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[2014] ZAGPPHC 309
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Langa and Another v Absa Bank Limited (64413/12) [2014] ZAGPPHC 309 (28 May 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
Case number:
64413/12
Date: 28 May 2014
In the matter
between:
DAVID
NKUBE
LANGA
.....................................................................................................
1st
Applicant
MPHO
LIZZAH
LANGA
...................................................................................................
2nd
Applicant
And
ABSA
BANK
LIMITED
.......................................................................................................
Respondent
JUDGMENT
PRETORIUS
J
.
[1] The applicants
apply for a rescission of a default judgment granted on 28 February
2013 by the registrar of the High Court.
Background:
[2] A mortgage bond
was granted on 25 October 2006 in favour of the applicant for
R280 000.00 and R56 000.00. The applicants
bonded their
immovable property as security. They were obliged to pay an amount
of R2803.06 monthly to the respondent
to settle the loan.
[3] The applicants
paid these instalments for up to six years, but during 2012 they
fell behind. The first applicant was retrenched
and had difficulty
in paying the monthly instalment.
[4] Summons was
issued by the respondent and it was served personally on the
first applicant on 13 November 2012. The amount
of arrears, at the
time, was R16 809.21.
[5] Default judgment
was granted on 28 February 2013 as the applicants did not enter
an appearance to defend. The applicants,
throughout, kept on
paying an amount of R2200.00 per month to the respondent. The
property was sold in execution for
an amount of R51000.00.
[6] This application
was launched when the applicants sought legal advice.
[7] The applicants
aver that the reason for not defending the action against them,
were that they had immediately contacted
the respondent after having
received the summons. According to the first applicant he had come to
an agreement with the respondent
that he would pay R2200.00 per
month and would be able to cover the full outstanding loan when
he had sold a second property
belonging to him.
[8] According to the
applicants this agreement was not in writing, but the respondent
informed the first applicant that this
conversation had
been recorded. The applicants kept on paying instalments in the
amount of R2200.00 per month, which
they were still doing when
the application for default judgment was launched. The
respondent received the monthly payments
whilst continuing to
apply for default judgment.
[9] The applicant
thought the matter had been resolved and therefor kept on paying
the R2200.00 per month.
Rule 31 (2) (b):
[10]
In terms of Rule 31 (2)(b) default judgments may be set aside if an
application for rescission of judgment is made within
20 days
after the defendant had obtained knowledge of the judgment. The
defendant has to show good cause for the rescission.
The
applicants have to show that they were not wilfull, that they
have a reasonable explanation for the default, that
the
application is
bona
fide
and
not made to delay the respondent’s claim and that they
have a
bona
fide
defence
to the respondent’s claim.
[11] The applicants
became aware of the default judgment when a third party claimed
to own their house. This resulted in their
attorney making
enquiries and launching the rescission application in December 2013.
I find that condonation should be
granted in this instance to extend
the 20 day period and will deal with the rescission application.
[12] This is not an
instance where the applicants stopped paying and not caring to
let the respondent know, but they had telephonically
made arrangements with the respondent, although there is a
dispute as to what the terms of the arrangement were. They
believed that this, arrangement would stay the action against
them. This can be gathered by their actions as they kept
on
paying R2200.00 per month. The court cannot find that they were
in wilful default, but that they had believed that
the
application for default judgment was stayed.
[13]
In
Silver
v Ozen Wholesalers (Pty) Ltd SA 345 (AD)
Schreiner JA
held at p 352 G - H that the applicant has to prove good cause
for rescission, which would include the existence
of “a
substantial defence”.
[14] It is clear
from the papers that both parties are ad idem that the applicants
and the respondent had had a conversation
to make an arrangement
after summons was served on the applicants. The terms of the
arrangement are disputed by the respondent,
but there is no proof of
what the actual terms were. It is clear that there was a relatively
small amount in arrears when
the applicants and the respondent
communicated with one another. It makes sense that the parties,
in such circumstances,
would have come to some arrangement. This
court cannot find what the terms of the arragement was, as the
parties disagree
as to the terms thay had agreed to.
[15]
I find that the applicants have established a
bona
fide
defence, which
prima
facie
,
carries some prospect of success at trial.
[16] Therefore I
make the following order:
1. Condonation is
granted to the applicants for the late filing of this
application, outside of the time period of 20 (twenty) days
allowed in terms of the Rules;
2. Default judgment
granted by the Registrar of this Court on 28 February 2013 under
case number 64413/2012 against the first
and second applicants
in favour of the respondent under above case number is rescinded
and set aside.
3. Each party to pay
its own costs
Judge
C Pretorius
Case
number: 64413/2012
Heard
on: 26 May 2014
For
the Applicant Adv du Toit
Instructed
by: Johan Scheepers
For
the Respondent: Adv Sanders
Instructed
by: Hack Stupel & Ross
Date
of Judgment: 29 May 2014