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[2014] ZAGPPHC 351
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Mphambela v Standard Bank of South Africa Ltd (15263/2010) [2014] ZAGPPHC 351 (13 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
13/6/2014
CASE
NUMBER: 15263/2010
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
ANDREW
ALLEN TSHEPO
MPHAMBELA
...............................................................
APPLICANT
And
THE
STANDARD BANK OF SOUTH AFRICA
LTD
.............................................
RESPONDENT
JUDGMENT
LEPHOKO
AJ
[1]
This is an application for the rescission of a default judgment
granted against the applicant on 19 October 2010. The judgment
declared the applicant’s property executable which led to it
being advertised for sale in execution on 18 January 2011.
[2]
On 17 January 2011 the applicant brought an urgent application to
interdict the sale in execution and this court interdicted
the
respondent from selling the property pending the outcome of an
application for rescission. The applicant then brought this
application for rescission.
[3]
In order to succeed with the application for rescission the applicant
must show that he was not in willful default, that the
application is
bona fide
and not made with the intention to delay the
plaintiff’s claim and that he has a
bona fide defence,
which
prima facie
has some prospects of success: Grant v Plumbers
(Pty) Ltd
1949 (2) SA 470
(O) at 476 – 477, Morkel
v ABSA Bank Bpk
1996 (1) SA 899
(C) at 903D – E, Standard Bank
of SA Ltd v EL-Naddaf
1999 (4) SA 779
(W) at 784.
WILLFUL
DEFAULT
[4]
According to the sheriff’s return the summons was served on the
applicant by affixing a copy thereof to the outer principal
door at
the defendant’s chosen domicilium citandi et executandi, being
314 Zone 7 Pimville.
[5]
The respondent alleges that the summons was served at the correct
address as per clause 5.1 of the mortgage bond. The applicant
denies
that this is his chosen
domicilium citandi et executandi
as he
never nominated or chose a
domicilium citandi et executandi.
[6]
Clause 5.1 reads as follows:
“
The
mortgagor chooses the street address set out below as the address to
which notices and documents in any legal proceedings against
the
mortgagor, including notices of attachment of the property, may
be served”.
The
address set out in clause 5.1 is 314 Zone 7 Pimville. A
domicilium
citandi et executandi
is simply a place chosen by a person where
process in legal proceedings may be served on him. The applicant’s
argument is
without any merit as clause 5.1 clearly and unambiguously
stipulates an election of the address 314 Zone 7 Pimville as his
chosen
domicilium citandi et executandi.
I am satisfied that
the applicant has chosen this address as
his domicilium citandi et
executandi.
I also accept that there was proper service of the
summons on the applicant as service was effected at his chosen
address.
[7]
As the summons was served by affixing a copy thereof to the outer
principal door, I accept that a possibility exist that the
summons
may not have come to the attention of the applicant. For this reason
I am of the view that the applicant has established
that he was not
in willful default.
BONA
FIDE DEFENCE
[8]
It was submitted on behalf of the applicant that his defence is based
on the following grounds:
The
applicant made several payments towards settling the alleged arrears
or his indebtedness to the plaintiff. In this regard
the applicant
referred to a payments of R5 000-00 and R17 000-00 made on 2 July
2009 and on 5 May 2010 respectively.
The
agreement in annexure “A” (namely, the agreement setting
out the terms and conditions of loans secured by mortgage
bonds)
should be disregarded as the real agreement between the parties was
as set out in the mortgage bond.
The
nominated street and postal addresses that appear on the mortgage
bond and annexure “A” as addresses for service
were not
the applicant’s addresses and accordingly the notice in terms
of section 129 of the National Credit Act 34 of
2005 (the NCA) was
not brought to his attention, alternatively was delivered at an
incorrect address and as a result the respondent
was not entitled to
institute the legal action that culminated in the default judgment
and the intended sale in execution.
[9]
In its answering and supplementary answering affidavits the
respondent alleges that:
The
applicant and the respondent entered into a written agreement whose
terms and conditions are set out in annexure “A”
to the
answering affidavit. (the terms and conditions of loans secured by
mortgage bonds).
The
mortgage bond in issue was registered pursuant to the agreement in
annexure “A”
314
Zone 7 Pimville is the applicant’s chosen street address for
delivery of notices and documents in any legal proceedings
against
the applicant as appears in clause 5.1 of the mortgage bond.
317
Zone 7 Argyle, 2001 is the applicant’s chosen postal address
for delivery of letters, statements and documents in any
legal
proceedings against the applicant, as appears in clause 5.2 of
annexure “A”.
The
applicant has not made any further payments since 05 May 2010 and as
on 16 September 2013 the arrears on the applicant’s
account
amounted to R480 236-33.
[10]
The applicant did not file a replying affidavit in response to the
averments made in the answering affidavits. The purpose
of a replying
affidavit is to respond to the averments made by the respondent in
the answering affidavit. In the absence
of a replying affidavit
the respondent’s averments not dealt with in the applicant’s
founding affidavit must be considered
as new facts requiring a
response from the applicant. If the applicant fails to respond to
these new facts or averments they must
be taken as admitted.
[11]
Clause of annexure “A” states that: “
Loan”
means any amount which the Bank has lent or agreed to lend to the
Mortgagor.
“
Loan
Agreement” means the loan agreement made up of the letter of
grant (as accepted by the Mortgagor) these terms and conditions
and
the bond”
According
to the definition these documents, read together, constitute the
agreement between the parties. It is common cause that
on 27 November
2009 the respondent issued two separate notices in terms of section
129 of the NCA which were dispatched by registered
post to 314 Zone 7
Pimville and 317 Zone 7, Argyle, 2001. It was argued on behalf of the
applicant that these addresses were not
the applicant’s
addresses and the respondent had a duty to ensure that the applicant
receive the notice in terms of section
129 (the notice). The
respondent argued that by sending the notice to both addresses it had
done enough to bring the notice to
the attention of the applicant.
[12]
The applicant contends that the addresses to which the notice was
sent are not his addresses. The addresses appear in a written
agreements signed by the applicant. The applicant does not place the
agreement in dispute nor does he set out any basis why the
addresses
must not be accepted as correct. He does not, for example, allege
that the agreement is void for mistake or that it was
induced by
fraud, duress or misrepresentation. In the absence of any
satisfactory explanation why the terms of the written agreement
should not be accepted as correct, the court is entitled to accept
them as correct.
[13]
The respondent had to comply with section 129 of the NCA by sending
the requisite notice to the address nominated by the applicant
before
it could institute legal proceedings. In Kubyana v Standard Bank of
South Africa Ltd
[2014] ZACC 1
(20 February 2014) the Constitutional
Court stated that it is sufficient to bring the section 129 notice to
a consumer’s
attention for that consumer to have agreed to
receive the notice by way of registered mail and then to receive a
notification that
a registered item is awaiting her attention unless
a reasonable consumer would not, in the circumstances, have taken
receipt of
the notice.
[14]
The applicant does not deny that the notice in terms of section 129
was sent to the correct addresses as nominated in the agreement
or
that if the address is correct it would have been reasonable for him
to respond to that notice. I am satisfied that the respondent
has
duly complied with the provisions of section 129 of the NCA and was
therefore entitled to institute legal action against the
applicant.
[15]
The applicant does not dispute that he is in breach of the agreement,
his arrears are in excess of R400 000-00 and that he
has not made any
payment for a period of four years since 5 May 2010. The conduct of
the applicant including the fact that this
application was launched
on 02 February 2011 and he has not taken any reasonable steps to have
it finalized supports the respondent’s
contention that it is
not
bona fide
and was instituted solely for the purpose of
delaying the plaintiff’s claim.
[16]
I have already found that the notice in terms of section 129 of the
NCA was sent to the address nominated by the applicant
and that the
summons was properly served on the applicant. The applicant has
failed to show good cause for the setting aside of
the default
judgment as he failed to show that the application is made
bona
fide
and that he has any
bona fide
defence which
prima
facie
has some prospects of success. In the absence of good cause
the application must fail.
[17]
The agreement between the parties provides for costs on an attorney
and own client scale and the respondent asked for such
costs. No
argument was advanced on behalf of the applicant as to why costs
should not be awarded on the agreed scale. I see no
reason why costs
should not be allowed as agreed between the parties.
In
the circumstances the following order is made:
1.
The application for rescission of the default judgment granted by
the court on 19 October 2010 is dismissed.
2.
The interdict granted by the court on 17 January 2011 is hereby
discharged.
3.
The applicant is ordered to pay the costs of the application on
an attorney and client scale.
_____________________________________
A
L C M LEPHOKO
(ACTING
JUDGE OF THE HIGH COURT)
Heard
on: 05 May 2014.
Judgment
delivered on: 13 June 2014
For
the Applicant: Adv.: C Tshavhungwa
Instructed
by: ROTHBART INC
For
the Respondent: Adv.: R van der Heever
Instructed
by: HACK STUPEL & ROSS