Aphane v Standard Bank of South Africa Ltd and ANother (84012/2018) [2020] ZAGPPHC 637 (3 November 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

3/11/2020

CASE NO: 84012/2018

In the matter between:

DORAH LEBOGANG APHANE

Applicant

and

STANDARD BANK OF SOUTH AFRICA LTD

First Respondent

KGOMOAKATA THIOPHILUS MATABANE

Second Respondent

JUDGMENT

AVVAKOUMIDES AJ

1. On 11 August 2020 I heard this application for rescission of judgment by way of a virtual hearing on MS-Teams and rendered an ex tempore judgment, dismissing the application with costs. I was informed by my registrar that an application for leave to appeal against the ex tempore judgment had been filed and inexplicably, the recording of the ex tempore judgment could not be provided to the applicant. My registrar attempted on a few occasions to locate the recording through the responsible person at court without any success. I have been requested by the parties to provide the reasons for the order granted on 11 August 2020 which is the purpose of this judgment.

2. The applicant submitted that on 1 July 2019 she received a credit report from Transunion showing that a judgment had been obtained against her by the first respondent. She alleged that the judgment was granted against her on 28 January 2019 and she had no notice of the legal action under the above case number. The judgment thus came to her attention on 1 July 2019 upon receipt of the Transunion credit report.

3. The applicant made enquiries with the first respondent's attorneys of record, having gained knowledge of the judgment from the credit

report, and obtained a set of the court papers on 8 July 2019. She saw the summons and the suretyship agreement upon which the first respondent's claim is based, at that stage, for the first time.

4. In respect of the suretyship, the applicant submitted that this allegedly appears to have been signed by her at Pretoria on 13 March

2008. The summons had been served by way of affixing the summons to the principal door at 278 Johan Street, Arcadia, Pretoria on 5 December 2018. She submitted that this address is and was never her domicilium address. She thus had not received the summons.

5. The applicant submitted that during March 2008 she was employed as an enquiries clerk at Absa Bank at its Groblersdal Branch in Limpopo Province. She was thus not at Pretoria on the day of the alleged signing of the suretyship agreement, namely 13 March 2008. The applicant does not say when precisely, during March 2008 she was employed at Absa Bank. She simply denies being at Pretoria on 13 March 2008. Furthermore, she alleges never to have signed the suretyship agreement on which the first respondent's claim is based. In this regard she argued that the suretyship agreement is fraudulent and the signature appearing thereon is not her true signature. Her defence in a nutshell is that the suretyship agreement was fraudulently signed and it is not her signature appearing thereon.

6. The applicant attached copies of documents bearing her specimen authentic signatures from "approximately the years 2008/2009" and "from a cursory comparison it can be seen that the specimen signatures differ significantly from the one that appears on the Suretyship agreement attached". The applicant thus chose to place the burden of comparing the signatures on the court to reach a conclusion that it is not her signature

appearing on the suretyship agreement. This of course is inappropriate.

7. The above notwithstanding, the applicant alleges that she has instructed her attorneys of record to obtain an expert report from a handwriting expert in order to examine her "authentic signatures" at her previous employers and to do a comparison with the signature appearing on the suretyship agreement. This, the applicant should have done prior to launching the application and in my view, it would have been incumbent upon her to include the report to the rescission application.

8. The applicant submitted that she verily believes that her particulars were fraudulently used in the suretyship agreement because she had previously been in association with a close corporation known as Kgomoakata Business Enterprise CC. The name of the close corporation is peculiarly linked to the name of the second respondent upon whom this application has been served. The applicant submitted that her association with the close corporation ceased approximately one month after the date of signature of the suretyship agreement and she mentions the date as being 10 April 2008, appearing on the report of CIPC.

9. The applicant submitted that the second respondent had been in possession of her personal details at all relevant times because of her association with the close corporation. She further submitted that, in perusing the home loan agreement attached to the first respondent's particulars of claim it appears that: "There is no signature that purports to be mine on the document" and "I could not find any resolution of the close corporation that authorised the said respondent to sign the home Joan agreement". Lastly, the applicant submitted that it is strange that the second respondent only signed the home loan agreement on 14 March 2008, a day after the suretyship agreement was signed.

10. The applicant applied for condonation for the late filing of the application for rescission which, in the exercise of discretion, I granted and there is no further need to deal with the condonation aspect.

11. I now turn to the reasons for dismissing the application for rescission. In my view, the applicant could and should have obtained a report from a handwriting expert who would have examined the necessary documents and, for this purpose, even called upon the first respondent to produce the original suretyship document. The applicant could and should have provided the court with such report and not have left the decision to compare signatures to the court.

12. Judges are not handwriting experts and even with the best intentions, it is untenable for a judge to form a view or decision on issues falling within the ambit of experts. In my view the applicant's failure to produce such report is fatal to the application. In my view, it is not open to litigants to simply deny their signature without producing secondary evidence in their endeavour to show a bona fide defence.

13. The first respondent argued that the credit agreement was concluded in the name of a legal entity for a large amount of money and consequently the provisions of the National Credit Act Agreement do not avail the applicant. I agree that the National Credit Act is not applicable, given the circumstances of this case. The above constitutes the reasons for the extempore judgment in terms of which the application for rescission was dismissed with costs on the scale as between attorney and client.

G.T. AVVAKOUMIDES

ACTING JUDGE OF THE HIGH COUT

GAUTENG DIVISION, PRETORIA

Representation for parties:

For applicant:

Attorney K. P. Seabi

Instructed by:

K. P. Seabi Attorneys

For first respondent:

R. Raubenheimer

Instructed by:

Vezi De Beer Attorneys