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[2013] ZAGPPHC 32
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Dhoda v Standard Bank of South Africa Ltd In re: Standard Bank of South Africa Ltd v Dhoda (48627/2011) [2013] ZAGPPHC 32 (8 February 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 48627/2011
DATE:08/02/2013
IN
THE MATTER BETWEEN
ROOKSANA
DHODA
.......................................................................................................
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
...........................................
Respondent
IN
RE:-
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
..........................................
Plaintiff
and
ROOKSANA
DHODA
.......................................................................................................
Defendant
JUDGMENT
LEDWABA
J:
[1]
On 4 November 2011 this court granted
default judgment against the applicant who was the defendant in the
action proceedings. The
order granted reads as follows:
1.
Payment of the sum of R3 675 205,88.
2.
Interest on the sum of R3 675 205,88 at
the rate of 7.10% per annum compounded monthly in arrear from 15 June
2011 to date of payment.
3.
Monthly insurance premiums from 15 June
2011 on the sum of R593.02 to date of payment.
4.
An order declaring the property known
as:
Portion 1 of erf
793 forest town township,
Registration
Division I.R,
Province of
Gauteng,
Measuring: 759
Square metres,
Held
by deed of transfer T62412/2006 to be specially executable.
5.
That the Registrar of the above
Honourable Court be authorized to issue a Warrant of Attachment in
respect of the property.
6.
Costs of this application on an attorney
and client scale to be taxed.
[2]
The
applicant has now filed an application on 20 December 2011 in terms
where an order is sought in the following terms:
1.
Setting aside of the sheriff's return of
service herein.
2.
Rescinding the judgment entered by
default on 4 November 2011.
3.
Cost of suit if the Respondent oppose
the application.
[3]
On 13 January 2012 the respondent,
Standard Bank of South Africa Limited, the plaintiff in the action
proceedings filed a Notice
to Oppose. The respondent’s opposing
affidavit was served on 2 February 2012.
[4]
The applicant did not file any replying
affidavit.
[5]
The applicant in her supporting
affidavit alleged that her application is in terms of Rule 42(11) (a)
alternatively Rule 31 of the
Rules of this Court.
[6]
It is common cause that on 16 October
2006 the applicant registered a mortgage bond in favour of the
respondent as security for
monies lent and advanced.
[7]
The applicant chose the address “P.O Box 1534 Haughton Estate
2041 Gauteng
”
as
her domiciilium citandi executandi.
[8]
The sheriffs return of service reads as
follows:
“
On
the 27
th
day of September 2011 at 09h58 and at 60 Riveira road, Killarney
Mall, JHB the annexed summons, particulars of claim and annexures
was
served on the defendant, by affixing a copy of the original to P O
BOX 1534 to the POST BOX, at the given address, being defendant’s
chosen
domiciilium citandi executandi, in terms of Rule 4(1)(a)(iv)."
[9]
The applicant, in her affidavit, alleged
that the return of service is 'confused and impossible to understand’
because it
states that the particulars of claim was served at 60
Riviera Road Killarney Mall, and further states that summons served
by affixing
a copy to P.O Box 1534.
[10]
The applicant further stated that the
service does not comply with the rules.
[11]
Rule 4(1)(iv) of the Uniform Rules of Court provides that proceedings
shall be effected by the sheriff
“
If
the person so to be served has chosen a domicilium citandi, by
delivering or leaving a copy thereof at the domicilium so chosen."
[12]
The applicant does not deny that she
chose the “P.O Box” as her domicilium. There is no
confusion in the return of service,
the address 60 Riveira Road
Killarney Mall explains where the applicant’s post box is.
There is no merit, in my view, in
the applicant’s prayer that
the sheriffs return of service should be set aside. There is nothing
irregular about the service.
[13]
T
he
applicant in her founding affidavit also raised a constitutional
issue of her right to housing in terms of section 26 of the
Constitution. In the combined summons it is clearly stated that,
“should the defendant claim that the order for execution
will.
infringe that right it is incumbent on the defendant to place
information supporting that claim before the court."
[14]
Except to allege that she resides
with her three minor children on the property, the applicant has not
placed any information showing
how her right to housing would be
infringed. The respondent’s rights to claim should also be
considered.
[15]
I also looked at the notice in terms
of section 129 of the National Credit Act 34 of 2005.There is proof
that the letter was sent
by registered post to the domicilium address
in August 2011. I have considered the decision of Sebola v Standard
Bank 2012(5) S/\
142 CC. The applicant, except to allege that she
never received the notification, she did not allege why she could not
have received
the notice.
[16]
I have carefully considered the
requirements for an application for rescission under Rule 31. The
applicant does not allege that
she is no more using the post box. The
arrears at the time of issuing summons amounted to about R1,5 million
rands. She has also
failed to show that she has a bona fide defence
to the claim and that her application is not made with the intention
to merely
delay the plaintiff's claim.
[17]
The default judgment granted was
properly granted on the information available to the court and I
cannot find any irregularity.
[18]
I
therefore make the following order:
20.1 The
applicant’s application is dismissed with costs.
A
P LEDWABA
JUDGE
OF THE HIGH COURT
HEARD
ON: 1 October 2012
FOR
THE APPLICANT: Adv Sam Shalom Cohen
INSTRUCTED
BY: Gary Segal Attorneys, Joh +
45
annesburg
FOR
THE FRESPONDENT: Adv Wynand Roos
INSTRUCTED
BY: Velile Tinto & Associates, Pretoria