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[2012] ZAGPPHC 283
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Rooplall and Another v Standard Bank SA Ltd (13631/2012) [2012] ZAGPPHC 283 (20 November 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO: 13631/2010
DATE:20/11/2012
In
the matter between:
ROOPLALL
JUDGESH
.............................................................
First
Applicant
ROOPLALL
NEETA
…..............................................................
Second
Applicant
and
STANDARD
BANK OF SA
LTD
...............................................
Respondent
JUDGMENT
MAKGOKA,
J:
[1]
This is an application by the applicants to rescind a judgment of
this court granted in default against them on 23 September
2010. The
circumstances under which default judgment was granted are the
following: The respondent alleged in a simple summons
that the
applicants had breached the terms of a loan agreement between it and
the applicants. The loan agreement was secured by
a mortgage bond
registered in favour of the respondent over the applicant’s
property. The respondent claimed payment of the
full outstanding
amount under the mortgage bond, namely R420 906.34. According to the
sheriff’s return of service, summons
was served at the
residential, and domicilium citandi et executandi, address, of the
applicants, by affixing to the principal door
of the residence. No
notice of intention to defend was delivered. The dies induciae
expired and default judgment was granted in
favour of respondent on
28 September 2010. This application was launched on 29 June 2011.
[2]
From the factual sypnosis, it appears that the application is brought
in terms of rule 31 (2) of the Uniform Rules of Court,
which provides
that a defendant may within 20 days after she or he obtains knowledge
of a judgment taken in default of delivery
of notice intention to
defend or of a plea, apply to court upon notice to the plaintiff to
set aside such judgment. The court may,
on ‘good cause’
shown, set aside the default judgment on such terms as to it seems
meet. For the purpose of the calculation
of the 20-day period
mentioned in the rule, the applicants’ version is that they
first came to know of the judgment in February
2011 when they applied
for credit and their application was unsuccessful. The application
was launched on 29 June 2011, thus outside
the 20-day period. There
is no application for condonation of the late launching of this
application. On this basis alone the application
has to fail. If this
conclusion is wrong, I would, as I am entitled to, consider the
application at common law, in terms of which
a judgment or order may
be rescinded on ‘good cause’.
[3]
The jurisdictional requirement of ‘good cause’ entails
two essential elements. First, a reasonable and acceptable
explanation for the default, and second, a demonstration of a ‘bona
fide’ defence. In Chetty y Law Society, Transvaal
1985 (2) SA
756
(A) at 765 B - C, the following was stated:
“
But
it is clear that in principle and in the long standing practice of
our courts, two essential elements of “sufficient cause”
for rescission of a judgment by default are:
(i)
that the party seeking relief must present a reasonable and
acceptable explanation for his default; and (ii) that on the merits
such a party has a bona fide defence which prima facie carries some
prospect of success.”
[4]
It is not sufficient if only one of these elements is established -
see Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimowitz
and
Others
1996 (4) SA 411
(C) at 418B. See also Grant v Plumbers (Pty)
Ltd
1949 (2) SA 470
(O) at 476.
[5]
The general approach to applications for rescission was restated by
Smallberger J (as he then was) in HDS Construction (Pty)
Ltd v Wait
1979 (2) SA 298
(E) at 300F-301C in the following terms:
In
Grant v Plumber (Pty) Ltd
1949 (2) SA 470
(O) Brink J, in dealing
with a similar provision, held (at 476) that in order to show good
cause, an application should comply
with the following requirements:
1.
He must give reasonable explanation for his default;
2.
His application must be bona fide;
3.
He must show that he has a bona fide defence to the plaintiff’s
claim.”
(See
also an erudite exposition by Jones J, in De Witts Auto Body Repairs
(Pty) Ltd v Fedgen Insurance Co Ltd
1994 (4) SA 705
(E) at 711 E-l.)
[6]
Having established the proper approach, I turn now to consider two
elements of :good cause1. I must do so in light of the explanation
proffered by the applicants for their default to enter an appearance
to defend. The explanation is simply that the applicants did
not
receive the summons. As stated earlier summons is said to have been
served on the applicants by ‘affixing to the principal
door’
at the applicants’ place of residence. The applicants state
they did not receive the summons.
[7]
They point out that they live in a residential complex and it is
possible that the sheriff could not gain entry to the complex
to
affix the summons on their specific unit’s main entrance, as
their unit does not have walls around it and further that
is has no
gates. The applicants state further that the first time they came to
know of the judgment taken against them was in February
2011 when
they applied for credit and their application was turned down as a
result of the judgment sought to be rescinded.
[8]
In an answering affidavit on behalf of the respondent, the manageress
of the respondent alleges that the second applicant called
the
attorneys of the respondent, Blakes Maphanga Inc on 11 March 2010,
two days after the summons was served, to make a payment
arrangement.
She spoke to an administrative employee of the firm and promised to
pay R 4000.00 per month from 1 April 2010. The
employee advised the
second applicant that since summons had been served, the respondent
would proceed with judgment without further
notice should they
default with payments.
[9]
It is further alleged that the second applicant again contacted the
respondent’s attorneys on three further occasions.
On 9
November 2010 she spoke to two employees of the firm about the
arrears, in an effort to cancel the sale in execution which
was
scheduled for 20 January 2011. She was told that 50% of the arrears
had to be paid to cancel the sale in execution. She called
again on
11 and 18 January 2011, respectively, during which she made
arrangements for payment in order to have the sale in execution
cancelled. As a result of these arrangements the sale in execution
was indeed cancelled. The confirmatory affidavits of the employees
and their file notes confirming the telephone calls, as well as the
confirmatory affidavit of the attorney, who also spoke to the
second
applicant, have been attached to the respondent’s answering
affidavit.
[10]
The applicants did not file a replying affidavit. At the hearing of
the matter, I enquired from Mr. Van Wyk, counsel for the
applicants,
whether the applicants did not wish for an opportunity to file a
replying affidavit. Counsel declined the invitation.
I
raised this point because of the serious allegations in the
respondent’s answering affidavit concerning the applicants’
approach to the respondent’s attorneys as set out above. In the
absence of any response from the applicants, I would have
to accept
the respondent’s allegations as correct.
[11]
Mr. Van Wyk, in anticipation of that, pointed out to me that those
allegations were inadmissible hearsay evidence, as they
were raised
by the manageress of the respondent, and the confirmatory affidavits
purporting to confirm them were not properly commissioned
as there is
no indication of the date on which the affidavits were commissioned.
This point was raised for the first time at the
hearing and in
fairness to Mr Vorster, counsel for the respondent, who had not
prepared himself on the point, I reserved judgment
and requested both
counsel to submit supplementary written submissions, dealing with
this issue. Counsel have done so and I am
grateful to them.
[12]
Regulation 4(1) of the Regulations Governing the Administration of
an Oath or Affirmation require that among others, the date
of taking
of the declaration should be stated. However, non-compliance with the
regulation can be condoned. See Swart v Swart
1950 (1) SA 263
(O)
where it was held that the grounds for the exercise of any discretion
to condone the defect should be placed before court.
[13]
In the present matter, I consider that the extent of non-compliance
is a minor one. All the required information is contained
in the
attestation clause, except the date, t therefore conclude that this
is a matter where common sense should prevail and the
non-compliance
be condoned. The applicants elected not to file a replying affidavit.
The reason is clear. The allegations in the
answering affidavit
appear to be unassailable. These are not generalized allegations.
They are very specific with regard to the
dates and times during
which the second applicant is said to have contacted the respondent’s
attorneys. The probability that
the second applicant was in constant
touch with the respondent’s attorneys after service of summons
is overwhelming. If those
allegations are not true, there is no
reason why the second applicant could not, in a short affidavit, deny
them.
[14]
With that conclusion, I must accept the respondents’ allegation
that the second applicant, two days after the service
of summons, and
thereafter on three other occasions, approached the respondent’s
attorneys, where she made arrangements for
payment and the
cancellation of the sale in execution. These allegations are not so
far-fetched or clearly untenable that they
fall to be rejected, and 1
accept them. This finding destroys the substratum of the applicants’
allegation that they did
not receive the summons and that they were
not in willful default.
Bona
fide defence
[15]
As to the bona fide defence, the applicants raise a number of points.
First, they dispute that they were ever in arrears, In
support of
this, they attached a letter dated 2 March 2011 from the legal
department of the respondent stating that there were
no arrears
reflecting on their account as at 9 December 2010, and that the
account was up to date as at the date of the letter.
But judgment was
taken in September 2010, when they were still in arrears. The letter
referred to above, does not assist the applicants.
It is trite that
in rescission applications, an applicant cannot rely on a defence
which did not exist at the time default judgment
was granted.
[16]
Second, it is alleged that the applicants never received the letter
sent in terms of s 129 of the National Credit Act. The
short answer
is this. The letter was sent to the chosen domicilium address of the
applicants. At the relevant time, the authority
was Rossouw y First
Rand Bank Ltd
2010 (6) SA 439
(SCA) para 31, in terms of which actual
receipt was the responsibility of the applicants, not of the
respondent. There was therefore
compliance with the provisions of s
129.
[17]
Third, the applicants claim that the respondent should have sent two
s 129 letters, one to each of them. There is no merit
in this
argument. The home loan with the respondent is one, single account,
jointly in the names of both applicants, not separate
accounts. The
applicants chose a single address to which notices should be sent to
them, they did not indicate that notices should
be sent to them at
separate addresses. The letter was addressed to them jointly.
[18]
Fourth, the applicants contend that no demand was made of them.
Summons constitutes demand. See SA Taxi Securitisation \/ Mbatha
2011
(1) SA 310
GSJ at 20 and 21. In any event clause 8 of the bond
agreement provides that if the applicants default in any way, all
amounts owing
become “immediately due and payable in full on
demand’. The respondent made demand of all the amounts owing
and therefore
they became immediately due and payable. There is no
provision that the respondent had to specifically notify the
applicants of
that election to accelerate before issuing summons.
[19]
In all the circumstances there is no merit in the application, it
falls to fail and in the result:
1.
The application is dismissed with costs.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD : 22 OCTOBER 2012
JUDGMENT
DELIVERD : 20 NOVEMBER 2012
FOR
APPLICANTS : ADV ASL VAN WYK
INSTRUCTED
: PRESHNEE GOVENDER ATTORNEYS,
BRYANSTON,
AND TINTINGERS ATTORNEYS, PRETORIA.
FOR
THE RESPONDENT : ADV SPM VORSTER
INSTRACTED
BY : BLAKES MAPHANGA INC, ALBERTON, AND
VAN
STADE VAN DER ENDE INC, PRETORIA