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[2012] ZAGPPHC 96
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Wannenburg v Standard Bank of South Africa Ltd (24032/10) [2012] ZAGPPHC 96 (7 June 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF THE REPUBLIC OF SOUTH AFRICA
NORTH
GAUTENG, PRETORIA
Case
number: 24032/10
Date:07/06/2012
In
the matter of:
WESSEL
WANNENBURG
…........................................................................................
Applicant
vs
THE
STANDARD BANKOF SOUTH AFRICA
LTD
...................................................
Respondent
JUDGMENT
BAM
AJ
1.
Summons was issued against the applicant on 26 April 2010. On 3 May
2010 service was affected by the Sheriff by affixing a copy
of the
summons to the main entrance at the applicant's domicilium citondi et
executandi. On 6 July 2010 default judgment was granted
by this Court
against the applicant in favor of the respondent for the return of a
motor vehicle. The vehicle was attached by the
Sheriff, and is
currently, apparently since 7 April 2011, in possession of the
respondent. The applicant now applies for rescission
of the said
judgment. The application is opposed by the respondent.
2.
To be successful in an application for the rescission of a judgment
the applicant has to furnish a reasonable explanation for
his
default. The default should not be due to willfulness or gross
negligence of the applicant, the application must be bona fide.
It
must further be shown that the applicant has a bona fide and prima
facie defense to the plaintiffs claim.
3.
The summons in this matter was served at the applicant's domicillium
address. It is however averred by the applicant that he
only became
aware of the judgment when he was notified by the Sheriff two days
prior to the attachment of the vehicle. According
to the applicant he
was under debt review at that stage, since January 2010, and that his
attorney communicated that to an employee
of the respondent. An
arrangement was allegedly made according to which the applicant had
to forward proof of his debt review to
the respondent to affect the
release of the vehicle. Nothing happened on-towards. The applicant
averred that this situation delayed
the application for the
rescission of the judgment.
This
averment is vague. It is not explained by the applicant how precisely
the said situation affected the lodging of this application.
The
applicant's further explanation that he contacted his debt counselor
and that the debt counselor in turn contacted the applicant's
attorney, is likewise vague. The applicant does not explain what
documents had to be requested from the respondent's attorneys.
4.
After having perused the documents regarding the default judgment, I
requested counsel for the applicant, Ms Myburgh, and counsel
for the
respondent, Mr de Beer, to address what appeared to have been an
irregularity in those proceedings. It appeared that the
notice in
terms of section 86 (of the National Credit Act), was incorrectly and
irregularly sent to the applicant. Counsel assured
me that the
correct procedure was indeed followed. This assurance by counsel laid
the problem to rest.
5.
The applicant's defense is technical by nature. He averred that he
was under debt review at the time the default judgment was
granted.
The applicant's application for debt review was allegedly submitted
to the respondent on 9 February 2010. Subsequently,
according to the
applicant, a court application was prepared by his former attorneys.
The matter was attended to by a Mr Zimmerman.
Apparently the
application was not properly attended to until the 5th April 2011,
when the applicant's present attorneys filed
an application for debt
review at the Magistrate's office, Benoni. It remained unexplained by
the applicant what was done by him
pertaining to the debt review
during the time span of more than one year.
6.
On 19 January 2010, the respondent terminated the initial debt review
process in terms of section 86(10) of the NCA. This notice
was sent
by registered post to the same address where the summons was served
on the applicant, namely 12 Deo Villa, Viljoen Street,
Secunda. The
applicant did not dispute that he had received the said notice. It
therefore seems strange that the applicant did
not receive the
summons that was affixed by the Sheriff to the main door of his
residence on 3 May 2010.
7.The
applicant's defense based on the alleged debt review is, in my
opinion, not convincing at all and does not seem to be bona
fide.
8.
Accordingly the application is dismissed with costs.
A
J Bam
Acting
Judge 5 June 2012