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[2014] ZAGPPHC 372
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Mare v Firstrand Bank Limited t/a Nissan Finance (26465/2012) [2014] ZAGPPHC 372 (13 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
26465/2012
DATE: 13 JUNE
2014
In the matter
between:
JAN HENDRIK
MARE
..............................................................................................................
APPLICANT
and
FIRSTRAND BANK
LIMITED T/A NISSAN
FINANCE
...................................................
RESPONDENT
JUDGMENT
KUBUSHI, J
[1] In this
application before me the applicant seeks to rescind a judgment
granted in his absence which he contends was granted
erroneously.
[2] The parties
entered into an instalment sale agreement on 23 November 2007. In
October 2009 the applicant applied for debt review
and was on 11
August 2010 granted a debt review order. The applicant defaulted on
the payments in terms of the debt review order.
Based on such default
the respondent instituted action and obtained judgment against the
applicant. It is this judgment which the
applicant seeks to rescind.
[3] The applicant
not being aware of the judgment granted against him, brought a second
debt review application which resulted in
a second debt review order
being granted in his favour. The respondent is disputing the validity
of this order. Subsequent to the
above mentioned processes, the
applicant became aware of the judgment granted against him and has as
a result approached this court
for the rescission thereof.
[4]
The applicant launched the rescission application in terms of uniform
rule 42 (1)
(a).
The
rule provides as follows:
“
1.
The court may, in addition to any other powers it may have,
mero
motu
or
upon application of any party affected, rescind or vary:
(a)
An
order or judgment erroneously sought or erroneously granted in the
absence of a party affected thereby____”
[5]
Generally a judgment is erroneously granted if there existed at the
time of issue a fact which the judge was unaware of, which
would have
precluded the granting of the judgment and which would have induced
the judge, if aware of it, not to grant judgment.
For example, an
order or judgment is erroneously granted if there was an irregularity
in the proceedings or if it was not legally
competent for a court to
make that order. See
Naidoo
v Matlala NO
1
[6] The applicant
raised various grounds in support of the rescission of the judgment
granted against him. However, in my view,
what was important was
whether at the time the judgment was granted there was a fact which
the judge was unaware of, which would
have precluded such judge from
granting the judgment.
[7]
In this instance, the submission by the applicant is that the fact
that may have induced the judge not to grant the judgment
is that the
summons was not properly served on him. According to the applicant,
at the time of service of the summons he had already
moved away from
the address at which the summons was served. He contends that because
of this move the summons did not come to
his knowledge that is why he
did not file his notice to defend the matter. The respondent on the
other hand contends that the service
was proper as it was served at
the address chosen by the applicant in terms of the instalment sale
agreement, that is, the applicant’s
domicilium
citandi et executandi.
[8]
The parties’ counsel went at length to debate whether it was
proper or not to have served the summons at the applicant's
domicilium citandi
et executandi,
a
debate which I found irrelevant for purposes of this application.
What was of importance in my view was whether the applicant
was aware
of the summons at the time the judgment was granted. The applicant’s
evidence is that he was not aware of the summons.
The evidence of the
respondent does not gainsay this allegation. In fact the respondent's
evidence confirms that they were aware
of the change of the
applicant’s physical address which was reflected in the debt
review court application served on them.
In my view, I have to infer
that they were aware that the applicant has moved places.
[9]
Absent evidence disproving the applicant's allegation that he had not
been resident at the address at which service of summons
was effected
I have to infer that the applicant was not aware of the summons that
had been issued before the judgment was granted.
In the premises
there had not been service of the summons on the applicant. If this
fact had come to the knowlegde of the judge
who granted the judgment
he or she may not have granted it. The judgment was therefore granted
erroneously in the applicant's absence.
In general an improper
service of summons will cause akk subsequent steps to be invalid as a
result where a summons has not been
served on a defendant, a
subsequent judgment granted in default is liable to be set aside in
terms of uniform rule 42 (1) (a).
[10]
Once the court holds that an order or judgment was erroneously
granted it should without further enquiry rescind the order
and it is
not necessary for a party to show good cause. See
Tshabafaia
and Another v Peer
2
and
Topol
and Others v LS Group
management
Services (Pty) Ltd
3
.
[11] The applicant
in his notice of motion prayed for an order of costs against the
respondent on an attorney and client costs.
My view however is that
since the applicant was asking for an indulgence the respondent
should not be burdened with a cost order.
An appropriate cost order
is for each party to bear own cost.
[12] Consequently I
make the following order:
12.1 The judgment
granted against the applicant under case number 26465/2012 on 18 june
2012 is rescinded.
12.2 All execution
steps including the repossession and sale of the goods described as
2004 Ford Bantam 1.3 XL A/C with engine number
3L020449 and chassis
number AFAWAXMJKW4E00691, is set aside.
12.3 Each party to
pay own costs.
E.
M. KUBUSHI
JUDGE OF THE HIGH
COURT
Appearances
HEARD
ON THE: 13 MAV2014
DATE
OF JUDGMENT : 13 JUNE 2014
APPLICANTS'
REPRESENTATIVE: MR GREEFF
APPLICANTS'
ATTORNEY: GREEFF & VAN WYK ATTORNEYS
RESPONDENT'S
COUNSEL: ADV JACOBS
RESPONDENT’S
ATTORNEY: HACK STUPEL & ROSS
1
2012 (1) SA143 (GNP) at 153C
2
1979
(4) SA 27
(T) at 30D - E
3
1988
(1) SA 639
(W) at 650D -1