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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 37318/06

DATE: 2/11/2007

NOT REPORTABLE

IN THE MATTER BETWEEN

HASANI DILLON NKUNA APPLICANT

AND

FIRSTRAND BANK LTD 1^ST RESPONDENT

SHERIFF OF THE HIGH COURT LETABA 2^ND RESPONDENT

JUDGMENT

SERITI, J

1. INTRODUCTION

This matter was brought to court by way of an urgent application.

In the notice of motion the applicant is seeking an order, inter alia, in the following terms:

1.1 that the sale in execution scheduled for Tuesday 8 May 2007 in respect of the property known as the Remaining Extent of Portion 2 of the farm Schalk 3 Phalaborwa be stayed pending the institution and finalisation of an application for the rescission of the judgment obtained by the first respondent against the applicant in respect of the said property;

1.2 costs.

2. FOUNDING AFFIDAVIT – URGENT APPLICATION

2.1 In the founding affidavit attached to the urgent application, the applicant alleges that after receiving summons he instructed a firm of attorneys to enter appearance to defend on his behalf and defend the action. He did that after receiving summons on 30 November 2006.

2.2 0n 3 May 2007 he was contacted by Ms Ingrid Kleynhans who informed him that his property is going to be sold in a sale in execution.

Mr Vorster, his local attorney, investigated the matter and discovered that his correspondent attorney in Pretoria has failed to enter appearance to defend as instructed and default judgment was obtained against him.

2.3 He further alleges that the property that was about to be sold in a sale in execution was in the process of being sold to Mr Sambo. The latter has already paid a deposit of R150 000,00 and he is still in the process of obtaining finance for the balance of the purchase price.

If he proceeds to conclusion with the transaction between Mr Sambo and him, no party will suffer prejudice but the opposite will happen if the property is sold in a sale in execution.

2.4 During 0ctober 2006 he approached the branch manager of first respondent after receiving notification that he was in arrears with his instalments.

He informed the said manager that he has found a buyer for the property and requested the manager, who agreed, to put on hold legal action against him to enable him to finalise the sale of the property and thereafter the full outstanding balance will be paid.

The deed of sale between Mr Sambo and him was signed on 6 November 2006 and on 9 November 2006 a letter was sent to the first respondent informing them of the sale and requesting the discharge figures of the bond to be cancelled.

An application was also made to the Greater Tzaneen Municipality to provide clearance figures in regard to the rates and taxes relating to the property.

A confirmatory affidavit signed by Messrs Sambo, Vorster and Lr Roux were attached to the papers.

2.5 Mr Vorster confirmed that applicant approached him on 29 November 2006 with two sets of summons issued out of this court. He forwarded copies thereof to Pretorius Le Roux Attorneys with request to enter appearance to defend in both cases. His Pretoria correspondent omitted to enter appearance to defend in this specific matter and that led to the default judgment being obtained against the applicant.

2.6 Mr T J le Roux, a Pretoria practising attorney, in the confirmatory affidavit confirmed that on 30 November 2006 he spoke to Mr Vorster who gave him instructions to enter appearance to defend in two matters.

As a result of an error, he did not enter appearance to defend in the matter where default judgment was obtained against the applicant.

0n 7 May 2007 this court granted an order in terms of prayer 1 of the notice of motion and costs were reserved.

3. APPLICATION FOR RESCISSION

3.1 Founding affidavit

In the affidavit attached to this application the applicant asks for condonation for the late filing of this application. The application was filed four days late.

He alleges that that was caused by the fact that his attorney had difficulties contacting him so that he could sign the affidavit supporting the application for rescission of judgment. He stays at very remote area and the cellular phone reception is intermittent. He applies for the late filing of the application.

3.4 As far as the merits of the case are concerned he repeated what he said in the urgent application.

He further alleges that now the application for finance of Mr Santo has been approved and the guarantees were requested from the financial institution.

Mr Vorster, the applicant's attorney, signed a confirmatory affidavit. In the said affidavit he confirms the cause of the delay to bring the application for rescission as alluded to by the applicant. He also confirms the affidavit in so far as it relates to the applicant's failure to enter appearance to defend.

4. Answering affidavit

4.1 It was attested to by Mr C A Verster, Manager: Commercial Recoveries of the respondent.

He alleges that the first respondent issued summons against the applicant on or about 29 November 2006. The applicant did not enter appearance to defend despite the fact that the summons were served on him.

4.2 Respondent applied for and obtained default judgment. Included in the default judgment was an order that the immovable property known as Portion 12 of the farm Taganashoek 465, Registration Division L.T. Limpopo Province, be declared specially executable.

A sale in execution was arranged for 8 May 2007.

4.3 He further alleges that at the urgent application hearing, the first respondent's counsel informed the Presiding Judge that the main problem was that the suspensive condition contained in the agreement between the applicant and Mr Sambo was not complied with, as a result of which the said agreement is void, and the Presiding Judge did not agree with the said submission by the first respondent's counsel.

4.4 The applicant has failed to launch the rescission application within the time period as stipulated in the order of BOSIELO J and consequently the said order has lapsed.

Since January 2006 the applicant has made payment of only R11 736,00 during the period April to May 2006.

4.5 The allegations made by the applicant that he entered into an agreement with the Giyani branch manager of the first respondent cannot be correct, as the said branch manager does not have the authority to enter into that type of agreement.

4.6 The amount outstanding on the account was called up as early as March 2006, and the account was handed over to the first respondent's attorneys of record on 12 0ctober 2006.

The manager at the Giyani branch who dealt with the account of the applicant and who communicated with the applicant is Mr Mafamadi and the latter denies that he entered into an agreement as alleged by the applicant.

4.7 The applicant was suppose to have delivered his application for rescission on or before 27 May 2007 and has failed to do so. His attorney Mr Vorster states that the affidavit was ready for signature on 30 May 2007, which is after the lapsing of the court order.

Mr Sambo did not obtain a loan in the amount of R500 000,00 secured by a mortgage over the property within a period of thirty days from 6 November 2006 as required by the agreement he entered into with the applicant.

The applicant does not disclose any defence to the first respondent's claim.

A confirmatory affidavit signed by Mr Mabungu Aaron Mafamadi was attached to the answering affidavit.

The applicant did not file a replying affidavit.

5. FINDINGS

5.1 In Morkel v Absa Bank Bpk en 'n Ander 1996 1 SA 899 at 903E SCHOLTZ AJ said the following:

"In die verband het hy geargumenteer met verwysing na die vereistes vir die tersydestelling van 'n verstekvonnis wat gesaghebbend neergelê is in Grant v Plumbers (Pty) Ltd 1949 2 SA 470 (O). Die vereistes is (op 476 7):

'(a) He must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance.

(b) His application must be bona fide and not made with the intention of merely delaying plaintiff's claim.

(c) He must show that he has a bona fide defence to plaintiff's claim.

It is sufficient if he makes out a prima facie defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour.'

Sien ook Federated Timbers Ltd v Bosman NO and 0thers 1990 3 SA 149 (W) te 155I 156B."

In Saphula v Nedcor Bank Ltd 1999 2 SA 76 (W) at 79C D, FLEMMING DJP said:

"It has always been the hall mark of what lawyers call a bona fide defence (which has to be established before rescission is granted) that defendant honestly intends to pursue before a court a set of facts which, if true, will constitute a defence."

In Bensch v Phalaborwa Transitional Local Council (1998) JOL 1684 W, the court was dealing with an application for the extention of a rule nisi in order to allow applicant an opportunity to file replying affidavit. The court granted the applicant an opportunity to file replying affidavit because it was of the view that in the absence of replying affidavit the court will be obliged to rely on the affidavit of the respondent which might work an injustice.

I propose dealing first with the requirement of bona fide defence and if necessary deal with other requirements thereafter.

5.2 0n the papers, it appears that the applicant does not deny its indebtedness to the applicant, but avers that the respondent cannot proceed against him because of the alleged agreement he entered into with Mr Mafamadi, the branch manager of respondent's Giyani office.

In the answering affidavit Mr C A Vorster alleges that the branch manager does not have authority to enter into that type of agreement. The account was last serviced in January 2006, the amount outstanding on the account was called up as early as March 2006, and two letters of demand, dated 30 March and 31 July 2006 were addressed to the applicant.

He further alleges that the account was handed over to the first respondent's attorneys of record on 12 0ctober 2006.

Mr Vorster further denies that Mr Sambo's loan was approved and stated that first respondent has not been placed in possession of any proof that the loan was approved timeously or at all.

Mr Mafamadi denied that he entered into any agreement as alleged by the applicant.

5.3 Despite the allegations contained in the answering affidavit, the applicant chose not to file any replying affidavit.

The procedure which the respondent follows in order to recover the debts as outlined in the answering affidavit is not disputed. This clearly means that the branch manager, once the process of recovering the debt is initiated and the account is referred to the debt recovery department the branch manager plays no role, and besides that he has no authority to enter into such an agreement.

The applicant has failed to demonstrate that he has a bona fide defence to the claim of the respondent.

5.4 0n 7 May 2007 the court reserved the costs after the applicant has brought an urgent application to stop the sale in execution of the property in question. The applicant was granted an opportunity to launch the current application. As I stated above, the applicant's application for rescission of judgment has no merits and consequently he must also carry the costs relating to the urgent application. The mortgage bond provides that in case of litigation, the mortgagee shall be liable to pay attorney and client costs.

The court therefore makes the following order:

1. Application is dismissed.

2. The applicant is ordered to pay the reserved costs plus the costs of this application on an attorney and client scale.

W L SERITI

JUDGE OF THE HIGH COURT

37318-2006

HEARD ON: 16 OCTOBER 2007

APPLICANT'S COUNSEL: L W DE BEER

APPLICANT'S ATTORNEYS: PRETORIUS LE ROUX INC

RESPONDENT'S COUNSEL: J E SMIT

RESPONDENT'S ATTORNEYS: DAMONS MAGARDIE RICHARDSON ATTORNEYS

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