Nedbank Limited v Ramparsad and Another (58806/2018) [2021] ZAGPPHC 746 (4 November 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

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

(3)

REVISED

Case number: 58806/2018

Date:

In the matter between:

NEDBANK

LIMITED

APPLICANT/RESPONDENT

AND

DINAH

RAMPARSAD

FIRST RESPONDENT/APPLICANT

ROZAN

RUTH RAMPARSAD

SECOND RESPONDENT

REASONS FOR ORDER GRANTED ON 14 OCTOBER 2021

TOLMAY, J:

INTRODUCTION

[1] There is a pending application in terms of Rule 46A between the parties, (the Rule 46A application), this application only deals with the first respondent’s application for the condonation of the late filing of a supplementary affidavit and leave to file same in terms of rule 6(5) (e). For sake of convenience the parties are

referred to as in the main application.

[2] The first respondent initially brought an application for postponement of this application. The application for postponement was abandoned and costs tendered on an attorney and client scale, and such an order was made.

BACKGROUND

[3] The background to the application condoning the late filing of the affidavit which is the subject matter of this application is important. This was set out in the applicant’s answering affidavit. No replying affidavit was filed.

[4] In the absence of a replying affidavit in the present application it was the applicant’s

submission that the applicant’s version, as it stands in the answering affidavit, stands to be accepted as uncontested on those allegations that have challenged the content of the founding affidavit. This much is trite.[1]

[5] On 4 September 2018 the summons was served. Second respondent did not file a notice of intention to defend, however on 27 January 2019 the first respondent delivered a notice of intention to defend. An application for summary judgment against the first respondent was delivered on 5 February 2019. A notice of set down in respect of the default judgment and Rule 46A application was delivered and second respondent was informed that both applications would be heard,

together with the summary judgment on 8 April 2019. First respondent delivered an affidavit opposing the Rule 46A application

on 28 January 2019. He delivered a supplementary affidavit (without leave of the Court) on the same day. The two affidavits were

delivered prior to the service of the Rule 46A application.

[6] On 8 April 2019 both respondents appeared in person. The respondents sought a postponement to enable them to settle the arrears. Applicant opposed the request for a postponement. The presiding judge refused the application for a postponement and granted an order in terms of which default judgment was granted against the second respondent and summary judgment was granted against the first respondent for the money part of the judgment. The relief in terms of which the property

was declared executable was postponed sine die.

[7] During May 2019 the first respondent delivered an affidavit opposing the Rule 46A application. By that stage the applicant had already enrolled the application and same was set down for 6 June 2019.

[8] On 6 June 2019, and since the second respondent still had not opposed the Rule 46A application, the applicant sought an order against her. The presiding Judge was not willing to entertain the application on a piece meal basis and it was postponed. The Rule 46A application is thus against the first and the second respondent.

[9] Applicant’s heads of argument and practice note was delivered on 10 February 2020. The first respondent was requested by letter and email to deliver his heads of argument and practice note, however no response was forthcoming. Applicant proceeded to deliver an application to compel the first respondent to deliver his heads of

argument and practice note, which was delivered on 3 March 2020.

[10] On 28 May 2020 the set down was served in which the first respondent was informed that the application to compel was set down for 26 June 2020. No opposing affidavit was delivered by the first respondent. Instead the application to file the present further supplementary affidavit was delivered on 25 June 2020.

[11] There was no appearance on behalf of the first respondent on 26 June 2020. The contents of this application and the background of the matter were brought to the attention of the presiding Judge by counsel on behalf of the applicant. Having been informed of this application it was ordered that the first respondent was to deliver his heads of argument within 10 days of the order.

[12] The first respondent had delivered 3 (three) affidavits opposing the Rule 46A application. Same was done without seeking consent from the Court. If a further answering affidavit is allowed it would mean that the first respondent will be allowed to deliver 4 (four) affidavits in opposition to the Rule 46A application.

[13] It was the case of the first respondent that the late delivery of this supplementary affidavit should be condoned and that leave should be granted to deliver the further supplementary affidavit. The first respondent’s case was premised thereon that, during March 2020 a forensic audit, in respect of the subject home loan account, was conducted by Interec Auditors. In terms of the forensic audit it was found that an amount of R152 309.53 has been overcharged on the home loan account. It is important to note that the so called forensic audit, is not supported by an affidavit, nor is the person who drafted it identified. First respondent fails to state when he gave the purported instruction to Interec Auditors, and to whom at Interec Auditors the instruction was given, and what the mandate of the purported instruction to Interec Auditors was.

[14] There is no explanation as to how Interec Auditors came to the conclusion in the ‘forensic audit’ as there is no evidence presented as to how the alleged forensic audit was conducted, what figures, interest rate, payments and formulae were applied. In the premises the purported evidence contained in the ‘Forensic Audit’ is based on hearsay and inadmissible.

[15] The first respondent fails to take the Court into his confidence to explain the time lapse as the report is presented 10 months after the delivery of the answering affidavit on 31 May 2019.

[16] First respondent argued that from the forensic audit it is evident that the first respondent is not indebted to the applicant in the sum claimed by the applicant and as such the applicant is not entitled to the relief claimed in the main application. The first respondent, by relying on the purported forensic report at this point seek to change his defence for the fourth time and to present a complete different version to the Court.

[17] The first respondent also states that the results of the forensic audit had been referred to the National Credit Regulator by the first respondent for determination, as of date of the application no decision in respect thereof had been made by the National Credit Regulator. The first respondent contends that the content of the forensic audit is a vital component of the first respondent’s bona fide defence. There is no merit in this argument as the first respondent admitted breach of the agreement and that he is indebted to the applicant, as a result the report to the National Credit Regulator is irrelevant for purposes of this application.

[18] The monetary judgment was granted on 8 April 2019, the new evidence in support of the first respondent’s alleged defence, can only have a bearing on the monetary part of the claim and not on execution as is sought in the Rule 46A application. The first respondent has elected not to rescind the monetary judgment and since same stands his belated attempt to allege that incorrect interest were levied cannot assist him in the Rule 46A proceedings.

[19] No sufficient reason was provided as to why the evidence was not produced timeously and as the new evidence is not properly substantiated there is no degree of materiality to it.[2] Furthermore the defence only has bearing on the monetary judgment and has no bearing on the Rule 46A application.

[20] It is contended by the first respondent that the delay in bringing the application was a result of the impact of the National Lockdown and as such same was not intentional or negligent on the part of either the first respondent

or his attorney. The complaint has no merit as no details were given why the attorney could not have drafted the papers timeously, it is common knowledge that most legal practitioners and this Court continued with its duties electronically. In the absence of a proper explanation this argument has no merit.

[21] It was further argued by the first respondent that he and his dependants will be left destitute and the constitutional rights afforded to them will be infringed if the relief claimed is not granted. It is submitted that no prejudice to the applicant could be foreseen and as such no tender towards costs were made. It was conceded that the Rule 46A application is at an advanced stage in litigation, but it has not yet been adjudicated or pronounced on and therefore there can be no prejudice if there is a further delay. The first respondent’s constitutional rights are not affected by this application, and the Court hearing the Rule 46A application will consider same.

[22] The first respondent, in his affidavit for the first time seeks an order that the Court consider

the forensic audit and dismiss the main application alternatively to stay the main application pending the outcome of the complaint lodged by the National Credit Regulator. These prayers are not contained in the notice of motion. A Court who is not seized with the Rule 46A application can hardly determine it.

[23] Importantly the first respondent, under oath, concedes to the breach of the agreement and made it clear that he will make every endeavour to settle same. He further states in the third answering affidavit that he is still willing to settle the matter with the applicant on an amicable basis and without the need for expensive litigation.

[24] It is concerning that during argument counsel for the first respondent indicated that, in addition to the affidavit presently before the Court, he held oral instruction that a further supplementary affidavit is contemplated. This will, if allowed, result in five supplementary affidavits being filed. This illustrates that the first respondent is abusing the process to delay the determination of the Rule 46A application.

[25] As a general rule of pleading only three sets of affidavits are allowed. In terms of the provisions of Rule 6(5)(e) of the Uniform Rules of Court a court may allow the delivery of further affidavits. In this instance the first respondent failed to provide a satisfactory explanation as to why the facts in the fourth affidavit were not put before Court at an earlier stage and failed to make out a case that the applicant will not suffer any prejudice that cannot be remedied by an appropriate costs order.

[26] The applicant will suffer prejudice if the application is further delayed. The matter has been dragging on since 2018 and the first respondent admitted breach of the agreement and is accordingly on his own version indebted to the applicant. Applicant is entitled to finality in judicial proceedings and the delay in this matter caused by the actions of the first respondent constitutes an abuse of process and should not be allowed.

[27] In the light of all these facts the first respondent’s application was dismissed and the order was made.

R G TOLMAY

JUDGE OF THE HIGH COURT

DATE OF HEARING:

14 OCTOBER 2021

DATE OF REASONS:

4 NOVEMBER 2021

ATTORNEY FOR APPLICANT/RESPONDENT:

HAMMOND POLE MAJOLA INC

ADVOCATE FOR APPLICANT/RESPONDENT:

ADV J MINNAAR

ATTORNEY FOR RESPONDENT/APPLICANT:

CSM ATTORNEYS

ADV FOR RESPONDENT/APPLICANT:

ADV N NCUBE

[1] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).

[2] Nikc’s Fishmonger Holdings (Pty) Ltd v Fish Diner Bryanston (CC) 2009(5) SA 629 (W) paras 541G – 642D.