About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 144
|
|
Makola v Absa Bank Ltd (22543/2011) [2013] ZAGPPHC 144 (24 May 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 22543/2011
Date:
24 May 2013
In
the matter between:
MAMOKGEGKGE
BEN
MAKOLA
...................................................................
Plaintiff
and
ABSA
BANK LIMITED
…..................................................................................
Defendant
JUDGMENT
PRETORIUS
J.
[1]
The applicant approaches the court to rescind the default judgment
granted by the registrar on 11 May 2011. The applicant relies
on Rule
42 of the High Court Rules in support of the application as is set
out in
[6]
The applicant further admits that he knew that any arrangement for
paying the respondent had to be confirmed by the bank, which
was
never done. On 30 September 2010 a notice in terms of section 86(10)
of the National Credit Act was sent and received by the
Applicant,
terminating the debt review.
[7]
Counsel for the applicant argued that a section 129 letter from the
respondent was never received and that is the basis of the
defence,
in contrast to what had been forwarded as a defence by the applicant
in his affidavit.
[8]
On the same date that default judgment was granted, the applicant
served a notice of intention to defend on the respondent’s
attorneys. The present application was issued on 8 August 2012 a year
and four months after the summons had been served. The applicant
relied on rule 42 for the application to have the default judgment
rescinded but conceded that it was not applicable in the current
application.
[9]
Although the applicant had applied for debt counselling no court
order, or restructuring of the applicant’s liabilities
was
made. The proposed amount of payment of R400.00 would not been
accepted by the respondent as it is less than a quarter of the
applicant’s obligation each month.
[10]The
applicant had been aware that judgment had been granted in May 2011,
but only issued the current application 15 months after
becoming
aware of the judgment. The applicant does not set out at all how,
where and when an impression was created that if he
paid R900.00 per
month no legal action would have been taken. It is clear that he had
no arrangement with the respondent in this
regard at all. This cannot
be a defence which would entitle him to a rescission of judgement.
[11]In
any event the applicant seeks a rescission of judgment in terms of
Rule 42(1 )(a), which it has been conceded is not applicable
in this
instance.
[12]The
court has entertained the application in terms of rule 31(2)(b), but
due to the facts set out above cannot find that good
cause has been
shown to set aside the judgement. There has been no explanation for
the applicant waiting 15 months to launch the
current application.
The only inference the court can make is that the applicant was
grossly negligent.
[13]
Furthermore there is no bona fide defence, as the applicant admits
that he is in arrears. He does not set out a bona fide defence
to the
respondent’s claim at all. There are no averments by the
applicant, which established at trial, would entitle him
to the
relief sought. In Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) 345 AD
Schreiner JA held at 353:
“
It
is enough for present purposes to say that the defendant must at
least furnish an explanation of his default sufficiently full
to
enable the Court to understand how it really came about, and to
assess his conduct and motives. ”
[14]
This was not done in the present matter. I have considered all the
pleadings, heads of arguments and authorities. The applicant
failed
to prove good cause for rescission.
[15]
The order:
The
application is dismissed with costs.
Judge
Pretorius
Instructed
by : Vusi Mailula
For
the Defendant : Adv Oosthuizen
Instructed
by : Delport van den Berg INC
Date
of Judgment : 24 May 2013