B.V v Standard Bank of South Africa and Another (44749/2020) [2023] ZAGPPHC 40 (23 January 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2023 >> [2023] ZAGPPHC 40 | Noteup | LawCite sino index ## B.V v Standard Bank of South Africa and Another (44749/2020) [2023] ZAGPPHC 40 (23 January 2023) B.V v Standard Bank of South Africa and Another (44749/2020) [2023] ZAGPPHC 40 (23 January 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2023_40.html sino date 23 January 2023 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA THE GAUTENG DIVISION, PRETORIA Case no: 44 7 49/2020 REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO REVISED: NO 23 January 2023 In the matter between: B [....] V [....]                                                                                                      APPLICANT and STANDARD BANK OF SOUTH AFRICA                                               1st RESPONDENT SHERIFF OF THE HIGH COURT FOR THE DISTRICT OF CARLTONVILLE                                                            2nd RESPONDENT JUDGMENT MALUNGANA AJ Introduction 1. On 26 November 2020, the first respondent ('hereinafter referred to as ' the bank'), successfully launched an application for default judgment against the applicant for payment of the sum of R1 160 888.66 ,i nterest thereon plus costs. 2. The action which resulted in the aforesaid default judgment was predicated upon a home l oan agreement which the applicant and her former husband ( ' C [....] ' ) concluded with the bank. The sa id loan was secured by means of a continuing covering mortgage bond [1] which was registered over the parties ' immovable property situated at Celtisdal Extens i on 20 , Section No.23 of Sectional Title Scheme known as Robinson within the City of Tshwane ('the property'). 3. In terms of the loan agreement, the principal debt together with intere st at an applicable rate was payable by the applicant and her former husband over a per i od of 240 months . In breach of the terms of the loan agreement the applicant and C [....] fell into arrear with their loan repayment to the bank, prompting the latter to institute lega l proceedings for the recovery of the outstanding debt. 4. It appears from the papers that the applicant was alerted to the existence of the default judgment when the sheriff of the court turned up at her doo r steps , armed with the writ of execution issued by the registrar on 15 March 2021 . [2] 5. The applicant n ow seeks to have the default ju dgment obtained against her rescinded , and in this regard has brought this application before me which is being opposed by the bank. Immediately I turn to th e legal principles governing applications for rescission or judg me nts . 6. There are three di spensations under which an application for r escission of judgment can be brought, namely : (a) Rule 31(2)(a) - where there is no appearance to defend or where the defendant has filed an appearance to defend but failed to file a plea and was barred from doing so ; (b) Rule 42.1 -where (i) the judgment sought to be rescinded was erroneously granted in the absence of the affected party;(ii) there is a patent error or omission or ambiguity in such judgment , but only to the extent of such error or omission or ambiguity ; or (iii) was granted as a result of mistake common to the parties . This application does not pivot on this rule as it would become clear herein below. (c) Common law - where the applicant has to demonstrate suffic i ent or good cause for the court to exercise discretion in his/he r/ its favour. That would entail a situation where the party presents reasonable and acceptable explanation for her/his or its default; and that party also has to show on merits that it/she/he has a bona fide defence , which prima facie carries some prospect of success. [3] 7. At this stage it is necessary to set out the relevant background facts. Factual Background 8. On 08 September 2020 the bank issued summons against the applicant out of this division for the outstand ing amount o f R1 160 888.66 and ancillary relief . 9. According to the sheriff's return of service , the summons was served upon the applicant on 16 September 2020 , at her chosen domicilium et executandi being 10 Fish Eagle Charles De Gaulle Crescent, Centurion by affixing a copy thereof to the principal door after a diligent search, in terms of Rule 4(1)(a)(iv) of the Uniform Rules. [4] 10. The application for default judgment was launched by the bank on 23 October 2020, and was granted on 26 November 2020. 11. The application before me was instituted by the applicant during the month of May 2021, and served upon the first respondent on 12 May 2021. [5] 12. It is alleged in the particulars of claim that in terms of the loan agreement, if one instalment is not paid on the due date the whole outstanding balance would become due and payable. [6] In that event the first respondent would be entitled to institute proceedings for the recovery of all such amounts and for a court order declaring the hypothecated property executable. The certificate signed by a manager of the first respondent would become a prima facie proof of the amount owed by the applicant and her former husband. [7] 13. It is alleged in paragraph 8.1 of the particulars of claim that the applicant's former husband, C [....] B [....], was placed under final sequestration on 14 September 2009, and Trustees were appointed in his estate. The bank contends that the trustees were unable to settle the first respondent's claim. As a result the property in question was realized and the proceeds were utilized to partially settle the first respondent's claim against the estate . [8] The current balance owing by the app l icant is shown in the certificate of balance attached to the particulars of claim marked Annexure "C " [9] . Merits of the Application 14. The applicant states in her founding affidavit that during her marriage to her former husband they had two immovable properties including the property in Celtisdal Centurion. After her divorce the former husband took responsibility of both properties , whi l e she moved out in 2006 . At all relevant times she was under the i mpression that he would be able to take care of the financial obligations in terms of the loan agreements. [10] 15. Dur ing the sequestration of her erstwhile husband's estate in September 2009, she was requested by his attorneys to give consent fo r the sale of the immovable properties which were under his custody . The applicant states under paragraph 13 of the founding affidavit that she has no details of how the said properties were disposed of by the liquidators of her husband ' s es t a t e . She was taken by surprise when the sheriff of the court served her with the writ of execution. She laboured under the impression that the issue of the properties had been resolved . 16. The applicant f urther alleges in paragraphs 17 to 22 of the found i ng affidavit, that they only applied for a loan amount of R689 900.00 from the bank , and she does not know how the first respondent arrived at t he amount R1 160 888.66, given the fact that the immovable property was sold for R950 000.00 . [11] 17. In answer to the application, the bank has filed its opposing affidavit resisting the relief sought by the applicant. According to the bank, th e trustees in the insolvent estate of C [....] were unable to settle the bank ' s claim against the estate. As a result they resolved to realize the property in collaboration with the applicant for the sum of R640 000 . 00 [12] The proceeds of t he sale were util iz ed t o partially satisfy the bank's claim aga i nst C [....] ' s estate. 18. The bank further contends that the proceeds of the sale of the property could not ext i ngu i sh the deb t owed by the applicant. and in light thereof it seeks t o recover the amoun t reflected in th e certificate of bala nce marked "H", attached to its answering affidavit. Furthermore, the applicant and C [....] have consented under the loan agreement that the certificate of balance s i gned by the manager of the bank will constitute a prima facie proof that the duo are indebted to the bank. [13] Assessment 19. Counsel on both s ide s dealt extensive ly with what was contended to be, on the one hand, probabilities favouring the contentions of the appl i cant, and conversely, probabilities favouring the bank, that the certificate of balance serves as prima facie evidence. For purposes of my judgment I do not have to embark on the details of the argument. The matter can be resolved on the paragraphs that follow . 20. The starting point is that , it is not in dispute that the applicant consented to the sale of the property in order to settle the debt owed to the bank. The property was first sold to Sancrontron Close Corporation for the amount of R640 000 . 00, and thereafter sold for the amount of R950 000 . 00. Three issues ar i ses from the sale of the applicant ' s property . Firstly, it is not clear from the papers as to how much was the outstanding debt when the property was sold by the trustees. Secondly, I could could not discern from the papers as to how the proceeds of the sale were appropriated by the trustees, and . Thirdly, how the mortgage bond was cancelled notwithstanding the shortfall in respect of the principal debt. This, i n my view , raises some questions around the amount reflected in the certificate of balance relied upon by the bank. 21. In the Bank of Lisbon International Limited v Ven ter en 'n Ander 1990 (4) SA 463 (A), the court held that the reliance on a certificate of balance becomes problematic when other evidence emerges which cas t s doubt on the correctness of the ce rtificate. Ev i dently the property in question was purchased for R689 900.00, and so ld for R640 000 . 00 less than the value of the loan. and subsequently sold by another en t ity for R950 000 . 00. Having regard to the duplum rule th ere might be questions to be answered regarding the manner in which interest on the debt were calculated in view of the substantial amount cla i med by the bank . I n any event the certificate of balance relied on by the bank is not an absolute proof of indebtedness in every circumstance. [14] Conclusion 22. As in Bank of Lisbon, supra I weighed all the aspects I have referred to in the sca l e against the all other evidence. It is my view that there are outstanding issues which constitute good cause raised by the applicant against the bank ' s claim. These issues, in my view, casts into doubt into the correctness of the certificate relied upon by the bank . A clarity has to provided as how the quantum of its claim has been calculated taking into account the proceeds of the sale of the property. The burden on the applicant for purposes of obtaining rescission was not to show substantial defence with probability of success . It is enough to show the existence of an issue which is for trial. 23. Given my view that there are i ssues pertaining to the quantum of the bank ' s claim which needs to be answered at the trial, it is not necessary for me to consider whether the other probable defences are bona fide and have reasonable prospects of success . I am satisfied that the applicant has made out a proper case, and rescission ought to be granted. 24. In the premises, therefore, the rescission is granted. The following order is made: 1. Th applicant is granted leave to defend the action; 2. Costs will be costs in the cause of the action. P H MALUNGANA ACTING JUDGE OF THE HIGH COURT APPEARANCES: For the Applicant : Adv BL Pilusa Instructed by : Sukwa na Motshabi Inc For the Respondent : Adv B Kubeka-Manyelo Instructed by                           : Findlay & Niemeyer Inc . [1] Sectional Continuing Covering Mortgage Bond, Case-lines 004-14 [2] Warrant of Execution. Case lines 006-77 [3] Promedia Drukkers & Uitgewers (EDMS) BPK v Kaimowitz and Others 1996 (4) SA 411 al page 417; Chetty:v The Law Society of Transvaal 1985 (2) SA 756 at 765B-C. Millar JA said: "But it is clear that in principle and in the long-standing practice of our courts two essential elements of 'sufficient cause ·'for rescission of judgment by default are (i) that the party seeking relief must present aa reasonable and acceptable explanation for his default and (ii) that on the merits such party has a bone fide defence which, prima facie, carries some prospect of success." [4] Return of Service by Deputy Sheriff Dhlamini. Case lines 005-1 [5] Notice of Motion dated 11 May 2021. Case lines 006-53 [6] Para.7.1 of the Particulars of Claim. Case lines 004-7 [7] Paras 7.2-7.4. of the Particulars of Claim. Case lines004-7 [8] Para 8.2 of the Particulars of Claim. Case lines 004-8 [9] "Para 9.2 of the Particulars of Claim. Case lines 004-9. "The current balance due and payable to the Plaintiff in terms of the loan agreement is R1 160 888.66 (One Million One Hundred Sixty Thousand Eight Eight Rand and Sixty Six Cents) together with interest on. the said sum at the rate of 17% per annum·from 14 th of OCTOBER 2020, to date of payment (see certificate of balance attached hereto marked as Annexure “C ”·. [10] Paras 8-9 of the Founding Affidavit. Case lines 006-9 [11] Para 22 of the Founding Affidavit. ·'The respondent seems to be in pursuit of me as the only debtor in the circumstances. There is no transparency regarding !he sale of the properly." [12] Para 6.1 of the Answering Affidavit. Case- lines 008--7 [13] Para 23.2 of the Answering Affidavit. Case lines 008--15 [14] Trupp Investments Holdings (Pty) v Goldrick [2007] ZAGPHC 23 ; 2008 (2) SA 253 (W) at [6] sino noindex make_database footer start