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[2013] ZAGPPHC 325
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CHC Administrators (Pty) Ltd v Absa Bank Ltd (A196/13) [2013] ZAGPPHC 325 (7 November 2013)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
no:A196/13
Date:07/11/2013
In
the matter between:
CHC
ADMINISTRATORS (PTY)
LTD
...............................................................
APPELLANT
AND
ABSA
BANK
LIMITED
....................................................................................
RESPONDENT
JUDGMENT
BAQWA
J; MANAMELA AJ
[1]
This is an appeal against the judgment of the learned Magistrate
Windell delivered on 17 January 2013 in terms of which the
honourable
Magistrate
dismissed
the appellant’s application for rescission of the interim
attachment order, final order and default judgment with
costs.
[2]
The grounds of appeal are outlined in the Notice of Appeal dated 8
February 2013.
Background
[3]
The appellant and the respondent entered into a credit agreement on 5
December 2008 in terms of which the respondent sold or
leased to the
appellant an aircraft, a 1982 Piper PA34-220T.
[4]
The aircraft was duly delivered to the appellant as per the
agreement.
[5]
According to the respondent, the applicant fell into arrears with the
monthly instalment paid terms of the agreement. As at
5 April 2011
appellant was in arrears to the tune of R97, 224.68.
[6]
According to respondent’s calculations, as at June 2012 the
appellant was in arrears with payments in the amount of R192,328.88
and the total indebtedness to the respondent amounted to R619,458.18.
[7]
A further calculation indicates that appellant effected subsequent
payments and reflects arrears as R233,387.45 and the total
outstanding balance as R534.751.27 as at 12 October 2012.
[8]
Respondent instituted litigation as a result of appellant’s
breach and on 4 May 2011 was granted an order by Magistrate’s
Court Potchefstroom, a rule nisi returnable on 18 July 2011 on which
date appellant was afforded an opportunity to submit reasons
why an
interim order for the return of the aircraft to the respondent should
not be made final.
[9]
On 18 July 2011 and in the absence of an appearance for the applicant
a final order was granted by the Magistrate’s Court.
The order
was served at the appellant’s registered address being 12
Strydom Street, Bailey Park, Potchefstroom, by the Sheriff
on 9 May
2011.
[10]
Further respondent issued summons out of the Magistrate’s Court
on 4 May 2011 in order to quantify its damages. This
was done
subsequent to the repossession of the aircraft by respondent.
[11]
Despite proper service, appellant did not enter appearance to defend
and default judgment was granted on 10 October 2011.
[12]
Rule 49(1) provides as follows:
"A
party in which a default judgment has been given, or any person
affected by such judgment, may within 20 days after obtaining
knowledge of the judgment serve and file an application to court, on
notice to all parties to the proceedings for the rescission
or
variation of the judgment and the court may upon good cause shown, or
if it is satisfied and there is good reason to do so,
rescind or vary
the default judgment on such terms as it deems fit: Provided that 20
days’ period shall not be applicable
to a request for decision
or variation of judgment brought in terms of subrule (5). ”
[13]
It is also essential to take cognisance of the provisions of Rule
49(3):
"Where
an application for rescission of a default judgment is made by a
defendant against whom the judgment was granted, who
wishes to defend
the proceedings, the application must be supported by an affidavit
setting out the reasons for the defendant’s
absence or default
and the grounds of the defendant’s defence to the claim. ”
[14]
The process issued by respondent, served by the Sherriff, was served
at 12 Strydom Street Bailey Park, Potchefstroom being
the registered
address of the appellant.
[15]
One of the appellant’s directors, Joubert contends that
approximately two years prior to the disposing to the founding
affidavit the appellant’s bookkeeper, who was not named in the
said affidavit relocated to 10 Du Plooy Street, Potchefstroom.
No
confirmatory affidavit however was annexed in this regard to
appellant’s founding papers. Appellant states that the said
bookkeeper neglected to amend the appellant’s registered
address.
[16]
This averment by Joubert however contradicts the portion of her
affidavit which she refers to the appellant’s registered
address as 12 Strydom Street, Bailey Park, Potchefstroom. This
affidavit was deposed to by Joubert on 18 September 2012.
[17]
This is a significant contradiction on Joubert’s part because
it leads to the inference that the registered address of
the
appellant had not changed. This is exacerbated by the fact that no
CIPRO documents were annexed by appellant to its founding
papers to
clarify the change of address.
[18]
In Pountas Trustee v Lahannes
1924 WLD 67
at 68 the law in this
regard was stated as follows:
‘
An
applicant must stand or fall by his petition and the facts alleged
therein and though sometimes it is permissible to supplement
the
allegations contained in the petition still the main foundation of
the application is the allegation of the facts stated therein
because
those are the facts which the respondent is called upon either to
affirm or deny. ”
Given
the fact that the averments by Joubert were made in appellant’s
founding papers, under oath, the contradiction cannot
but weaken
appellant’s case regarding proof that appellant was not in
wilful default.
[19]
Further, in this regard, Joubert states in her affidavit:
"4.10.2
The applicant only became aware of the existence of the respondent’s
action and application under discussion
on 27 August 2012, being the
date on which I consulted with the applicant’s attorney... ”
[20]
This is directly contradicted by an email sent by Freda Uys, a
representative of the attorneys of the respondent on 17 June
2011
stating that the Sheriff was going to attach and remove the aircraft.
Yet, despite that knowledge no action was taken by the
appellant and
its directors. This is yet another indication of wilful default by
the appellant.
[21]
Another requirement which appellant had to meet is to prove the
existence of a bona fide defence.
[22]
Even though appellant states that she is not in arrears with
payments, Joubert had made an admission to the contrary to a
representative of the respondent. She had admitted to N. Zondo on 19
July 2011 that the arrears amounted to R173,379.00.
[23]
As a result an offer to pay an extra R17,000.00 a month equating to a
total payment of R40,000.00 a month which would have
the result that
the arrears would be caught up in nine months.
[24]
Appellant avers that she has already paid a total amount of
R509,088.72 but annexes no documentary proof of payments that were
made in order to substantiate that averment.
[25] In Standard Bank of South Africa
Ltd v Roestof 2004(2)SA 492(W) the
defendant
was confronted with an application for summary judgment based upon a
mortgage bond. After considering the defendant’s
affidavit
resisting summary judgment, the court held that the defence deposed
to by the defendant was one of compliance with his
obligations, which
would be a good defence to the plaintiff’s claim, if it were
properly substantiated at (499A). The court
went on to say the
following:
However,
no details are furnished relating to:
(i)
What were the bond payments which the defendant alleges were made by
him and how were they made up i.e to whom and what manner
was payment
made ?
(ii)
When and where and in what form were such payments made ?
(iii)
When and where and with whom on behalf of the plaintiff bank were the
arrangements referred to by the defendant made and the
agreement
arrived at (499B-C).
[26]
The learned authors Jones and Buckle in The Civil Practice on the
Magistrate’s Courts in South Africa. 10th edition,
volume 2,
the Rules at page 49-6 state the following: "The sub-rule
imposes on the applicant for rescission the burden of
actually
proving, as opposed to merely alleging, good cause for rescission."
[8]
Joubert's averments on behalf of the appellant flies in the face of
documented averments by respondent setting out the chronology
of
payments and history of non-payments and finance charges applicable
to the repayment of the principal debt from December 2008
to June
2012. She also fails to address the issue 18 payment rejections which
date back to February 2009.
[9]
Having considered the facts, the requirements of Rule 49, the law as
stated in the decided cases I have come to the conclusion
that the
appellant failed to make out a case for rescission as prayed in the
Notice of Motion. More particularly, appellant failed
to prove a bona
fide defence to respondent’s claim.
[10]
In the result, I propose that the following order be made:
The
appeal is dismissed with costs.
S.A.M
BAQWA
(JUDGE
OF THE HIGH COURT)
I
agree.
K.
MANAMELA
(ACTING
JUDGE OF THE HIGH COURT)