Wentzel v Absa Bank Limited (43908/2013) [2017] ZAGPJHC 63 (6 March 2017)
- Citation
- [2017] ZAGPJHC 63
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- K E Matojane
- Case number
- 43908/2013
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- K E Matojane
- Case number
- 43908/2013
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the section 129 notice was dispatched to the applicant's chosen address and the track and trace report confirmed delivery to the relevant post office. The applicant was served with the summons and the section 129 notice, entered an appearance to defend, but failed to respond to the summary judgment application. The applicant did not provide any explanation for his failure to act or indicate what he would have done had he received the notification. He did not dispute the facts in the summons, relying solely on a technical defence of non-compliance with the National Credit Act. The court held that the requirements for rescission under Rule 42(1)(a) were not met, as the judgment was not granted erroneously and the applicant failed to establish a bona fide defence or reasonable explanation for his default.
Court disposition
Application for rescission dismissed with costs.
Orders
- The application is dismissed with costs.
02
Material facts
Parties
Wentzel Werner
Applicant Counsel: Adv. W SteynAbsa Bank Limited
Respondent Counsel: Adv. M Halstead03
Procedural history
Posture
Rescission Application / Application for Rescission of Default Judgment Under Uniform Rule 42(1)(a)
04
Questions and positions
Legal issues
- 01
Whether the default judgment was granted erroneously due to non-compliance with section 129 of the National Credit Act.
- 02
Whether service of the section 129 notice met the requirements established in Sebola v Standard Bank.
- 03
Whether the applicant provided sufficient explanation for his failure to respond to the proceedings.
Party arguments
- Applicant
- The applicant contends that the respondent failed to comply with section 129 of the National Credit Act 34 of 2005, as the track and trace records do not show proper service of the required notice. He relies on the Sebola judgment, arguing that the judgment was granted erroneously and should be rescinded under Rule 42(1)(a). No case is made under Rule 31(2)(b) or the common law.
- Respondent
- The respondent asserts that the section 129 notice was dispatched to the applicant's chosen address and the track and trace report confirms delivery to the relevant post office. The respondent highlights that the summons and notice were served on the applicant, who entered an appearance to defend but failed to respond to the summary judgment application, resulting in default judgment. The respondent argues that the applicant has not explained his inaction or disputed the facts in the summons.
05
Court’s reasoning
Legal principles
- 01
Uniform Rule 42(1)(a)
A judgment may be rescinded under Rule 42(1)(a) if it was granted erroneously in the absence of a party affected thereby.
- 02
National Credit Act 34 of 2005
Section 129 of the National Credit Act requires that a credit provider must deliver a notice to the consumer before instituting legal proceedings.
- 03
Sebola v Standard Bank of South Africa Ltd 2012 (5) SA 142 (CC)
Proper service of section 129 notices is required, and delivery to the consumer's chosen address is sufficient if confirmed by track and trace records.
- 04
Investec Bank v Ramurunzi (445/13) [2014] ZASCA 67
A party seeking rescission must provide a reasonable explanation for their default and set out a bona fide defence.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the section 129 notice was dispatched to the applicant's chosen address and the track and trace report confirmed delivery to the relevant post office. The applicant was served with the summons and the section 129 notice, entered an appearance to defend, but failed to respond to the summary judgment application. The applicant did not provide any explanation for his failure to act or indicate what he would have done had he received the notification. He did not dispute the facts in the summons, relying solely on a technical defence of non-compliance with the National Credit Act. The court held that the requirements for rescission under Rule 42(1)(a) were not met, as the judgment was not granted erroneously and the applicant failed to establish a bona fide defence or reasonable explanation for his default.
Obiter and limits
- The applicant's reliance on Sebola is misplaced as the facts indicate proper dispatch and delivery of the section 129 notice.
- A technical defence without substantive engagement with the merits of the claim is insufficient for rescission.
Court disposition
Application for rescission dismissed with costs.
- The application is dismissed with costs.
Source and reliance status
South Gauteng High Court, Johannesburg
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Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case number: 43908/2013
Reportable: NO
Of interest to other judges: NO
Revised.
6 March 2017
In the matter between:
WENTZEL
WERNER
APPLICANT
and
ABSA
BANK
LIMITED
RESPONDENT
JUDGMENT
MATOJANE J:
[1] On 13 June 2014, default judgment was granted against the applicant in this matter. The cause of action, in terms of the summons, is based on three overdraft accounts.
[2] This is an application for rescission of a default judgment which was granted by this court on 13 June 2014. The application is brought solely in terms of Uniform Rule 42(1)(a). No reliance is placed on the Rule 31(2)(b) or the common law. The applicant submits that the respondent has failed to comply with section 129 of the National Credit Act 34 of 2005. Consequently, the judgment was granted erroneously and ought to be set aside in terms of Rule 42 of the Uniform rules of Court.
[3] In paragraph 5.4 of the founding affidavit, the applicant states
“As appears from the track and trace records in regard to the section 130 notices the service in terms of section 129 does not comply with the requirements as set out in the Sebola judgment and has the Constitutional Court set out in the judgment that Mr Sebola was entitled to rescission of judgment on
account of the fact that the notices had not been properly served.”
[4] It is evident from the record that the notice in terms of section 129 of the Act was dispatched to the address used by the applicant for the purposes of serving any notices. The track and trace report reveals that the “item” reached the post office of Heidelberg, the area in which applicant resides. The track and trace report indicates that the item was ultimately delivered to AA POSTNET. The respondent avers that the notice did not come to his attention.
[5] It is common cause that summons, together with a copy of the notice under the National Credit Act, were served on the applicant on 4 December 2013. A notice of intention to defend was entered into on behalf of the respondent on 11 December 2013. On 18 December 2013 the respondent launched a summary judgment application, which was served on the applicant's attorneys and to which the applicant failed to respond. Default judgment was granted on 13 June 2014.
[6] The applicant fails to explain why he had not taken any further steps, being aware of the institution of the action and the application for summary judgment. Further, the applicant fails to make any averments as to why he had not taken action in terms of the notice that was annexed to the summons. He does not indicate what he would have done had he received the notification, what payment arrangements he would have made and he does not deny any facts set out in the summons, safe for a dilatory defense of non-compliance with the National Credit Act.
In the result I make the following order:
The application is dismissed with costs.
_____
K E Matojane
Judge of the High Court
Gauteng Local Division, Johannesburg
APPEARANCES
PLAINTIFF:
Adv. M Halstead
Instructed by:
Van Heerden Krugel Attorneys
DEFENDANT:
Adv. W Steyn
Instructed by:
Jay Mothobi Inc
HEARING DATE: 22 February 2017
JUDGMENT DATE: 06 March 2017
[1] 2012 (5) SA 142 (CC)
[2] See Investec Bank v Ramurunzi (445/13) [2014] ZASCA 67 (19 May 2014) at para 24.
[3] 2014 (3) SA 56 (CC)
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