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[2013] ZAGPPHC 117
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Breytenbach v Nedbank Ltd (71756/11) [2013] ZAGPPHC 117 (16 May 2013)
NOT
REOPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 71756/11
DATE:16/05/2013
IN
THE MATTER BETWEEN:
ELIZABETH
HELENA
BREYTENBACH
...................................................................
Applicant
and
NEDBANK
LTD
............................................................................................................
Respondent
JUDGMENT
LEDWABA
J:
[1]
Default judgment was granted against the applicant on 14 June 2012
for the payment of R283 200,25 plus interest and costs. The
Court
further ordered the Registrar to issue a writ against the property.
[2]
The Applicant is now applying for the condonation of her failure to
lodge the application for rescission of the judgment within
the
prescribed time period and that the default judgment be rescinded.
The application is opposed.
[3]
As a point of departure it should be noted that the applicant is an
estate agent and in her founding affidavit she states that
she is
residing at plot 158 Lynnwood Road, The Willows, Pretoria.
[4]
Regarding the condonation application she stated that she only came
to know about the judgment on 10 July 2012. Thereafter she
contacted
the Respondent’s attorney regarding the procedure of setting
aside the judgment and was informed that if she could
make six
consecutive payments the judgment could be rescinded.
[5]
Her first available date to consult with her attorney and counsel was
on 6 August 2012. The application for rescission was only
issued on
the 17th of August 2012. She submits that the respondent is not
prejudiced by the late filing of the application.
[6]
When submissions were made regarding the application for condonation,
the respondent did not show it would be prejudiced if
condonation is
granted. In exercising my judicial discression I condone the late
filing of the application.
[7]
Now the main issues in dispute are the following:
7.1
Whether the applicant was in wilful default and whether there is a
reasonable explanation for the default; and
7.2
Whether the application is brought bona fide, that is, whether the
applicant has a bona fide defence to the plaintiff’s
claim.
[8]
The summons was served on 17 January 2012 at forum Buffelspoort 421
Modimolle being the applicant’s chosen domicilium
citandi et
executandi. She alleges that in February 2011 she entered into a
mandate with the respondent in terms whereof the property
would be
sold with the assistance of the respondent. The respondent did market
the property as arranged.
[9]
As to why an appearance to defend was not filed, she said in January
2012 she did not file the appearance to defend because
she was told
that the action proceedings would not proceed if she paid the arrears
amount.
[10]
According to the agreement reached between herself and the
respondent’s attorneys proceedings would be stayed, she paid
three payments in the amount of R3500,00 the first payment to be in
January 2012, then February 2012 and the last payment to be
in March
2012 to settle the arrear amount.
[11]
She failed to make the payments as agreed and only made two payments
timeously and also failed to comply with further arrangements
made in
time.
[12]
As a result on 29 May 2012 an application for default judgment
incorporating Rule 46 was served on the applicant’s domicillum
being the address upon which summons was served and the applicant
acknowledge to have received the said summons.
[13]
The applicant had at least four months to file her notice of
intention to defend and she failed to do so. As an estate agent,
I
think, if she was aware that she had a defence she could have filed
the notice to defend.
[14]
The defence raised by the applicant is that she never received the
notice in terms of section 129 of the National Credit Act.
The notice
was forwarded to two addresses viz the plot on Lynnwood road which
she alleges is surrounded with a wire and the other
address being a
vacant stand. She further alleged that the respondent should have
obtained the track and trace reports.
[15]
The other defence raised by the applicant is that she was under the
impression that the negotiations between her and the respondent
were
still on even if she knew that she breached the agreement.
[16]
It has been alluded that the applicant failed to make payments as
arranged and the respondent resumed legal proceedings thereafter.
I
do not think there is anything untoward the respondents proceeding
with the legal proceedings.
[17]
The summons in this matter was issued before the Sebola v Standard
Bank of South Africa Ltd
2012 ZACC 11
which was decided in the
Constitutional Court. The respondent has shown that the notices were
sent by registered post. I do not
think it will serve any purpose to
rule that another section 129 notice should be sent.
[18]
On careful analysis of the submissions made in casu I do not think
that the applicant has succeeded to prove on the balance
of
probabilities that she was not in wilful default and that she has a
bona fide defence.
[19]
I therefore make the following order:
19.1
The applicant’s application is dismissed with costs.
A
P LEDWABA
JUDGE
OF THE HIGH COURT
HEARD
ON: 12 April 2013
FOR
THE APPLICANT: Adv N Breytenbach
INSTRUCTED
BY: Du Plessis Attorneys , Pretoria
FOR
THE RESPONDENT: Adv M Tromp
INSTRUCTED
BY: Van der Merwe Du Toit Inc, Pretoria