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Mofuta v SA Taxi Securitisation (Pty) Ltd, In re: SA Taxi Securitisation (Pty) Ltd v Mofuta (2954/2011) [2013] ZAFSHC 95 (20 June 2013)

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Civil Procedure
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Brief Summary

Execution — Rescission of judgment — Applicant seeking rescission of default judgment and setting aside of writ — Applicant alleging lack of knowledge of summons — Respondent asserting proper service at chosen domicilium — Court determining whether applicant established sufficient cause for rescission — Applicant failed to prove reasonable explanation for default and bona fide defence — Default judgment upheld.

Comprehensive Summary

Summary of Judgment


Introduction


The matter concerned an application for rescission of a default judgment and the consequential setting aside of a writ of execution issued pursuant to that judgment. The proceedings were brought in the Free State High Court, Bloemfontein, before Rampai J.


The applicant was Mofuta, Sankoela Petrus, who had been the defendant in the main action. The respondent was SA Taxi Securitisation (Pty) Limited, the plaintiff in the main action and the credit provider/lessor under the underlying agreement.


Procedurally, the respondent had instituted action against the applicant during 2011 arising from alleged payment default under a vehicle lease agreement. A default judgment was granted by the registrar on 21 September 2011, followed by the issuing of a writ on the same date. The vehicle was attached and repossessed by the sheriff during November 2011. The applicant only launched the rescission application on 21 December 2012, contending that he had not known about the action because the summons had allegedly not been served on him, and contending further that the judgment was “erroneously granted” (including reliance on Rule 42).


The general subject-matter of the dispute was the enforcement of a vehicle lease (in the taxi-finance context) and, in the rescission application, whether the applicant had shown good/sufficient cause to set aside the default judgment, including whether there had been proper service of the summons and proper compliance with the National Credit Act 34 of 2005 (“the NCA”), particularly sections 129 and 130.


Material Facts


The parties concluded a lease agreement on 19 May 2009 in respect of a 2009 Toyota Quantum (Sesfikile) intended for use as a taxi. The initial term was 60 months, the applicant paid a deposit of R50 000, and the monthly instalment was R8 429,60, payable from 1 July 2009.


It was not in dispute that the applicant fell into arrears under the agreement. By 5 March 2010 the arrears were R28 345,33, and on that date the parties concluded a variation agreement in terms of which the arrears were capitalised and added to the lease amount, the lease term was extended to 72 months, the monthly instalment increased to R8 677,62, and interest was fixed at 26,5% per annum.


The variation did not resolve the payment problems and the respondent sued the applicant. The summons was issued on 1 August 2011, in which the respondent alleged arrears and cancellation of the lease due to default, with consequential relief including return of the vehicle.


Default judgment was granted on 21 September 2011, ordering (among other relief) restoration of possession of the vehicle to the respondent. A writ was issued on the same day. The sheriff attached the vehicle on 16 November 2011 and repossessed it on 18 November 2011, returning it to the respondent.


In the rescission application, the applicant’s case included the factual assertion that he had no knowledge of the action because the summons was allegedly never served on him; he contended that the default judgment was therefore erroneously granted. The respondent disputed this and relied on a sheriff’s return of service stating that service of the combined summons and annexures was effected personally on the applicant at 597 Meqheleng, Ficksburg on 3 August 2011 at 12:50.


A further factual dispute concerned compliance with the NCA. The applicant alleged non-receipt of the section 129 notice. The respondent alleged that the notice was sent by registered mail to the applicant’s chosen domicilium citandi et executandi, being the same Ficksburg address. Documentary proof was placed before the court showing posting and tracking to the relevant post office, with a record that the registered item was collected by an identified person (N.D. Makhubo). It was common cause that the applicant did not personally collect the registered item, but the court considered the probabilities regarding collection on his behalf.


The court also had regard to chronology relevant to delay: the rescission application was only launched in December 2012, long after the repossession in November 2011, and there was no substantive explanation in the founding papers for the lapse of time or a separate condonation application.


Legal Issues


The central legal questions were whether the applicant had established good cause/sufficient cause for rescission of the default judgment under Rule 31(2)(b) (and whether Rule 42 had any application on the applicant’s version), which required determination of two interlinked inquiries: whether the applicant provided an acceptable explanation for the default and whether he disclosed a bona fide defence with prospects of success.


A key factual-and-legal issue was whether the applicant in fact had knowledge of the action, including whether the summons was properly served and whether he was in wilful default (as understood in rescission jurisprudence). This involved evaluation of the evidentiary status of a sheriff’s return as prima facie proof and whether the applicant had raised a sufficiently substantive challenge to it to create a genuine dispute.


A further issue concerned statutory compliance with the NCA, specifically whether the respondent had complied with sections 129 and 130 (and what follows if the consumer asserts non-receipt of the section 129 notice), and whether any alleged non-compliance could render the summons or the judgment “erroneously granted”.


Finally, the court addressed two preliminary objections: whether the respondent was required to attach proof that it was a registered credit provider to the summons, and whether the respondent’s deponent had shown authority (by resolution) to depose to the answering affidavit.


Overall, the dispute required determination of contested facts (service and receipt/notification), application of established rescission principles to those facts, and evaluative judgment as to whether the applicant had met the conjunctive rescission test.


Court’s Reasoning


The court approached the matter through the established requirements for rescission of default judgment. It held that the applicant bore the onus to show sufficient cause, which involves a conjunctive enquiry: a reasonable explanation for the default together with a bona fide defence carrying some prospect of success. The court relied on authority emphasising that it is not enough to satisfy one element and not the other, and that explanations must be assessed in context, including the nature of the defence.


On the NCA issue, the court analysed the documentary material produced by the respondent concerning the section 129 notice. It found that the notice was sent by prepaid registered mail to the address the applicant chose as his domicilium citandi et executandi, and that tracking evidence showed the registered item reached the appropriate post office with collection notifications having been issued. Although the item was collected by a third party, the court considered it highly probable on the papers that the third party collected it on the applicant’s behalf, and that the mechanisms of registered post and collection made it unlikely that it had been erroneously delivered to a complete stranger unrelated to the addressee.


The court further reasoned that, even if the applicant’s non-receipt were accepted, authority indicated that actual receipt is not invariably required where the credit provider has sent the notice to the consumer’s chosen address and can prove delivery to the appropriate post office. In this regard, the court referred to decisions of the Supreme Court of Appeal and the Constitutional Court addressing what constitutes adequate proof of delivery and the inference of receipt for purposes of section 129 compliance. The court treated the statutory question as one of whether the credit provider had taken the steps the law requires (including posting to the chosen address and proof of delivery to the correct post office), rather than whether the consumer subjectively acknowledged actual receipt in every case.


Turning to the crucial question of knowledge of the summons and wilful default, the court treated the sheriff’s return of service as prima facie proof of personal service. It accepted that such a return can be challenged, but held that this becomes relevant only where the papers raise a reasonable doubt about its correctness. The court examined the applicant’s affidavits and found his challenge to be bald and materially thin, because he did not meaningfully engage with the specifics of the return (including the time, date, and place of service), did not state where he was at the critical time, and did not provide detail that could plausibly rebut the return. The court also noted the absence of any attempt to confront the sheriff about an allegedly false return.


The court attached significance to the fact that the summons was served at the address selected by the applicant as his domicilium, and it reasoned that the contractual domicilium arrangement placed a burden on the applicant to raise a concrete basis for disputing service at that address. The court identified specific avenues by which a domicilium/service contention might have been substantiated (for example, showing that the address was not chosen, that service occurred at a different address, or that the domicilium had been changed by written notice), but held that none of those were advanced on the applicant’s papers.


The court also took into account the delay in bringing the rescission application. It observed that the timeline suggested the applicant’s founding affidavit contained a date inconsistency about the repossession year and that, on the court’s reading of the sequence, the vehicle had been repossessed in November 2011, whereas the rescission application was launched in December 2012. The court treated the lack of explanation for the delay and the absence of a condonation application as factors undermining the credibility and adequacy of the applicant’s explanation and indicating a lack of serious intention to defend.


Having found the applicant’s explanation for default unacceptable, the court nonetheless proceeded to consider whether the alleged defence could compensate, bearing in mind authority that the explanation should not be assessed in isolation. The applicant’s asserted defence was essentially that the respondent had granted him reckless credit contrary to section 80 of the NCA, allegedly through pressure and undue influence. The respondent denied reckless credit. In addition, the court considered authority to the effect that, even if reckless credit were established, that would not necessarily constitute a defence to a claim for return of the leased vehicle after cancellation in the taxi-finance context.


The court also considered the applicant’s admission, in disputing only the amount of arrears, as implicitly acknowledging arrears. It held that the applicant’s denial was not meaningfully substantiated, because he failed to specify the arrears he contended were actually owing, and he did not pertinently deny breach. In the same vein, the court referred to the evidentiary effect of the certificate of balance as prima facie proof and found that the applicant had not rebutted it in a manner that could sustain a defence with prospects of success.


The court further regarded as damaging the applicant’s statement that he had been advised that the merits of his defence were not relevant at rescission stage; the court treated this as incorrect in law and indicative that the applicant had not properly placed material facts before the court to demonstrate prospects of success.


Finally, the court dealt with the points raised in limine. It dismissed the objection about the absence of a certificate proving registration as a credit provider and the objection regarding the deponent’s authority, finding neither point well-founded on the papers.


In sum, the court concluded that the applicant failed both legs of the rescission enquiry: he did not provide a satisfactory explanation for default and did not disclose a bona fide defence with prospects of success. It therefore found no basis to rescind the default judgment or set aside the writ.


Outcome and Relief


The court dismissed the rescission application. It ordered the applicant to pay the respondent’s costs. The default judgment and the writ issued pursuant to it were left intact and continued to stand.


Cases Cited


Chetty v Law Society, Transvaal 1985 (2) SA 756 (AD)


Harris v Absa Bank Ltd t/a Volkskas 2006 (4) SA 527 (T)


Majola v Nitro Securitisation 1 (Pty) Ltd 2012 (1) SA 226 (SCA)


Rossouw and Another v Firstrand Bank Ltd 2010 (6) SA 439 (SCA)


Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC)


SA Taxi Securitisation (Pty) Ltd v Mbatha and Two Similar Cases 2011 (1) SA 310 (GSJ)


Greeff v Firstrand Bank Limited 2012 (3) SA 157 (NCR)


Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A)


R v Reddy 1996 (2) SACR 1 (AD)


SA Taxi Development Finance (Pty) Limited v Mahlodi Rulph Phalafala (2013) SGHC, Johannesburg 1512 (2013)


Legislation Cited


National Credit Act 34 of 2005


Rules of Court Cited


Uniform Rules of Court, Rule 31(2)(b)


Uniform Rules of Court, Rule 42


Uniform Rules of Court, Rule 4(1)(a)(i)


Held


The court held that the applicant did not establish good cause/sufficient cause for rescission. The applicant’s explanation for the default was found to be inadequate, including because the court accepted the sheriff’s return of personal service as effectively dispositive on the papers and because the applicant failed to provide a concrete factual basis to rebut it. The court also concluded that the respondent had satisfied the requirements of sections 129 and 130 of the National Credit Act on the facts presented, and that the applicant’s reliance on alleged non-receipt did not demonstrate that the judgment was erroneously granted.


The court further held that the applicant failed to demonstrate a bona fide defence with prospects of success. The reckless credit allegation did not, on the court’s approach and authorities cited, constitute a defence to the respondent’s cancellation-based claim for return of the leased vehicle, and the applicant’s dispute of the arrears was not substantiated with material facts. The preliminary objections regarding proof of credit provider registration and authority to depose were dismissed.


LEGAL PRINCIPLES


The judgment applied the principle that rescission under Rule 31(2)(b) (and the common-law notion of “sufficient cause”) requires a conjunctive showing of an acceptable explanation for the default and a bona fide defence with some prospect of success. Failure on either element is ordinarily fatal, and the explanation must be assessed in the context of the defence and overall circumstances, but an unsatisfactory explanation does not become satisfactory merely because prospects appear stronger.


It applied the principle that a sheriff’s return of service constitutes prima facie proof of service, and that a party seeking to displace it must put up a sufficiently substantial factual challenge on the papers; bare denials without engagement with the return’s particulars may fail to raise a genuine dispute necessitating oral evidence from the sheriff.


On the National Credit Act, the judgment applied the line of authority addressing section 129 notice requirements, treating proof that the notice was sent by registered mail to the consumer’s chosen address and reached the appropriate post office as ordinarily sufficient to infer compliant delivery for purposes of enforcement, and treating non-collection or non-personal receipt, on the facts, as not necessarily invalidating subsequent enforcement steps.


The judgment also applied the principle that certain asserted statutory irregularities (including alleged reckless credit in the specific taxi-finance context as discussed in the cited authority) may not constitute a bona fide defence to a claim for return of a leased vehicle following cancellation, and that a defendant must place material facts before the court to show prospects of success rather than rely on vague, reactive, or unparticularised allegations.

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[2013] ZAFSHC 95
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Mofuta v SA Taxi Securitisation (Pty) Ltd, In re: SA Taxi Securitisation (Pty) Ltd v Mofuta (2954/2011) [2013] ZAFSHC 95 (20 June 2013)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2954/2011
In the matter between:-
MOFUTA, SANKOELA
PETRUS
.................................................
Applicant
and
SA TAXI
SECURITISATION (PTY) LIMITED
..........................
Respondent
(Registration number:
2005/021852/07)
In re:
SA TAXI
SECURITISATION (PTY) LIMITED
.................................
Plaintiff
and
MOFUTA, SANKOELA
PETRUS
...............................................
Defendant
_____________________________________________________
HEARD ON:
25 APRIL 2013
_____________________________________________________
JUDGMENT BY:
RAMPAI, J
_____________________________________________________
DELIVERED ON:
20 JUNE 2013
_____________________________________________________
[1] The applicant seeks
to have a default judgment granted against him rescinded and a writ
issued pursuant to such judgment set
aside. The respondent opposes
the application.
[2] The parties concluded
a lease agreement on 19 May 2009. The object of the lease agreement
was a motor vehicle, a 2009 Toyota
Quantum (aka Sesfikile). The
vehicle was leased for the purpose of passenger transportation, in
other words, a taxi service. The
lease agreement was supposed to
endure for 60 months. The defendant paid an initial deposit of
R50 000,00. The monthly lease
instalment was R8 429, 60.
The first instalment fell due and payable on 1 July 2009.
[3] The applicant failed
to make regular payments in terms of the lease agreement. By 5 March
2010 he was R28 345,33 in arrears.
On that dat the parties met
and signed a variation agreement whereby the arrears were capitalised
and added to the original amount
of the lease. The lease period was
extended to 72 months; the monthly instalment marginally increased by
R248,02 to R8 677,62
and the rate of interest was fixed at 26,5%
per annum. See addendum to the original lease agreement.
[4] It would appear that
the subsequent variation of the lease did not have the desired
effect. Notwithstanding the extension of
the contract period, the
applicant again fell into arrears. The respondent then sued the
applicant. The summons was issued on 1
August 2011. The plaintiff
alleged that the defendant was in arrears and that on account of such
default it considered the lease
agreement cancelled.
[5] In due course the
respondent applied for default judgment essentially making the
elementary averments:
that the summons had
been duly served;
that the prescribed time
for entering an appearance to defend had lapsed; and
that the defendant had
failed to signal his intention to defend the action.
[6] On 21 September 2011
the registrar granted default judgment against the applicant as
requested. The applicant was ordered,
inter alia
, to restore
possession of the leased motor vehicle to the respondent. See
annexure “spm1”. On the same day the respondent
issued a
writ.
[7] The sheriff served
the writ and judicially attached the vehicle on 16 November 2011. Two
days later, on 18 November 2011, to
be precise, the sheriff
repossessed the vehicle and returned it to the respondent.
[8] On 21 December 2012
the applicant filed the current rescission application. In his
founding affidavit the applicant alleged
that he had no knowledge of
the action on which the writ was based, because the summons was never
served on him. Accordingly he
contended that the default judgment was
erroneously granted.
[9] On 29 January 2013
the respondent filed its answering affidavit. The respondent alleged:
that the applicant chose
a specific address as his
domicilium citandi et executandi
;
that the sheriff served
the summons at that address;
that before the lease
agreement was concluded, the plaintiff assessed the credit risk, in
accordance with the relevant credit
legislation;
that the requisite
notices in terms of section 129 read with 130 of the
National Credit
Act 34 of 2005
were sent by way of registered mail to the
applicant’s
domicilium citandi et executandi
.
Accordingly the
respondent contended that the application was not materially
defective and that it did not fall foul of the provisions
of the
credit statute as the applicant alleged.
[10] On 2 April 2013 the
applicant filed his replying affidavit. He denied
that the deponent of the
answering affidavit was authorised to depose to such an affidavit on
behalf of the respondent;
that the respondent
assessed his credit profile before the lease agreement was signed;
that the notice in terms
of
section 129
was sent to him and that he received it;
that such notice reached
his appropriate post office;
that the sheriff served
the summons on him.
[11] The matter was
argued before me on Thursday, 25 April 2013. At the beginning of the
live proceedings, the applicant raised
a preliminary point that the
respondent’s entire action was defective, because the plaintiff
had not attached to the summons
a certificate to show that it was a
registered credit provider. Instead of giving an
ex tempore
ruling on the point, I called upon the two counsels to argue the
point, together with the merits. At the end of it all I reserved

judgment. I deemed it expedient to start with the merits. I shall
revert to the point raised
in limine
afterwards.
[12] The principal issue
in the application is whether the applicant had knowledge of the
respondent’s summons before the
registrar granted default
judgment against him.
[13] The requirements for
rescission of judgment, though well-known, need to be recited here.
In the first place, the applicant
bears the onus of establishing
sufficient cause for his application to have the default judgment
rescinded. Whether the applicant
has successfully established
sufficient cause to warrant rescission of the default judgment under
attack depends on the outcome
of an inquiry with two legs.
[14] As regards the first
leg, the court has to determine whether the applicant has presented a
reasonable and acceptable explanation
for his apparent default. As
regards the second leg, the court has to determine whether the
defendant has shown the existence of
a
bona fide
defence, in
other words, a defence that has some probable prospect or probability
of success –
Chetty v Law Society, Transvaal
1985
(2) SA 756
(AD) at 765 A – C per Miller JA.
[15] The test is
conjunctive and not disjunctive. An explanation of the defendant’s
default must co-exist with evidence of
reasonable prospect(s) of
success on the merits –
Harris v Absa Bank Ltd t/a
Volkskas
2006 (4) SA 527
(T) at par [5] as regards the test.
[16] In
Chetty v
The Law Society
Miller JA said the following about the dual
nature of the test as to whether sufficient cause has been shown:
“
It
is not sufficient if only one of these requirements is met; for
obvious reasons a party showing no prospect of success on the
merits
will fail in an application for rescission of a default judgment
granted against him, no matter how reasonable and convincing
the
explanation of his default. And ordered judicial process would be
negated if, on the other hand, a party who could offer
no
explanation of his default other than his disdain of the Rules was
nevertheless permitted to have a judgment against him rescinded
on
the ground that he had a reasonable prospect of success on the
merits.”
[17] An application for
rescission of default judgment is governed by Rule 31(2)(b) of the
Uniform Rules of Court. The rules require
the defendant to establish
good cause for his default before a default judgment granted against
him earlier may be rescinded. The
phrase “good cause”
refers to the rescission test according to the statute law whereas
the phrase “sufficient
cause” is indicative of the
rescission test according to common law. Other than that the
substance of the two phrases is
in essence the same –
Harris
,
supra
, par [6].
[18] The nature of the
discretion a court has in rescission application was outlined as
follows in
Harris v Absa
,
supra
, at par [8] per
Moseneke J:
“
Before
an applicant in a rescission of judgment application can be said to
be in 'wilful default' he or she must bear knowledge
of the action
brought against him or her and of the steps required to avoid the
default. Such an applicant must deliberately, being
free to do so,
fail or omit to take the step which would avoid the default and must
appreciate the legal consequences of his or
her actions.”
[19] The first element of
the test of sufficient cause concerns an explanation for the
applicant’s default –
Harris
,
supra
,
par [10].
“
A steady
body of judicial authorities has held that a court seized with an
application for rescission of judgment should not, in determining

whether good or sufficient cause has been proven, look at the
adequacy or otherwise of the explanation of the default or failure
in
isolation.
'Instead, the explanation, be it good,
bad, or indifferent, must be considered in the light of the nature of
the defence, which
is an important consideration, and in the
light of all the facts and circumstances of the case as a whole.'
De Witts Auto Body Repairs (Pty)
Ltd v Fedgen Insurance Co Ltd (supra
) at 711D.”
[20] In his founding
affidavit the applicant stated as one of the reasons as to why he did
not give notice of his intention to defend
the action, that he did
not receive the respondent’s notice in terms of section 129
National Credit Act 34 of 2005
.
[21] In its answering
affidavit the respondent challenged the applicant’s allegation.
It answered that it sent the notice
in terms of
section 129
to the
applicant’s chosen
domicilium citandi et executandi
being 597 Meqheleng, Ficksburg –
vide
2 annexure “aa3”
– addendum to the credit agreement and the preamble to the
credit agreement (annexure “aa1”).
[22] In his replying
affidavit the applicant denied receiving the respondent’s
alleged letter, in other words, notice in terms
of
section 129.
He
pointed out that the track and trace report (annexure “spm2”)
issued by the South African Post Office (SAPO) indicated
that the
notice (annexure “aa6”) was delivered to someone unknown
to the applicant.
[23] Upon my perusal of
annexure “aa6”, it appeared to me that the respondent
addressed a letter of demand to the applicant
on 14 July 2011; that
the letter was headed “Notice in terms of
section 129
read with
130
National Credit Act 34 of 2005
”; that the letter was sent
by registered mail to the same address as given in annexure “aa3”
and that as on that
particular day the applicant’s account
appeared to be R41 882,29 in arrears.
[24] The certificate of
posting marked RT3697 (annexure “aa7”) showed that the
notice in terms of
section 129
(annexure “aa6”) was
posted to the applicant on 14 July 2011. Again the address was
identical to the applicant’s
chosen
domicilium citandi et
executandi
as set out in the credit agreement.
[25] The tracking line
report (annexure “aa8”) issued by the SAPO indicated
that:
On 18 July 2011 the
letter was in transit at Witspos;
On 19 July 2011 the
letter was in transit in Bloemfontein;
On 20 July 2011 the
letter was at Ficksburg;
On the same day the
first notification was sent to the addressee;
On 13 August 2011 the
letter was delivered to one N.D. Makhubo at Ficksburg branch of
SAPO.
[26] What clearly emerged
from the aforesaid reports (annexures “aa6”, “aa7”
and “aa8”) issued
by SAPO was, firstly, that the notice
in terms of
section 129
was mailed to the applicant’s correct
address; secondly, that the notice reached the applicant’s post
office; thirdly,
that SAPO sent out the usual notification for the
collection of the registered parcel (RD588 433 855 ZA), and
fourthly,
that a certain person by the name N.D. Makhubo collected
the registered article with that same code. What was unclear to me
was
the identity and the address of the addressee.
[27] Mr Olivier
contended, on behalf of the applicant, that since the delivery of the
registered item to the aforesaid Makhubo meant
either that the track
and trace code was incorrect or that the notice was delivered to the
wrong person. Counsel submitted that
in either case the applicant
would not have received the notice.
[28] It was undisputed
that the applicant did not collect the notice and that someone else
did. However, the contention that the
track and trace code was
incorrect, was untenable. The track and trace code on annexure “aa7”,
certificate of posting,
and on annexure “aa8”, tracking
line or final report, was exactly the same –
viz
RD
588 433 855 ZA. From that it could, therefore, be logically
deduced that N.D. Makhubo collected annexure “aa6”,
in
other words, the notice in terms of 129 whose final destination was
Ficksburg Post Office, being the appropriate branch of SAPO
nearest
to the applicant.
[29] It seemed to me
highly probable that Ficksburg Post Office correctly sent the
collection notification to the applicant’s
correct address and
that Makhubo collected the letter from the post office on behalf of
the applicant. It was unlikely, firstly,
that the post office could
have erroneously dispatched the collection notification to a wrong
address; secondly, it was unlikely
that the post office could have
again erroneously handed the letter to a complete stranger whose name
and address totally differed
from those on the registered letter, and
thirdly, it was unlikely that the said N.D. Makhubo would, just like
the post office counter
clerk, have mistakenly collected a registered
mail which had no connective bearing on him. The addressee’s
name on the collection
notification and the addressee’s name on
the registered mail would not have tallied at all. The same
discrepancy would have
applied to the addresses. Our society is
deemed to consist of reasonably diligent people. The clerk and the
collector, as members
of that society, would probably not have made
the same comedy of errors.
[30] I am of the firm
view that the applicant’s submission that the registrar of this
court, or even the court itself, had
no jurisdiction in this matter
seeing that the respondent has allegedly failed to comply with
section 129
, which required that he be given pre-summons notice of
his default. The facts was substantially compelling that the
applicant had
indeed received the requisite prior notice in terms of
section 129.
[31] I am persuaded by
counsel for the respondent that the respondent had duly satisfied the
requirements of
section 129
read with
section 130.
The respondent
posted the letter to the applicant on 14 July 2011 by prepaid
registered mail. The letter, which undeniably constituted
notice in
terms of
section 129
, was correctly mailed to the address
purposefully chosen by the applicant as his
domicilium citandi et
executandi
–
vide
annexure “aa6”. The
averments thereof had to be incorporated herein by connective
reference.
[32] The letter in
question reached the appropriate post office on 20 July 2011 for
collection by the applicant. Despite collection
notification to him,
the letter was not collected by the applicant personally, but by a
certain N.D. Makhubo who, most probably,
did so at the applicant’s
special instance and request. The respondent provided proof of
delivery of the letter to the appropriate
post office branch –
vide
annexure “aa8”.
[33] Notwithstanding such
constructive delivery per
traditio longa manu
the applicant
failed to respond to the respondent’s notice in terms of
section 129.
He failed to liquidate the arrears within 20 business
days from the actual date of default, being 14 July 2011. He
neglected to
avail himself to any accredited agency in order to have
the dispute resolved without recourse to litigation. His financial
inability
to service his vehicle account notwithstanding, he persists
with his demand that the respondent restore the vehicle to him.
[34] But even if I was
wrong in finding that the applicant probably received the notice in
terms of
section 129
through the aforesaid collector, whom I regarded
as his authorised agent, the applicant would still derive no
meaningful joy from
my wrong conclusion.
[35] In
Majola v
Nitro Securitisation 1 (Pty) Ltd
2012 (1) SA 226
(SCA) par
[19] the applicant alleged, as in this instant matter, that he had
not received the respondent’s notice in terms
of
section 129
,
claiming that such notice had been sent to the wrong address. Seeing
that the respondent had sent the requisite notice to his
expressly
chosen
domicilium citandi et executandi
it was of no moment in
law that he did not actually receive it. The court held that there
was proper service of the notice in terms
of
section 129.
The court
pertinently held that the fact that the applicant never received the
notice did not render the notice invalid and the
subsequent issue of
the summons abortive or premature.
[36] Two years prior to
the decision in
Majola
,
supra
, it was held that
it was not incumbent upon the credit provider to prove that the
credit consumer actually received the plaintiff’s
notice in
terms of
section 129
–
Rossouw and Another v Firstrand
Bank Ltd
2010 (6) SA 439
(SCA) paras [31] – [32].
[37]
The matter ultimately caught the attention of the highest court in
the land last year. In the subsequent decision of
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012 (5) SA 142
(CC) per Cameron J writing for the majority
ultimately put the whole debate to rest.
[38] The thrust of the
decision in
Sebola
may be condensed by saying that
proof that the credit consumer’s appropriate post office branch
received the notice ordinarily
tips the scale of probabilities in
favour of the credit provider that the notice reached the credit
consumer. Simply put, the credit
consumer is deemed to have received
the notice.
[39] In the matter of
SA
Taxi Development Finance (Pty) Limited v Mahlodi Rulph Phalafala
(2013) SGHC, Johannesburg 1512 (2013) van Eeden AJ reviewed
applicable caselaw. At par [8] the learned judge commented:
“
In
Mkhize’s
case, however, Olsen AJ found that there is non-compliance with the
statute where it was conclusively proved that the notice did
not
reach the consumer, e.g. because the notice was not collected from
the correct post office. In
Binneman’s
case, Griesel J came to the opposite conclusion in a matter where the
notice reached the correct post office, but was subsequently
returned
to sender. The court held that the credit provider had duly provided
notice as required by the majority decision in
Sebola’s
case. In
Binneman’s
case judgment by default was granted, whereas in
Mkhize’s
case the court adjourned and made an order in terms of
s 130(4)(b)(i)
and (ii) setting out the steps the credit provider must complete
before the matter may be resumed. Thus Olsen AJ refused to enforce

the credit agreements, whereas Griesel J enforced them.”
[40]
At
par [9] Van Eeden AJ further commented:
“
In both the
Mkhize
and
Binneman
matters the consumer clearly did not receive the notice prior to
summons. It is the same in this matter. But even if actual receipt
of
the notice is an absolute requirement, it has been satisfied in this
matter, since the required notice was attached to the summons,
which
was served on the defendant. What remains in issue is what to do with
the fact that the credit provider commenced legal proceedings
to
enforce the credit agreement before
first
providing the notice to the consumer.”
[41] In the instant
matter, unlike in the cases of
Phalafala
,
supra
,
Binneman
,
supra
, and
Mkhize
,
supra
, it could not be
factually contended, with conviction, that the credit consumer did
not receive the requisite default notice prior
to the issue of the
summons. The mere fact that actual delivery of the notice was not
effected upon the credit consumer personally
was not, on the peculiar
facts of this particular matter,
per se
an irrefutable indication that the credit consumer never
received the requisite notice.
[42] Nowadays certain
practical exigencies frequently dictate that we rely on others to run
our personal affairs. Collecting registered
mail from post office is
a classic example of instances where very busy individuals, such as
doctors in big hospitals, pilots of
global airliners and captains of
international ocean liners, such as MSC Opera and taxi drivers in big
cities, greatly depend on
others to collect registered articles on
their behalf from their appropriate post office branches.
[43] An English judge
once eloquently reminded us about the realities of life. He says:
“’
The
law does not demand that you should act upon certainties alone. . . .
In our lives, in our acts, in our thoughts we do
not deal with
certainties; we ought to act upon just and reasonable convictions
founded upon just and reasonable grounds. . . .
The law asks for no
more and the law demands no less.'”
Lord Coleridge in
R
v Dickman
quoted in
R v Reddy
1996 (2) SACR 1
(AD) at 9d – e per Zulman AJA.
I am in respectful
agreement. The crux of the matter is that non-receipt of the notice
prior to the service of the summons does
not invalidate the issue of
the summons
ab initio
–
Phalafala
,
supra
.
[44] The first leg of the
applicant’s explanation of default was that he did not actually
receive the requisite default notice.
Since that was factually the
case, so he contended, the statutory requirement of
section 129
National Credit Act 34 of 2005
were not legally complied with. He
accordingly submitted that default judgment was granted in error
against him. There was no substance
in that argument, in my view.
Consequently I am inclined to reject the first leg of the applicant’s
explanation of default.
[45] In a case where it
was factually proven that the credit consumer never received the
requisite notice, it was held that the
mere fact that the defendant
did not receive the notice prior to the service of the summons, does
not render the issue of the summons
premature –
Majola
,
supra
, at par [19] and
Phalafala
,
supra
,
at par [12]. In the instant matter, the probabilities strongly tended
to suggest that the applicant received the requisite notice.

Accordingly I find that the applicant was duly forewarned about the
action the respondent was contemplating to institute against
him.
Since there were strong and probable indications that the applicant
actually received the requisite notice and in view of
the fact that
the time periods as envisaged in
section 130(1)(a)
have already
passed or lapsed, it would serve no useful practical purpose to
adjourn the matter or to make orders in terms of
section 130(4)(b).
In any event such remedies of the statute were intended for
situations different from the one in the current matter.
[46] Now I turn to
consider the second leg of the applicant’s explanation that he
did not file notice of intention to defend
the action, because he had
no knowledge of the plaintiff’s action against him. He
contended that it was his serious intention
to defend the action. He
asserted that he would certainly have delivered the notice to that
effect had he received the summons.
[47] In response to the
applicant’s exculpatory explanation, the respondent answered
that the applicant’s explanation
was untrue. It was contended
on behalf of the respondent that the summons was properly served at
the applicant’s
domicilium citandi et
executandi
and that it was served on
the applicant personally. Therefore, it was submitted that the
applicant had knowledge of the action.
[48] The applicant
resided at 597 Meqheleng, Ficksburg at all times material to the
dispute. The respondent filed the sheriff’s
return. The sheriff
reported that:
“
On this 3
rd
day of August 2011 at 12:50 I served this COMBINED SUMMONS AND
PARTICULARS OF CLAIM WITH ANNEXURES HERETO upon MOFUTA SANKOELA

PETRUS, Defendant, personally at 597 MEQHELENG FICKSBURG by handing
to the abovementioned a copy thereof after exhibiting the original

and explaining the nature and exigency of the said process.
Rule4(i)(a)(i).”
[49] At the heart of the
contest was the question whether, at the time default judgment was
granted, the applicant knew that the
plaintiff had instituted action
against him.
[50] Mr Olivier submitted
that the applicant did not have such knowledge. Accordingly counsel
urged me to rescind the default judgment
and granted against him. He
submitted that the mere fact the sheriff stated that he served the
summons and the declaration together
with the annexures thereto upon
the applicant personally, did not in itself render the service of the
summons incontestable.
[51] Mr Mollentze
submitted that the applicant did have full knowledge of the
respondent’s action. He argued that the applicant
had failed to
present a reasonable and acceptable explanation for his default; that
the summons was served on him personally; that
the summons did come
to his personal attention and that he knew the consequence of his
failure to defend the action.
[52] It was common cause
that the full names and the physical address as stated in the
sheriff’s return (annexure “aa9”)
accurately
tallied with the applicant’s correct names and his correct
residential address. Besides his bald statement that
he never
received the respondent’s summons, the applicant made no
meaningful attempt to challenge the substantive essence
of the
sheriff’s return. The applicant did not venture to say where he
was on 3 August 2011 at 12:50 when the sheriff was
at his place of
residence. His founding affidavit was a seven page document with
fifteen paragraphs. Of those paragraphs, he devoted
only two of them
to deal with the sheriff’s return.
[53] At paragraph 5
founding affidavit the applicant stated:
“
On 01 August
2011 the Respondent issued summons under case number 2954/2011.
I
pause to state that I never received a copy of the summons
nor any of the court processes consequent upon which the judgment was
taken and the summons was never served upon me. The first
indication
I had that judgment had been entered against me was when the vehicle
which forms the subject matter of this application
being a 2009
Toyota Sesfikile with engine number
2TR8193474
and chassis number
JTFSX22P706061571
(“
the
vehicle
”)
was repossessed by the Sheriff on 18 November 2012. A copy of the
warrant is attached hereto marked “
SPM1”
.”
[54] At paragraph 6
founding affidavit the applicant stated:
“
I
reiterate that I did not receive a copy of the summons in this matter
and I have had to attend in the Free State High Court to access the
file for the purposes of annexing the summons to this application.

Had I received a copy of the summons I would have filed an appearance
to defend and a plea which would have set out a defence to
the
Respondent’s claim. As no summons was served, the Court entered
judgement under the incorrect notion that I had received
the summons
and that I had wilfully no entered an appearance to defend, this is
not the case and the judgement was wrongfully sought,
alternatively
wrongfully granted, and accordingly falls to be set aside in terms of
rule 42.
”
[55] The high watermark
of the defendant’s explanation was:
“
I pause to
state that I never received a copy of the summons nor any of the
court processes consequent upon which the judgment was
taken and the
summons...”
Vide
par 5 of
founding affidavit.
Again he stressed the
same allegation by saying:
“
I reiterate
that I did not receive a copy of the summons in this matter…”
Vide
par
6 founding affidavit.
[56] Both paragraphs were
factually very thin. The applicant was not candid with the court.
Precisely where he was at the critical
time and crucial date,
mentioned in the sheriff’s return, does not appear in those two
paragraphs or anywhere else in his
founding affidavit as a whole.
Moreover, he said nothing about other inmate(s) of the house, if any,
and their possible whereabouts
at the relevant time and date. Could
N.D. Makhubo have been one of them? Seemingly the applicant
personally made no effort and
seemingly none was made on his behalf
to confront the sheriff about the alleged false return with its
adverse impact on his fundamental
rights to have the dispute resolved
by court of law.
[57] The writ was issued
on 21 September 2011. The founding affidavit was signed at Bramley on
18 September 2012. It follows from
this two dates that the vehicle
must have been judicially attached and removed before the founding
affidavit was made. Upon careful
examination of the major historical
events of the matter, everything seemed to indicate that the writ was
executed on 18 November
2011 and not 18 November 2012, as stated in
paragraph 5 of the founding affidavit. The current rescission
application was motioned
on 21 December 2012, some 13 long calendar
months after the applicant had become aware of the default judgment
now under attack.
There is no examination whatsoever as to why this
rescission application was not launched as soon as practically
possible after
the unwelcome repossession of the vehicle on 18
November 2011. Moreover, there was no application to have such
lateness condoned.
[58] The applicant’s
founding affidavit was riddled, not only with deep gaps and rents
through which the applicant could not
safely pass, but it was also
materially blemished by substantial vagueness which irredeemably
plagued his explanation. All those
acts of omissions were outward
manifestations of lack of serious intent to defend the action.
[59] Mr Olivier’s
submission was correct. Indeed the mere fact that the sheriff stated
that he served the summons upon the
applicant personally, was not
conclusive proof of that he did. It does not irrefutably render the
issue of service incontestable.
In any given matter a return of
service by the sheriff is merely a
prima facie
proof of the
assertions embodied therein. Such assertions may be challenged and
rebutted in certain circumstances. If and when
a defendant joins an
issue with the plaintiff as regards service of a summons, the sheriff
concerned might have to be called to
testify regarding the
correctness of his return –
Greeff v Firstrand Bank
Limited
2012 (3) SA 157
(NCR). In my view that can only
become imperative where, on the papers as a whole, a reasonable doubt
is created as regards the
veracity of the sheriff’s return. A
sheriff is an officer of the court whose return must generally be
relied upon. Unless
a reasonably sound and persuasive challenge and
not flimsy insinuations, is made against his return, his return has
to stand as
correct and accepted by the courts.
[60] In his founding
affidavit the applicant barely stated that he did not receive the
summons –
vide
paragraph 5. In his replying affidavit
the applicant barely denied that the summons was served on him –
vide
paragraph 13. I am not persuaded at all that such
fleshless and dry bones boiled down to a reasonably solid challenge
which, on
a balance of probabilities, refuted the
prima facie
proof that the sheriff duly served the summons on the applicant
personally at his place of abode on 3 August 2011. This was one

important factor against the applicant’s case.
[61] The other important
factor which materially militated against the applicant’s
explanation, was that the respondent caused
the summons to be served
at the address specifically chosen by the applicant for that
particular purpose. Since the sheriff served
the summons at the
specific address in accordance with clause 11 of the credit agreement
(annexure “aa2”) read with
the formal heading of the
contract on page 1 where the personal details of the lessee were
fully described, the applicant was contractually
barred from relying
on non-receipt of any notice delivered to his
domicilium
.
[62] The applicant agreed
that if such notice was delivered by hand, he shall be deemed to have
received it on the day of the delivery.
The applicant expressly chose
the given address as his
domicilium
for all purposes of
communication. It follows, without saying - therefore, that all the
respondent had to do in order to prove
that the applicant received
the summons, was to show that the summons was correctly served at the
address specifically chosen by
the applicant himself. It was
undisputed that the sheriff did precisely just that.
[63] To rebut the
prima
facie
proof that he received the summons, the applicant had three
options only, firstly, that he did not choose the address where the

sheriff served the summons as his chosen
domicilium
, or
secondly, that although he had chosen a specific address as his
domicilium
the summons was served at a wrong address as in
Greef’s
case,
supra
, or thirdly, that
although he had originally chosen the address where the summons was
served, he had subsequently changed it by
giving the respondent
written notice to that effect. Needless to say, that the applicant
raised none of those grounds in support
of his bold statement that he
did not receive the summons. There was no real factual dispute, in my
view, created by the applicant’s
hopelessly hollow challenge to
warrant the giving of oral evidence by the sheriff in this matter.
The sheriff
prima facie
prove that he effected the service of
the summons on the applicant personally now has to be endorsed as
conclusive proof that the
defendant actually received the summons.
That, in my view, is now an accomplished fact.
[64] Accordingly I find
that the summons did come to the attention of the applicant at his
residence on 3 August 2011 some 35 calendar
days before default
judgment was granted. That been the case it must be accepted that the
applicant was indeed in wilful default.
There was no doubt on my mind
that the applicant knew and fully appreciated the adverse legal
consequences of his acts of remissness.
I chose to use the phrase “in
wilful default” within the context ascribed to it in
Harris
,
supra
, at par [8] where Moseneke J said:
“
Before an
applicant in a rescission of judgment application can be said to be
in 'wilful default' he or she must bear knowledge
of the action
brought against him or her and of the steps required to avoid the
default. Such an applicant must deliberately, being
free to do so,
fail or omit to take the step which would avoid the default and must
appreciate the legal consequences of his or
her actions.”
[65] The applicant’s
contention that default judgment had been granted in error, had to be
rejected. That point was without
merit. Therefore, the second leg of
the applicant’s explanation also failed to impress me.
[66] It was incumbent
upon the applicant to show that sufficient cause existed to justify
the setting aside of the default judgment.
I have considered the two
legs of his explanation for the default which precipitated the grant
of default judgment against him.
I found each one of them
substantially wanting. It follows, therefore, that the applicant has
presented no reasonably acceptable
explanation for his default.
Accordingly the first element of the test of sufficient cause remains
unsatisfied.
[67] It does not
automatically follow that because the first element was not satisfied
by the applicant, therefore the rescission
application has to fail.
In
Harris
,
supra
, Moseneke J stressed that the
applicant’s explanation must not be considered in isolation,
but rather in the light of the
nature of the applicant’s
defence, the facts and the circumstances of the case as a whole. To
the defence of the applicant
I now turn.
[68] As regards the
second element of the test of sufficient cause it was incumbent upon
the applicant to show that there exists
in his favour a
bona fide
defence that is one that has some prospect or probability of success.
[69] In
Chetty
,
supra
, at 768A – C Miller JA said:
“
As
I have pointed out, however, the circumstance that there may be
reasonable or even good prospects of success on the merits
would
satisfy only one of the essential requirements for rescission of a
default judgment. It may be that in certain circumstances,
when the
question of the sufficiency or otherwise of a defendant's explanation
for his being in default is finely balanced, the
circumstance that
his proposed defence carries reasonable or good prospects of success
on the merits might tip the scale in
his favour in the application
for rescission. (Cf
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A)
at
532.) But this is not to say that the stronger the prospects of
success the more indulgently will the Court regard the explanation
of
the default. An unsatisfactory and unacceptable explanation remains
so, whatever the prospects of success on the merits. In
the light of
the finding that appellant's explanation is unsatisfactory and
unacceptable it is therefore, strictly speaking, unnecessary
to make
findings or to consider the arguments relating to the appellant's
prospects of success. Nevertheless, in the interests
of fairness to
the appellant, it is desirable to refer to certain aspects thereof.”
[70]
I subscribe to this aforesaid view. An acceptable explanation of
default must co-exist with reasonable prospect of success
on the
merits –
Harris
,
supra
,
paras [4] – [6].
[71] The respondent’s
cause of action was premised on the averment that the applicant had
defaulted in the payment of the
agreed monthly instalments due to the
respondent in terms of the lease agreement. As a consequence of such
default the respondent
cancelled the lease agreement and claimed the
return of the vehicle, which formed the subject matter thereof.
[72]
The applicant asserted that he had a
bona
fide
defence.
The essence of his defence was founded on the averment that the
respondent bent the rules and violated the provisions of
the statute
and thereby unduly influenced and pressured the applicant. Ultimately
the respondent, so claimed the applicant, entered
into a reckless
credit agreement with him. In doing so the respondent acted in
contravention of
section 80
of the
National Credit Act 34 of 2005
.
That, in brief, was the heart of the applicant’s defence.
[73]
The respondent denied the allegation that it granted reckless credit
to the applicant. In any event, even if the credit granted
by the
respondent to the applicant amounted to the giving of reckless
credit, that in itself would not have constituted a
bona
fide
defence
to the respondent’s action for an order for the return of the
leased vehicle -
SA TAXI
SECURITISATION (PTY) LTD v MBATHA AND TWO SIMILAR CASES
2011 (1) SA 310
(GSJ).
[74] At paragraph 7
founding affidavit the applicant stated:
“
I dispute
the amount claimed as arrears.”
In that statement the
applicant implicitly admitted that he was in arrears. The only aspect
he denied was obviously the quantum
of the arrears. On the one hand,
the respondent explicitly stated the amount of the arrears. On the
other hand, the applicant,
notwithstanding his denial of the amount
of the arrears as averred by the respondent, evaded the issue.
Although he admitted the
arrears and disputed the quantum claimed by
the respondent, he did not specify the exact amount which was in
arrears according
to him. Moreover, he did not pertinently deny that
he was in breach of the agreement, but merely and timidly denied the
accuracy
of the amount of the arrears.
[75] The applicant was
barred, at any rate, from disputing the balance as stated in the
certificate of balance, which served as
a
prima facie
proof of
his indebtedness to the respondent. Since he failed to rebut the
correctness of the outstanding balance, as well as the
arrears, the
prima facie
proof of both the arrears and the balance became
conclusive proof.
[76] I pause to remark
that in his founding affidavit the applicant did not succinctly
disclose any defence on the merits. If the
applicant was already over
indebted at the time the respondent gave him reckless credit, I found
it strange that he never came
to court at the earliest possible
moment for an appropriate relief. He took no proactive steps at all
to be freed from the burdensome
shackles of the reckless credit
advanced to him against his will. He did not volunteer to surrender
the minibus, which was obviously
the primary cause of his alleged
over-indebtedness. Instead he signed the subsequent variation
agreement at the time when the shoe
was already pinching. He did not
then and there complain about the reckless credit. He, for the very
first time, complained about
the reckless credit after the leased
vehicle had been repossessed. The fact that he was reactive and not
proactive substantially
watered down the
bona fides
of his
already dubious defence. The applicant cannot eat his cake and still
have it.
[77] I was astonished to
read, at paragraph 7 of the founding affidavit, that the applicant
had been advised that the merits of
his defence were not relevant and
that he should only disclose the nature of his defence in these
proceedings. The respondent correctly
denied the allegation that the
merits were not relevant at this juncture. The applicant’s
statement, located as it were in
the founding affidavit, strengthened
the respondent’s case. It showed that the applicant never had
and still has no defence
on the substantive merits of the matter. It
appeared that, on account of the advice, the applicant did not fully
aver material
facts that could have bolstered the prospects of
enhancing the success of his application for rescission of the
default judgment.
[78] Accordingly, I am
persuaded that the applicant has also failed to demonstrate the
existence of a
bona fide
defence, that is to say, a defence
that has some prospects or probability of success on the substantive
merits.
[79] In
Chetty
,
supra
, at 765D – E Miller JA said the following about
the two elementary requirements of common law – the test of
sufficient
cause:
“
It is not
sufficient if only one of these two requirements is met; for obvious
reasons a party showing no prospect of success on
the merits
will fail in an application for rescission of a default judgment
against him, no matter how reasonable and convincing
the explanation
of his default. And ordered judicial process would be negated if, on
the other hand, a party who could offer no
explanation of his default
other than his disdain of the Rules was nevertheless permitted to
have a judgment against him rescinded
on the ground that he had
reasonable prospects of success on the merits.”
That remains the test.
The applicant failed both elementary requisites of that test.
[80] There were two
point(s) raised
in limine
by the applicant. The first was that
the respondent had not shown, by means of an official certificate,
that it was a registered
credit provider. The second was that the
respondent’s deponent had not shown, by means of a resolution,
that he was authorised
to make the answering affidavit on behalf of
the respondent in order to oppose the rescission application. I have
considered both
objections. In my view, none of them was well taken.
I would, therefore, dismiss each of them. The applicant was clearly
clutching
on the straws.
[81] I found nothing in
the applicant’s defence to compensate for the deficiencies of
his explanation. Therefore, the applicant
has failed to prove the two
critical elements of the test of good cause to justify the granting
of the rescission application.
[82] In the result:
82.1 The applicant’s
application is dismissed.
82.2 The applicant is
directed to pay the costs.
82.3 The default judgment
and the writ stand.
______________
M.H. RAMPAI, J
On
behalf of applicant: Adv J.L. Olivier
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
and
Larry
Marks Attorneys
JOHANNESBURG
On behalf of respondent:
Adv J.H. Mollentze
Instructed
by:
Bezuidenhout
Attorneys
BLOEMFONTEIN
and
Marie-Lou Bester Inc
JOHANNESBURG
/spieterse

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