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[2012] ZAGPPHC 177
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Makuse v SA Taxi Securitisation (Pty) Ltd (690/11) [2012] ZAGPPHC 177 (20 August 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF THE REPUBLIC OF
SOUTH
AFRICA NORTH GAUTENG, PRETORIA
Case
number: 690/11
DATE:20/08/2012
In
the matter of:
ANDREW
THARIYA TSHEPE
MAKUSE
….........................................................
Applicant
And
SA
TAXI SECURITISATION (PTY)
LTD
..................................................................
Respondent
JUDGMENT
BAM
AJ
1.
On 6 January 2011 the respondent issued summons against the
applicant, claiming the return of a motor vehicle, a 2008 Toyota
Quantum Sesfikile mini bus. On 10 May 2011 default judgement was
granted in this Court against the applicant. Subsequently, on
25
November 2011, the vehicle was attached by the Sheriff on behalf of
the respondent.
2.
The applicant now applies for the rescission of the said default
judgment and the warrant for the attachment of the vehicle.
This
application is linked to an application for condonation of the late
filing thereof as a result of the situation that the applicant
did
not lodge the application for the rescission within the prescribed
time of 20 days, as provided by Rule 31(2)(b) of the Rules
of Court,
after becoming aware of the judgment. The applicant averred that he
became aware of the judgment when the vehicle was
attached by the
Sheriff on 5 December 2012. The application for rescission was issued
on 6 January 2012. The applicant blamed his
legal representatives for
the delay.
3.
During November 2008 the applicant purchased the motor vehicle in
question from a business trading as DEMO CARS. The vehicle,
save for
a deposit of R50 000 00 by the applicant, was financed by the
respondent. The applicant stated in paragraph 10.1 of his
founding
affidavit that he duly signed the credit application "after
having satisfied myself of the contents thereof'. The
applicant later
on in his affidavit, amongst others, disputed that he knew what the
contents of the credit agreement were, claiming
that it was not
explained to him, that he did not read it, and that blank spaces have
been filled in subsequent to his signing
of the agreement. This
latter statement by the applicant is contradictory to the contents of
par 10.1. Mr Mahlangu, appearing for
the applicant, was unable to
advance any explanation for this discrepancy.
4.
It was further stated by the applicant, apparently a taxi owner,
that he duly paid the installments until the middle of 2010
when he
started to experience financial problems. During July 2010 he
approached a debt counsellor. Due notice of this application
was
forwarded to the applicant. The applicant alleges that the respondent
did not respond to the said notice. On 13 December 2010
the applicant
received a notice in terms of the provisions of section 86(10) of the
National Credit Act, no 34 of 2005 ("NCA"),
addressed to
him by the respondent. The notice (page 168), informed the applicant
that his debt review, which commenced on 15 September
2010, was
terminated in terms of section 86(10) of the NCA. It was also stated
that the applicant was in arrears with his payments
in the amount of
R36 186 53. The applicant further declared that his debt counsellor
instituted an application in terms of section
86(8)(b) of the NCA at
the magistrate's office, Witbank. This application came before the
magistrate's court on 29 September 2011
but was on that date
postponed to 14 October 2011. On the latter date the matter was
removed from the roll. No information exists
as to what subsequently
happened to the said application.
5.
According to the applicant he paid the amount of R4779 00 to his debt
counsellor for distribution to his creditors. In December
2011, this
amount was increased to R6000 00 per month, upon request by his debt
counsellor, which amount the applicant said he
duly paid.
6.
In an application of this nature the applicant has to advance good
reason for his default.
See Harris v ABSA Bank Ltd t/a Volkskas
2006(4) SA 527 TPD.
The
applicant does not deny that the summons was served by having been
affixed to the main door of his residence as reported by
the sheriff
in his return of service. The applicant however denies having ever
laid hands on the summons. According to the applicant
the summons
must have been removed from where it was attached, either by an
unknown person or blown away by the wind. Although
this explanation
is not entirely convincing, it cannot be rejected as untrue.
7.
Turning to the question whether the applicant has a bona fide
defense, the applicant relies on the following:
(I)
That the respondent, the credit provider, contravened various
provisions of the NCA by charging amounts not justified in law.
The
applicant indicated that he experienced difficulty regarding the
computation and calculation of the amounts eventually claimed
by the
respondent. Pertaining to this issue it appears that the applicant
not only had the opportunity to avail himself of the
contents of the
documents he signed, but that he in fact satisfied himself in that
regard. The applicant's contention regarding
the problem with the
calculation and computation of the amount owed by him is without
substance. The amounts complained about by
the applicant are amounts
that can be expected to be added to the capital amount of the
purchase price of the vehicle in question.
It includes amounts
regarding value added tax, on road charge, number plates, a tracking
device and a vehicle sourcingfee.
(ii)
The applicant's reliance on the fact that he applied for debt review
does not avail him. No proof exists regarding any payments
to the
respondent after the debt review application was lodged. It appears,
in any event, that the applicant, without more, stopped
paying any
amount to the respondent. The applicant's claim that he paid an
amount to the debt counsellor for distribution to his
creditors do
not relieve him from the onus to ensure that the money was in fact
paid to his creditors, especially in view of the
fact that the
applicant apparently did not react to the section 86(10) of the NCA
notice received by him. The applicant was obliged
to keep track of
the situation regarding any payments allegedly made by him,
especially in view of the contents of the section
86(10) notice. It
is further clear that the applicant did not do anything about the
debt review proceedings before the magistrate's
court after the
matter was removed from the roll on 14 October 2011.
(iii)
That the respondent failed to send a notice to the applicant in terms
of the provisions of section 129 of the Act. In my opinion
a notice
in terms of section 129 is not required in circumstances where
section 86(10) is applicable.
(iv)
The contention that the respondent's particulars of claim are fatally
flawed in that no allegation is made that sect 129(l)(a)
of the Act
has been complied with, is moot and need no further comment.
8.
Accordingly, to my mind, the applicant does not have a bona fide
defense to the applicant's claim and should therefore not succeed
with the application for rescission of the default judgment in
question.
ORDER
The
applicant's application for the rescission of the default judgment
dated 10 May 2011 is dismissed with costs.
A
J Bam
Acting
Judge of the High Court 14 August 2012