there was a
deliberate refraining from entering an appearance, though free to do
so; and
(c) there was a
certain mental attitude towards the consequences of default.
The Issue
[6] The respondent’s
claim against the applicant is based on an agreement concluded
between the parties during 2009. In terms
of the agreement the
respondent advanced a loan amount (R2 700 000, 00) to the applicant
called a FNB Structured Facility. In terms
of this agreement, the
applicant was obliged to repay the loan amount over a period of 240
months in minimum monthly amounts of
R27 376,96. As the applicant had
failed to comply with his obligations in terms of payment of the
minimum amount due in terms of
the facility, the respondent
instituted action against the applicant.
Absence of Wilful
Default
[7]
In his founding affidavit
3
,
the applicant sets out, albeit that he had filed through the auspices
of his attorneys a notice of intention to defend the action
brought
against him by the plaintiff, he failed to respond to the application
for summary judgment due to lack of funds to instruct
his attorneys
to oppose the summary judgment application.
[8] The lack of
financial means on the applicant’s part, is the only
explanation proffered by him as a reason as to why he
was unable to
oppose the summary judgment application. The applicant in his
affidavit does not state that he was unaware of the
date that the
application for summary judgment was set down for hearing, nor does
he state that he was unable to attend court on
the day of the hearing
or even that on the day of the hearing he made an appearance at court
and requested an indulgence from the
Court to seek legal assistance
through the Legal Aid Board.
[9] What is apparent
from the explanation given by the applicant is that he had knowledge
that the summary judgment was set down
for hearing, but had failed to
attend court proceedings on the said day. He was also aware that in
the absence of any opposition
filed against the granting of a summary
judgment, judgment could be obtained against him.
[10]
For the reasons as set out
supra
I
cannot find that his explanation for his default was lacking of
wilfulness on his part. The applicant as a result had failed to
meet
the first requirement of absence of wilful default.
Bona Fide Defence on
the Merits
[11]
In his founding affidavit
4
the applicant sets out that he never entered into a structured
facility agreement in terms of which he was obliged to repay the
loan
in monthly instalments over a period of 240 months. He further sets
out that during 2006 he had applied for an ordinary overdraft
facility, which account was conducted as such until 2012 when the
respondent awarded him a facility of R1200 000,00 to enable him
to
buy a house for cash unencumbered, by monthly payments.
[12] He went on to
state that this facility was not structured and that he was under no
obligation to repay the said amount in instalments
or at any time.
[13]
The respondent has denied that the applicant was not obliged to repay
the loan facility extended to him in monthly instalments.
In this
regard, the respondent contends that depending on the amount of the
facility utilised by the applicant, the monthly amount
to be repaid
in part would service the interest on the account.
5
The respondent further stated that it would be absurd to assume that
it would have advanced funds to the applicant, without there
having
been an obligation to repay the said funds.
[14] In this regard,
counsel appearing on behalf of the applicant had argued that the only
money payable by the applicant in terms
of the agreement was interest
that accrued on the outstanding amount, but that the interest charged
had not become due and payable
as the account of the applicant was
still active.
[15]
Although the applicant disputes having concluded the facility
agreement with the respondent, he does not dispute the existence
of
annexure “RMB1”
6
which indicates that such an agreement was concluded with him.
Insofar as the applicant contends that the facility agreement was
preceded by various other agreements, it is not indicated how such
prior agreements would impact on its validity. Further, the
applicant
has not denied that the amount advanced to him by the respondent was
a loan. I am unable to agree with the applicant
that such loan was
not to be repaid to the respondent. If regard is had to the facility
agreement, annexure “RMB1”,
the repayment terms of the
facility are clearly set out. If on the applicant’s contention
this loan was not to be repaid
or the interest had not become due,
such term would have been expressed in the agreement. In the
circumstances I cannot find that
the applicant has established a
bona
fide
defence
against the plaintiff’s claim.
Rescission
application to be made within twenty days
[16] I then turn to
the requirement that an application in terms of Uniform Rule 31(2)(b)
should be brought within twenty days of
the applicant obtaining
knowledge of the judgment.
[17]
It is significant to note that the founding affidavit is silent as to
when the applicant first obtained knowledge of the judgment
taken
against him. At best with reference to his founding affidavit, he
states that the summary judgment application was served
on his
attorney on 17 May 2012, which application depicts a date of hearing
of the summary judgment application for 12 June 2012
.
[18] In the absence
of express evidence that the applicant obtained knowledge of the
judgment on a different date than the date
of the entering of
judgement in a summary manner against him, the applicant ought to
have been brought his application within twenty
days calculated from
12 June 2012.
[19] Counsel
appearing on behalf of the applicant had argued strongly that the
Court should condone the fact that the application
was brought
outside the time period permitted for in Uniform Rule 31(2)(b). This
request in the absence of condonation having been
addressed in the
founding affidavit cannot be acceded to by this Court.
[20] As a
consequence I cannot find that the application was brought within the
time period permitted for by the rule.
Order
[21] In the result
the following order is made:
The application is
dismissed with costs.
C. J. COLLIS
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
APPEARANCES
FOR APPLICANT: ADV D
CLOETE
INSTRUCTED BY:
OLIVIER & MALAN ATTORNEYS
FOR RESPONDENT: ADV
R DEMINEY
INSTRUCTED BY:
DELPORT VAN DEN BERG INCORPORATED
DATE OF HEARING: 24
APRIL 2014
DATE OF JUDGMENT: 23
MAY 2014
1
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(0)
2
1954
(2) SA 345
(A) at 352H
3
Founding
affidavit para 3 & 4
4
Founding
affidavit para 8 to 11
5
Opposing
affidavit para 19.3
6
See
Index Volume 1 pg 38