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[2012] ZAGPPHC 108
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Nkomo and Another v Firstrand Bank Ltd and Others (61704/2011) [2012] ZAGPPHC 108 (13 June 2012)
NOT
REPORTABLE
THE
NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No.: 61704/2011\
DATE:13/06/2012
In
the matter between:
NKOMO,
KHIWA
MORGAN
...................................................................................
1st Applicant
NKOMO,
NTSELE
JUNIA
......................................................................................
2nd
Applicant
and
FIRSTRAND
BANK
LIMITED
............................................................................
1st Respondent
F.S
VAN DER
WESTHUIZEN
............................................................................
2nd
Respondent
M.P
VAN DER
WESTHUIZEN
..........................................................................
3rd Respondent
THE
SHERIFF,
KRUGERSDORP
.......................................................................
4th
Respondent
REGISTRAR
OF DEEDS,
PRETORIA
...............................................................
5th
Respondent
JUDGMENT
MNGQIBISA-THUSI
J
[1]
This is an application in which the applicants are seeking the
following orders:
1.1
that the default judgment granted against the applicants on 12 March
2010 be rescinded;
1.2
that the warrant of execution and the subsequent sale in execution of
the applicants' immovable property be set aside.
[2]
On or about 17 September 2007, the respondent approved the
applicants' home loan application for the amount of R 700 000 secured
by a mortgage bond over the immovable property situated at Portion 86
(a Portion of Portion 3) of the farm Paardeplaats No 177,
I.Q,
Krugersdorp ("the property").
[3]
During May 2009 the applicants defaulted on their repayments and fell
into arrears. As a result of the applicants' default and
after
compliance with the provisions of
section 129(1)(a)
of the
National
Credit Act 34 of 2005
, on 23 October 2009 the first respondent issued
summons against the applicants claiming the following:
3.1
payment of the sum of R712 658.54;
3.2
Interest at the rate of 9.55% per annum as from 20 June 2009 to date
of payment, both days inclusive, as contemplated in the
said mortgage
bond;
3.3
An order declaring:-
PORTION
86 (PORTION OF PORTION 3) OF THE FARM PAARDEPLAATS NO 177,
REGISTRATION DIVISION: IQ IN EXTENT 1, 0706 HECTARES held by
DEED OF
TRANSFER: T156933/2007, executable.
[4]
The
section 129
notice was sent to the applicants' chosen domicilium
address on 1 June 2009.
[5]
The applicants admit to receiving the summons. However, the
applicants did not file a notice to defend. The applicants allege
that they were not able to secure the services of an attorney as they
were having financial difficulties.
[6]
The applicants are challenging the validity of the
section 129
notice
on the ground that its contents are not in accordance with the
provisions of that section and that they do not remember
receiving
the notice.
[7]
The above argument does not assist the applicants. The
section 129(1)
(a) notice was duly served on the applicants at their domicilium
address. Furthermore, the contents of the notice substantially
complies with the provisions of
section 129(1)
(a) of the Act.
Further, the risk of non-receipt of legal notices where a consumer
has chosen a domicilium address lies with the
consumer. Rossouw v
Firstrand Bank Limited
2010 (6) SA 439
(SCA); Munien v BMW Financial
Services (SA) (Pty) Ltd and Another
2010 (1) SA 549
(KZD).
[8]
A default judgment was granted against the applicants on 12 March
2010. Further the order also declared the property executable.
A writ
of execution was issued by the Registrar on 17 October 2010 which was
served on the applicants.
[9]
A sale in execution was scheduled for 2 June 2011 after the
applicants were notified thereof. However, the sale did not proceed
after the applicants negotiated with the applicants and made a
payment towards their arrears.
[10]
The applicants subsequently fell into arrears again and the property
was sold at an auction to the second respondent on 17
November 2010.
[11]
The applicants are seeking the rescission of the default judgment and
the consequent setting aside of the writ of execution
and the sale of
the property on the ground that the default judgment was erroneously
sought or erroneously granted.
[12]
Rule 42(1
)(a) provides that a court may, in addition to any other
powers it may have, mero motu or upon application of any party
affected,
rescind or vary an order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby.
This
means that the applicant has to show that the court in granting
the default judgment had committed an error "in the sense of
a
mistake in a matter of law appearing on the proceedings of a Court of
record. Bakoven Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(ECD). If
the applicant can prove the error committed by the court, it is not
necessary for him to explain his default.
[13]
The applicants are basing their application mainly on the ground that
the property in question was the home of their dependent
son and his
family. Further that the Registrar was not empowered to grant the
default judgment as it entails execution against
a person's home
without referring the matter to open court.
[14]
The applicants are also challenging the sale of the property on the
ground that the sale was irregular in that when the first
respondent
sold the property, it had not given them prior notice about the
intended sale.
[15]
It is common cause that the property was not the primary residence of
the applicants, who were the mortgagors. In Gundwana
v Steko
Development CC and Others
2011 (3) SA 608
(CC), the Constitutional
Court ruled that it was unconstitutional for the Registrar to grant
default judgment where the home of
the defendant is declared
executable. The Court indicated that in all cases where it is sought
to execute against the home of a
mortgagor, such matters should be
referred to court to be determined by a judge who will decide on the
executability of the home
of a person after taking into consideration
all the relevant facts. Further the decision in Gundwana (supra) has
retrospective
effect.
[16]
The applicants on their own version concede that the property was not
their primary residence as envisaged in the Gundwana
(supra). At the
time the default judgment was granted, the applicants' son why
occupying the premises. I am therefore of the view
that the
applicant's right to adequate housing has not been prejudiced by the
granting of the default judgment.
[17]
The first respondent correctly pointed out, with reference to the
decision in Gundwana, that in their papers the applicants
did not
show that they have a bona fide defence to the first respondent's
claim. I am in agreement with the contention of the respondents
that
since the property in question was not the applicants' primary
residence, the decision in Gundwana does not apply.
[18]
I am therefore of the view that the Registrar did not erroneously
grant nor was the order erroneously sought. The applicants
knew about
the default judgment by at least 2 June 2010 when the notice of the
sale in execution was delivered to them. As a result
of this
knowledge they had contacted the first respondent to negotiate.
Thereafter they had paid the arrear instalments. The applicants
have
not given an explanation as to why they have not brought this
application earlier in view of the challenges they raised with
regard
to the validity of the default judgment. By paying the agreed amount
was an indication that they were not intending to challenge
the
correctness of the default judgment and had acquiesced to it.
[19]
Accordingly the following order is made:
'The
application for the rescission of the judgment granted on 12 March
2010 and ancillary relief is dismissed with costs".
NP
MNGQIBISA-THUSI
Judge
of the High Court