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[2013] ZAGPPHC 102
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Standard Bank of SA Ltd v Thobejane (3586/2013) [2013] ZAGPPHC 102 (11 April 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO: 3586/2013
DATE:11/04/2013
In
the matter between:-
STANDARD
BANK OF SA LIMITED
...........................
Plaintiff
and
ELIZABETH
ESTHER THOBEJANE
...........................
Defendant
(ID:)
JUDGMENT
1.
This is an application for summary judgment based on an instalment
sale agreement of a Mercedes Benz, entered into between the
parties
on 11 May 2007. The Defendant is in default with her obligations and
her arrears amounted to R243 474,84.
2.
The Defendant filed an opposing affidavit containing a number of
defences.
3.
Two of the defences are of a technical nature. The first one being
that the deponent to the affidavit accompanying the application
for
summary judgment, do not have personal knowledge of the facts she
deposed to. I am of the opinion that there is no merit in
this
particular point. The next defence is that the Defendant avers that
she did not receive Annexures “D1”, “E1”
and
“
F1”
to the summons claiming summary judgment. “D1” is the
letter putting her on terms to pay and “El"
a letter of
cancellation of the instalment sale agreement. Both letters were sent
to her chosen domicilium citandi et executandi.
However, as the
addresses to which the annexures were sent, were the chosen
domicilium citandi et executandi of the Defendant,
the Plaintiff was
fully within its rights, to send the notices to these particular
addresses.
4.
Annexure "F1”, being a notice in terms of Section 129 of
the National Credit Act, was dispatched to four different
post
offices, neither of which apparently serves the Defendant’s
home address. An affidavit confirming that any of these
post offices
are the one in which the home address of the Defendant falls, is
lacking. On the face of the track and trace report,
the Defendant did
not get this particular notice, as it was apparently sent to the
wrong post office.
5.
The principal defence of the Defendant is that the Plaintiff has
instituted an action against her in the Kempton Park Magistrate’s
Court on the same cause of action as in casu (claiming delivery of
the Mercedes Benz motor vehicle). Summary judgment was granted
in
this particular Court against her for delivery of the vehicle and
ancillary relief. The Defendant then lodged an appeal against
the
judgment to the South Gauteng High Court. The Plaintiff at one stage
brought an application to set aside the appeal but later
withdrew it.
6.
From the annexures it appears that this is indeed the case. The
argument then is that the matter is res judicata, as a competent
Court has already decided upon it. It is pointed out in the opposing
affidavit that the summary judgment against the Defendant
and the
appeal in the South Gauteng High Court against it, still stands.
7.
Counsel for the Plaintiff handed up a notice of withdrawal of the
present action in the High Court, dated 9 September 2012. He
then
argued that there is consequently nothing before this Court, to
decide upon.
8.
The fact remains that there is a final judgment against the
Defendant (in the Magistrate’s Court) flowing from an action,
between the same parties on the same cause of action. The conditions
for a plea of res judicata has consequently been met. (Compare
Amlers: Precedents of Pleadings. 6th Edition p 302 and 303 and the
authorities quoted there.
9.
The withdrawal of the action in this Court does not affect the
finality of the judgment in the Magistrate’s Court in Kempton
Park. Furthermore, a pending appeal in the South Gauteng High Court
does not nullify a plea of res judicata, as it does not effect
(at
this stage at least) the finality of the particular judgment.
(Compare Jones v Krok
[1994] ZASCA 177
;
1995 (1) SA 677
at 692B).
10.
In view of the above, I am of the opinion that the Defendant
succeeded in warding off summary judgment in this particular matter.
11.
The following order is then made:-
11.
Leave to defend is granted to the Defendant;
12.
Costs will be costs in the cause.
I
M BREDENKAMP AJ
16
April 2013