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[2024] ZANCHC 90
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Khatlhane v ABSA Bank Limited (623/2011) [2024] ZANCHC 90 (24 May 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO.: 623/2011
Date heard: 23-01-2024
Date delivered:
24-05-2024
Reportable:
Yes/No
Circulate
to Judges:
Yes/No
Circulate
to Magistrates:
Yes/No
In the matter between:
LETLHOGONOLO
LAWRENCE KHATLHANE
Applicant
Identity No: 7[...]
And
ABSA
BANK LIMITED
Respondent
t/a
ABSA VEHICLE & ASSET FINANCE
REGISTRATION
No: 1986/004794/06)
CORAM: WILLIAMS
J:
JUDGMENT
WILLIAMS J:
1.
In this application for rescission, the
applicant, Mr L L Khatlane, who appeared in person seeks an order in
the following terms:
1.1
That the warrant of attachment be rescinded
and the agreement between the parties be referred back to the debt
counsellor;
1.2
That the attached vehicle be returned to
the applicant;
1.3
Condonation for the late filing of the
application; and
1.4
That the respondent be ordered to pay the
costs of the application.
2.
The application is opposed by the
respondent ABSA Bank Limited.
Background
3.
During June 2019 the parties entered into
an instalment sale agreement in terms whereof the respondent sold to
the applicant a Mahindra
Pik Up vehicle of which the recoverable
amount was calculated at R418 626, 48 payable by way of 72
monthly instalments of
R5 743, 82.
4.
The applicant fell behind with the payments
on the vehicle and by August 2021 the arrears amounted to R30 294,
84.
5.
On 24 August 2021 the respondent notified
the applicant by registered mail, in terms of s129 (1) of this
National Credit Act, 34
of 2005 (the Act), of his default and
proposed
inter alia
that the applicant refer the credit agreement to a debt counsellor.
6.
The applicant failed to respond to the
s129(1) notice and on 27 September 2021 summons was served on the
applicant whereby the respondent
claimed
inter
alia
confirmation of the cancellation
of the agreement, an order authorizing the sheriff to attach, seize
and hand over the vehicle
and forfeiture of all monies paid to the
respondent.
7.
The applicant failed to file a notice of
intention to defend and on 1 November 2021 default judgment was
granted in favour of the
respondent, by the Registrar.
8.
On 18 January 2022 the vehicle was attached
and removed from the applicant’s possession.
Condonation
9.
This application was filed on 15 March 2022
and served on the respondent’s attorney on the same date.
10.
The application was filed out of time.
In his favour, and in the absence of an averment to this effect, I
will assume that
the applicant would at the latest have become aware
of the judgment against him when the vehicle was attached on 18
January 2022.
This would mean that he was at least one month
late in bringing this application.
11.
The reasons given by the applicant for the
delay range from psychological problems which he suffered from during
2020 as a result
of a failed marriage and the subsequent divorce
action, to him being infected with the Corona virus during April
2021, which further
exacerbated his psychological difficulties.
In any event, the applicant explains that he had consulted with a
certain Mr
Lucas Ruiters, after the vehicle had been attached, who
indicated that he would bring an urgent application for the recovery
of
the vehicle. Despite having paid Ruiters R1000, 00 for his
services the urgent application was not forthcoming after 30 days.
The applicant then approached a certain Mr Faniki Mothibi on 2 March
2022 to assist with his legal difficulties.
12.
Mothibi assisted the applicant with
correspondence to Kemp de Bruyn Inc., debt counsellors, whose role in
this matter I will elaborate
on shortly, and the respondent’s
attorney in an effort to resolve this matter. After a week
passed and with no feedback
from the debt counsellor and the
respondent’s attorney merely acknowledging receipt of the
correspondence and that it would
be forwarded to respondent for its
records, the applicant decided to bring this application for the
rescission of the judgment.
Mothibi, whom I understand is not
an attorney but who according to the applicant is well known within
the community for his “
strong
legal background in civil litigation”
,
assisted in drafting the application papers, for a fee.
13.
I am of the view that in these
circumstances the delay in bringing this application was not
intentional or in any way
mala fide
.
The mistake made by the applicant was to seek legal advice from
persons who are not attorneys. The respondent does
not oppose
the application for condonation. In the interests of justice
and in order to bring finality to this matter, which
has been
postponed on four previous occasions, condonation is granted.
Merits of the
application
14.
In an application for rescission under Rule
31 an applicant is required to (i) give a reasonable explanation for
his default; (ii)
the application must be
bona
fide
and not made with the intention of
merely delaying the plaintiff’s claim; and (iii) he must show
that he has a
bona fide
defense to the plaintiff’s claim.
15.
The applicant’s main submissions can
be summed up as follows:
15.1
During April 2021 he found himself in financial difficulties and
applied to the debt counsellor for debt
review as envisaged in s86 of
the Act.
15.2 On
28 April the applicant received an e-mail from the debt counsellor
that the application for debt review
had been accepted and that in
order for it to be made an order of court he had to sign and have
commissioned a confirmatory affidavit.
The e-mail which is
annexed to the papers specifically mentions that “
without
your affidavit, your application cannot proceed to court and your
creditors may proceed to take steps against you.”
15.3
Significantly the correspondence from the debt counsellor does not
reflect the respondent as one of the creditors
whose credit agreement
with the applicant was reviewed and due to be subjected to a debt
re-arrangement plan.
15.4
The applicant submitted that he had indeed included the respondent as
a credit provider in his application
for debt review but that for
some unknown reason his obligations to the respondent did not form
part of the process of debt review
and re-arrangement. As a
result he refused to have the confirmatory affidavit in support of
the debt re-arrangement application
signed and commissioned.
15.5
After he received the s129 (1) notice on 24 August 2021 he forwarded
the notice to the debt counsellor by
e-mail, however the debt
counsellor failed to amend the creditors list or to provide the
applicant with an amended confirmatory
affidavit. Applicant
failed to annexe a copy of this e-mail to his papers.
15.6
What is attached to the applicant’s papers is an e-mail sent to
the respondent’s attorneys on
27 August 2021 querying the
arrears as mentioned in the s 129(1) notice.
15.7
From the annexures attached to the applicant’s founding
affidavit, it appears that he also emailed
the s129 (1) notice to
Mothibi on 3 September 2021. Thereafter and on 30 September
2021 the applicant sent another e-mail
to Mothibi, informing him that
he will send him a copy of the summons on the following day.
15.8 No
further correspondence occurred between the applicant and the
relevant parties until after the attachment
of the vehicle.
15.9
The applicant in essence blames the debt counsellor and the
respondent’s attorneys, who he claims colluded
against him in
order to effect the attachment of his vehicle.
15.10 He submits
that he has a
bona fide
defense in that the debt counsellor
and/or the respondent manipulated the debt review system and thereby
denied him the legal protection
afforded by s129 of the Act.
16
What is evident from the above exposition of the applicant’s
case is that there is no explanation
as to why the applicant failed
to enter an appearance to defend the action except for general
averments of stress and him not being
in a proper state of mind.
This did not however prevent the applicant from sending the summons
to Mothibi as mentioned in
paragraph 15.7 above. From the lack
of a reasonable explanation for his default I can come to no other
conclusion but that
it was deliberately done.
17
Willful default is however not necessarily a ground for the refusal
of an application for rescission
of judgment. In
Harris v
ABSA Bank Ltd t/a Volkskas
2006 (4) SA s27
(TPD)
Moseneke J as he
then was, stated the following at paragraph 10 of the judgment:
“
[10]
A steady body of judicial authorities has held that a court seized
with an application for rescission of judgment
should not, in
determining whether good or sufficient cause has been proven, look at
the adequacy or otherwise of the explanation
of the default or
failure in isolation.
‘
Instead,
the explanation, be it good bad, or indifferent, must be considered
in the light of the nature of the defense, which is
an important
consideration, and in the light of all the facts and circumstances of
the case as a whole.”
De Witts Auto Repairs
(Pty) Ltd v Fedgen Insurance Co Ltd (supra) at 711D.”
18.
It follows that the next issue which need to be discussed is whether
the applicant has shown good cause
in bringing this application.
In
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at
352 the Appellate Division held that good cause included the
existence of a substantial defence.
19.
In this regard it is significant that the applicant does not dispute
that he had fallen into arrears
with the payment of the instalments
on the vehicle. He does therefore not dispute that he has
breached the terms of the agreement
entered into with the
respondent. The defence raised i.e. that the debt councellor
and/or the respondent colluded to deny
him his rights in terms of the
Act is not supported by any documentary evidence or correspondence to
that effect. Conspicuous
by its absence, amongst the annexed
medical certificates and e-mails between the applicant and the
respondent and/or its attorneys
and between him and the debt
counsellor, are the e-mails/correspondence relating to his
application for debt review, which would
according to him have
included the respondent as a creditor, his alleged e-mail to the debt
counsellor which would have shown that
he had requested the agreement
with the respondent to be subjected to debt review after receipt of
the s129 (1) notice or any correspondence
with the respondent’s
attorneys relating to him having applied for debt review within the
period referred to in the s129
(1) notice.
20.
In my view the applicant has failed to show that he has a
bona
fide
defence. That being said, an application for the
rescission of the default judgment should be refused.
21.
It will be noted that the applicant, in his Notice of Motion, asks
for the warrant of attachment to
be set aside. I have dealt in
some detail herein with the requirements for the rescission of a
judgment because the applicant
as a layperson (as well as his
advisor) does not seem to appreciate the distinction and refer
interchangeably in the founding affidavit
to rescission of the
judgment and rescission of the warrant. The respondent was
alive to this inconsistency and wisely addressed
both issues in its
answering affidavit and the Heads of Argument.
22.
The relief sought in the Notice of Motion, i.e. the setting aside of
the warrant of attachment, would
not be competent in the absence of
an order rescinding the judgment. An order setting aside a
warrant of attachment can be
made where it can be shown for instance
that the warrant is formally defective or where the judgment has been
satisfied by payment,
in which case the applicant bears the burden of
proving such payment. No case has been made out for such an
order.
23.
In the event, whether the application in fact is for a rescission of
the default judgment or for the
setting aside of the warrant of
attachment, it stands to fail.
Costs
24.
Mr Olivier who appeared for the respondent has urged that the
applicant be ordered to pay the costs
of this application on a
punitive scale as a result of his lack of
bona fides
and his
obvious attempts at frustrating the respondent’s claim.
Whilst I am mindful of the delay which this application
has caused
and the fact that on one previous occasion on 27 October 2023 the
matter was postponed with an order that the applicant
pay the costs
occasioned by the postponement on the attorney and client scale, I am
however not of the view that the conduct of
the applicant, in
relation to this application, is sufficiently reprehensible to
warrant a punitive cost order.
In the circumstances
the following order is made.
a)
The application for rescission is
dismissed with costs on the party and party scale, such costs to
include the wasted costs occasioned
by the postponements on 7 October
2022 and 10 February 2023.
CC
WILLIAMS
JUDGE
For
Applicant:
In
Person
Respondent:
Adv.
J Olivier
Van
De Wall Inc.