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[2013] ZAFSHC 161
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Nelwamondo v Nedbank Ltd (2296/2010) [2013] ZAFSHC 161 (5 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2296/2010
In the matter between:
KHOROMMBI CUTHWELL
NELWAMONDO
...............................
Applicant
and
NEDBANK LIMITED
.................................................................
Respondent
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
HEARD ON:
22 AUGUST 2013
_______________________________________________________
DELIVERED ON:
5 SEPTEMBER 2013
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] On the 5
th
October 2010 the respondent secured judgment by default against the
applicant, as surety and co-principal debtor together with
two other
defendants, for payment of R187 607,25 together with interest
after providing the applicant with copies of,
inter alia
, Deed
of Suretyship on the 28
th
January 2010 and issuing summons
against them on the 10
th
May 2010.
[2] On the 10
th
February 2011the respondent’s erstwhile attorney had a
telephone conversation with the applicant and consulted with him on
the 15
th
February 2011. On the 21
st
and 23
rd
February 2011 the applicant sent electronic mails to the respondent’s
said attorney furnishing,
inter alia
, his payslip, bank
statements, estimated monthly expenses and, further, requested the
name of an attorney who could help him with
debt review.
[3] The applicant feels
aggrieved by the default judgment and, on the 27
th
March
2012, requested the respondent to consent to late application for
rescission of the same to which the respondent responded
negatively
on the 28
th
March 2012. He, thereafter, filed a motion on
the 4
th
July 2012 for an order:
“
(
a)
That any non-compliance with the rules of the Honourable Court be
condoned
;
(b) That the Judgment granted by
Default against the Applicant on 5 October 2010 be rescinded;
(c) That leave be granted to the
Applicant to defend the matter;
(d) That the Respondent be ordered
to pay the costs of this Application only in the event of it being
opposed;
(e) Further or alternative relief.”
ISSUES IN DISPUTE
[4] The parties are,
ante
omnia
, in dispute over whether or not the applicant has shown
good cause for condonation of the late application for rescission of
judgment
entered in default of appearance to defend with specific
reference to the delay involved and prospects of success in the
rescission
application.
[5] In the event of the
aforegoing question being decided in the affirmative, then and only
in that eventuality the parties are
at variance on whether or not
good cause exists for rescission of the default judgment.
CONTENTIONS FOR THE
APPLICANT
[6] The applicant avers
that he became aware of the default judgment on the 10
th
February 2011 and attributes the delay in launching the application
for rescission to ignorance of the law on his part in that
he
believed that the respondent’s erstwhile attorney would
mero
motu
reverse the judgment after he had advised him that he never
signed the alleged suretyship agreement as well as the fact that he
needed to gather some information for the purposes of the relevant
application. It is, further, the applicant’s case that
his
signature on the Deed of Suretyship was forged and that the alleged
goods were, in fact, never delivered to the company for
which he
allegedly stood surety.
CONTENTIONS FOR THE
RESPONDENT
[7] It is contended for
the respondent that there exists no good cause for condonation of the
inordinate delay involved because
no satisfactory and acceptable
explanation for the same has been advanced and the applicant,
further, does not have a
bona fide
defence to the respondent’s
claim as he clearly signed as surety and co-principal debtor and the
relevant goods were clearly
delivered.
APPLICABLE LEGAL
PRINCIPLES
[8] The parties are
effectively in agreement that the applicant approaches this court for
rescission in terms of rule 31(2)(b) of
the Uniform Rules of Court
(“the rules”). It is, however, clear that such a vehicle
is not available in the instant
matter because judgment was entered
in terms of rule 31(5)(b)(i) of the rules insofar as the claim was
for a debt or liquidated
demand as opposed to a claim contemplated by
rule 31(2)(a) of the rules. (See
Ramolibe & Another v Nusun
Development (Pty) Ltd and Another
[2012] ZAFSHC 102.)
[9] The applicant does
not seek reconsideration as contemplated by rule 31(5)(d) and, in my
view, effectively invokes the common
law for rescission in so far as
he does not seek to persuade the court that the Registrar erred in
granting the impugned judgment
but contends that good cause exists
for rescission. (See
Bloemfontein Board Nominees Ltd v Benbrook
1996 (1) SA 631
(FS) at 633H.)
[10] Under the common law
the applicant for rescission is not necessarily constrained to launch
the same within 20 days of acquiring
knowledge of the default
judgment. Such an applicant has to approach the court within a
reasonable time after becoming aware of
the impugned judgment. (See
Ramolibe and Another v Nusun Development (Pty) Ltd and Another
supra
at para [31].)
[11] In an application
for condonation the applicant must show good cause for condonation
by,
inter alia
, giving a satisfactory or reasonable
explanation for the delay involved and by showing that he has good or
reasonable prospects
of success in the rescission application in so
far as good cause depends on the circumstances of each case. (See
Melane v Santam Insurance Company Ltd
1962 (4) SA 531
(A) and
Shawzin v Laufer
1968 (4) SA 657
(A) at 663B.)
[12] In an application
for rescission of judgment under the common law the applicant is
required to give a reasonable explanation
for the default, to show
that his application is made
bona fide
and, further, to show
that he has a
bona fide
defence to the plaintiff’s claim
which
prima facie
has some prospect of success. (See
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) at para [11].)
APPLICATION OF THE
LAW AND FINDINGS
[13] It is not the
applicant’s case that the respondent’s erstwhile attorney
undertook to rescind the judgment in question
or assured him not to
stress himself over it. It is, further, not contended for the
applicant that the respondent promised to abandon
the judgment in
question in the light of the explanation given by the applicant. The
applicant was obliged to bring the rescission
application without
undue delay and his laxity appears to have persisted for more than
three months after the respondent had refused
to consent to
rescission. The only explanation offered for the latter delay is a
terse statement to the effect that it took the
applicant more than
three months to gather the necessary information for the application.
As Mr Rautenbach correctly points out
for the respondent, details of
such information are not apparent
ex facie
the application. I
am not persuaded that the inordinate delay of more than 17 months, as
calculated from the date on which the
applicant became aware of the
judgment, has been adequately and satisfactory explained.
[14] The aforegoing is,
however, not the end of the enquiry. It is trite that the importance
of the issue involved and strong prospects
of success in the
rescission application may compensate for a long delay. I am
convinced, on the papers before me, that the applicant
enjoys some
prospects of success in the rescission application regard being had
to the fact that he does not have to prove his
defence and only has
to show that his defence is not patently unfounded and that it is
based upon facts, set out in outlines, which,
if proved, would
constitute a defence. (See
Du Plooy v Anwes Motors (Edms) Bpk
1983 (4) SA 213
(O) at 217H.)
[15] This state of
affairs prevails in spite of,
inter alia
, the fact that the
applicant furnished his salary advice and bank statements among
others to the respondent’s erstwhile attorney
in circumstances
where it was clear that the respondent was holding him liable to it
as surety and co-principal debtor. This conduct,
on the part of the
applicant,
prima facie
casts doubt on his
bona fides
when he contends that he did not sign as surety and, further, that
the goods forming the basis of the suretyship were not delivered.
A
closer look at the interaction between the applicant and the said
attorney reveals that he, in fact, disputed delivery of the
goods in
question to the extent that arrangements were made for an assessor to
conduct an inspection on the premises. It is, further,
clear from the
documents before me that the applicant never made an offer to settle
the judgment debt but, in fact, sought assistance
from the attorney
in question with regard to identification of an attorney to assist
him with debt review.
[16] The dispute between
the parties relating to delivery of the goods in question and the
applicant’s signature on the deed
of suretyship falls to be
determined by the trial court in so far as they constitute triable
issues. It is not for me, sitting
as I am, to try such issues in
order to determine where the truth lies.
[17] In the light of
reasonable prospects of success in the rescission application
condonation is, in my view, indicated. I am,
further, persuaded that
the default has been satisfactorily explained regard being had to the
applicant’s deposition to the
effect that in June 2010 the
company Rubnick Oil (Pty) Ltd, the first defendant in the action, was
no longer trading and he was
no longer reporting for work. The
explanation is, in my judgment, acceptable and adequate for, if that
was not the case, the sheriff
would not have affixed copy of the
summons to the principal door of that business at 09H15. He would
have, most probably, affected
service on any responsible person in
attendance, if there was any.
[18] In the light of the
excessive delay involved in applying for rescission herein, I am of
the view that it is proper and fair
in the circumstances of the
instant matter to express the court’s disapproval of dilatory
conduct on the part of the applicant
by way of costs.
ORDER
[19] Condonation of the
late application for rescission of default judgment is granted.
[20] The default judgment
entered against the applicant on 5 October 2010, as the second
defendant under the above case number,
is hereby rescinded and leave
is granted to him to generally defend the action by,
inter alia
,
entering appearance to defend within 10 days after receipt hereof.
[21] The applicant shall
pay the respondent’s costs.
______________
L. J. LEKALE, J
On behalf of applicant:
Adv. D. R. Thompson
Instructed by:
Rampai Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. J. S. Rautenbach
Instructed by:
Honey Attorneys
BLOEMFONTEIN
/eb