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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 85460/16

DATE: 12/01/2018

In the matter between:

JULIA MMALLEKE CHIDI                                                                                1^st Applicant

SIBUSISO MOKWENA                                                                                    2^nd Applicant

And

ASSA BANK                                                                                                 1^st Respondent

SHERIFF GROBLERSDAL                                                                        2^nd Respondent

JUDGMENT

RANGATA AJ:

INTRODUCTION

[1] This is an application to rescind a default judgment granted against the  Applicant , Ms Julia Mmalleke Chidi on 06 October 2016. The application is  opposed.

[2] The 1st Respondent (respondent) and the applicant entered into a written instalment sale agreement  on the 08 May 2012 , wherein the respondent  would sell  to the applicant a motor vehicle. The applicant chose her domicillium citandi at which the delivery or service of legal documents would be served at stand no 1 Mohlalaotwane, Garakgwadi. The return of service of the summons stated that the service was effected on 16 August 2016 "upon Ms Linda R Mampane Constable  at the chosen domicillium citandi et executandi during the applicant 's  temporary  absence ".

BACKGROUND

[3] The applicant entered into a written  instalment  agreement  (the  agreement) with the respondent. It is common cause that the motor vehicle is as described in the particulars of claim. In terms of the agreement the applicant was to pay monthly instalment of R7 616. 95 for a period of 72 months to the respondent. The applicant defaulted in her repayment obligations in terms  of the  agreement.  As  a result  of such failure to pay, the respondent commenced with the legal  proceedings  against  the applicant by issuing a letter in terms  of  section  129  of the National Credit Act  and subsequently issued the summons.

[4] The  respondent  instituted  an  action  against  the  applicant  on  the  5t h  August 2016  under  case  number 61297/16.

[5] The applicant did not file its appearance to defend the action . The respondent filed an application for default judgment which was granted on the 5th October    2016, cancelling the agreement between the parties and ordering the applicant to return the motor  vehicle  to  the  respondent.  A wa_rrant  of  delivery  of  the  goods  was  issued by the Registrar of the High Court authorising the sheriff to take the motor  vehicle  from the domicillium citandi of the  applicant.

[6] The applicant avers that the default judgment be rescinded on the basis that she has a bona defence to the main action. She raised points in limine in support of the application for the rescission of judgement as stated  below:

6.1.        Defective summons and wrong sheriff  return

(a)         The applicant averred that the summons was allocated a duplicate case  number with another unrelated matter, i.e. 61297/2016. The return of  service contained a different case number, i.e. 61298/2016 . Further that the warrant of execution was issued under a different case number, i.e. 61298/2016. The applicant averred that as a result of a different and incorrect case number being used in the documents stated above in the matter it took her sometime to obtain the correct  file .

(b)          The applicant averred that the fact that the case number on the summons differs to the case number indicated on the default judgement render the summons defective.

(c)          The respondent averred that it issued original summons under case number 61298/2016. A copy thereof was served upon the applicant on the 16 August  2016  by Sheriff, Nebo. The combined summons served on the applicant is a copy and the original summons was  displayed to the recipient  at the time of service. The reason  for the discrepancy of the case numbers between the original and the copy of the summons is not known to the respondent  and that it is an administrative error made  by the Registrar of the High Court as the case number on the original  and  on the  copy were written by the Registrar.

6.2.       Jurisdiction

The applicant averred that she is residing in Limpopo , and that the action  should  have been instituted out of Limpopo High Court. She contended that the High court, Gauteng  division  does not have  the jurisdiction  to adjudicate  on the matter  as   the applicant 's address is in Limpopo, as such falls under the jurisdiction of the High  Court of South Africa, Limpopo division.

6.3 .    Non-compliance with section 130 of the National Credit Act 34 of 2005 .

The applicant averred that the respondent , upon issuing of the section 129 letter  which afforded the applicant a period of 15 days to make a payment of  the  outstanding instalment and that before the 15 days expired,  the  respondent proceeded to issue Summons thereof. The respondent averred that although the summons was issued prior to the expiry of the 15 days as provided for in the letter dated 19 July 2016 the service of the summons however, took place  after  the  15  days had expired.

THE LAW

This application is brought in accordance with Rule 42(1) which provides   that:

' The court may, in addition to any other powers it may have mero motu or upon the application of any party affected, rescind or vary:

(a)          An order or judgment erroneously sought or erroneously granted in the  absence of any party affected  thereby,

(b)          An order or Judgment in which  there  is  ambiguity ,  or  a  patent  error  or omission, but  only  to the extent  of such  ambiguity , error  or omission ;

(c)          An order or judgment granted as a result of a mistake common to the  parties'.

[8] An applicant for the rescission  of  a  default  judgment  must  show  good  cause, and give a reasonable  explanation  for  the  default.  The  applicant  must  show  that  there  is  a bona  fide defence  to the Plaintiff's  claim[1] .   In the case  of Grant  v    Plumbers

(Pty) Ltd[2] it  was  held that, " when a defendant appears in court to have the judgment set aside he must, in addition to explaining the failure to deliver  the  notice  of  intention to defend , he must place before the court sufficient evidence from which it can be inferred that there is a bona fide  defence".

[9] 'In order to establish a bona fide defence, the defendant must set out averments  which, if established, would entitle  him to  the relief  asked  for.  It is    not

necessary to deal with the merits of the case  or  produce  evidence  that  the probabilities are actually in the defendant 's favour [3].Where no sufficient reason is given for the failure to deliver notice to defend on it appears that the defendant has  no defence, leave  to reopen  will be refused. Where  the  applicant's conduct  in    failing

to enter appearance to defend had been both deliberate and intentional, the court  held that he was not entitled to a rescission of judgment obtained against  him'[4].

[10] In the case of Rossiter and others v Nedbank 96/2014 ZASCA para 16 it was stated that:

" The law governing an application for rescission under Uniform Rule 42(1) (a) is trite. The applicant must show that the default judgment or order had been erroneously sought or granted, a court should, without more, grant  the order for rescission. It is not necessary to show good cause under the sub-rule. Generally a judgment is erroneously granted if there existed at the time of its issue a fact which the court was unaware of, which would have precluded the granting of the judgment and  which would have induced the Court, if aware of it, not to grant the judgment. There can be no doubt that if the Registrar had been made aware of the procedural defect in the Rule 31(5)(a) notice default judgment would not have been granted.

[11] It is submitted by the appellant that the Gauteng Division of the  High Court does not have the jurisdiction. The High Court enjoys jurisdiction over all persons residing and all causes of action arising within its  area  of  jurisdiction  as well  as where the property in question is within the court's area of jurisdiction . The High Court's jurisdiction is founded on the doctrine of effectiveness, which refers to the principle that a claimant must sue out of the court which  will  be  most  effective in giving  a judgment: that is, the court which is best positioned to enforce the judgment.

[12] It is further submitted by the applicant that the respondent failed  to  comply  with Section 130 of the National Credit Act no 34 of 2005 (NCA), in obtaining a judgment against the applicant.

Section 130(1)  of the NCA provides  that:

(1) 'Subject to subsection (2), a credit provider  may approach the court for an order  to enforce a credit agreement only if, at that time, the consumer is in default and has been in default under that credit agreement for at least 20 business    days and-

at least 10 business days have elapsed since the credit provider delivered a notice to the consumer as contemplated in section 86(10 ), or section   129(1),

(a)         as the case may be;

(b)        in the case of a notice contemplated in section 129(1), the consumer   has-

(i)       not responded to that notice ; or (ii)

ANALYSIS

[13] The default Judgment  against  the applicant  was  granted  on  the 6^th October

2016, after the summons was served on her colleague almost two months  prior thereto. The applicant conceded that she was given the summons by her colleague who received it in her absence. Not much is being said as to what the applicant did after receiving the summons to avoid judgment being granted against   her.

[14] As stated in the case of Rossiter, supra, for the judgment to be rescinded, it must have been granted erroneously and further that if at the time of granting such judgment there existed a fact which the court was unaware of, of which would have precluded the granting of the judgment and which would have induced the court, if aware of it, not to grant the judgment. In the case at hand, there exists no fact which   if known to the court at the time of granting the judgment, the court would not have granted the judgment. Therefore, the court finds that there is no bona fide defence to the respondent 's claim. The appellant has not provided the basis for the outstanding instalments and when it shall be paid. Therefore the applicant has not shown good cause why the judgment should be rescinded.

[15] It is submitted by the applicant that she is residing at Mohlalaotwane, Ga­ Rakgwadi, Nebo, Limpopo, as such, the Limpopo division of the High Court has jurisdiction to adjudicate on the matter. The Respondent submitted that Gauteng division of the High Court had the jurisdiction to hear the matte r by virtue of the   sale agreement being signed in Pretoria as the area where the cause of action arose. It is stated in the case of Nedbank Ltd v Geyser 2006 (4) 548(W) at 574B that,

" The words 'causes of action 1 do not refer to causes of action but to all factors giving rise to jurisdiction under common law and has found that a court will have jurisdiction if the facts show a sufficient connection to the court's area of jurisdiction"

The sale agreement attached to the application was signed in Pretoria , being within the jurisdiction of the High Court, in the Gauteng division. It is therefore  confirmed  that the court had the jurisdiction to preside over the matter as the cause of action arose within its jurisdiction .

[16] It was submitted by the applicant that she was served with summons under  case number 61297/2016 and the judgment was granted under case number: 61298/2016 . The respondent submitted that the summons which  was  served upon the applicant contained the correct details of the applicant as well as the subject  matter of the claim. The question becomes whether the incorrect case number used, be it on the summons or on the judgment, renders the summons defective. The respondent instituted a claim against applicant for failure to honour the sale  agreement. The applicant failed to remedy the situation and wished it away. It is my view, that the incorrect case numbers indicated above cannot render the summons defective. It is common cause that the applicant received the summons. I am  therefore satisfied that the applicant was well aware of the claim that she needed to respond to and she failed to do so.

[17] The applicant submitted that the respondent failed to comply with  the  provisions of section 130(1) of the Act, in that it indicated in its section 129 letter that the applicant had 15 days to rectify the default and that the summons was issued before the 15 days expired . The applicant view the action of  the  respondent  in issuing the summons before the expiry of the 15 days provided in the section 129  letter as flawed and further that it was done whilst the applicant still had the right to exercise her right as per the said notice. In its argument  the respondent  submitted  that although the summons was issued prior to the expiry of 15 days, which was 11 days after the section 129(1) letter was delivered, acknowledging  that the Act   makes provision for 10 days for the applicant to rectify the default, the summons was only served upon the applicant after the expiry of the 15 days. As such it cannot be said that the respondent did not comply with section 130(1) of the  Act.

[18] Taking all the relevant facts at hand, the summons that shared a case number with another unrelated matter, the incorrect case number contained on the judgment , the submission that the court does not have the jurisdiction to hear  the matter, and  the alleged non-compliance with section 130(1) of the Act, I cannot find that the applicant made its case to sustain that  there is a bona  fide defence  to the main  action to warrant the rescission of the judgment. For the applicant to succeed on the application for the rescission of judgment, it must set out sufficient detail which will enable the court to conclude that there is a bona fide defence to the action. The applicant must also show that there exist a fact that if the court was aware of at the time of granting the judgment, it would not have granted such judgment, and this is not the case . Disregarding the administrative error in the case numbers,  the applicant cannot dispute that the summons that she was served with contained sufficient detail on the issue at hand and the basis for the action instituted. No explanation is provided as to why the applicant did not defend the action.

[19] In the case of Riddles v Standard bank of South Africa Ltd 2009(3) SA 463(T)   at 466 para [a], Murphy J stated  that:

[10] ". . . the applicant must furnish an explanation for  his  default  sufficient  to enable the court to understand  how the default came about and to assess whether  his conduct and motives are reasonable . The wilful or negligent nature  of  a  defendant 's default is one of the various considerations which a magistrate is obliged to take into account in the exercise of his discretion to determine  whether  or not  good cause is shown"

[20] The applicant failed to take the court into confidence by showing that she has    a bona fide defence. From the time she received the section 129 letter, to the time  she was given the summons by her colleague and further receiving  the judgement and the warrant of execution, she has not indicated the steps taken to remedy the

default. The debt remains outstanding; as such the court does not have sufficient grounds to grant the application,

[21] In the result I give the following   order,

(a)        The  application  for  the  rescission  of  judgment  granted  on  the  5t h  October  is dismissed  with costs..

_________________

B RANGATA

(ACTING JUDGE OF THE HIGH  COURT)

MATTER HEARD ON                                        27  November 2017

ATTORNEYS FOR THE APPLICANT              KGWADI NGWAKO

                                                                                MATHABATHA INC

ATTORNEY  FOR THE RESPONDENT           RW ATTORNEYS

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