Benson and Another v Standard Bank of South Africa (Pty) Ltd and Others

• Jurisdiction: South Africa
• Court: Gauteng Local Division, Johannesburg
• Judge: Makhanya J, Tsoka J and Unterhalter J
• Judgment Date: 21 February 2019
• Citation: 2019 (5) SA 152 (GJ)
• Hearing Date: 21 February 2019
• Docket Number: App 5024/2018
• Counsel: Advocate Radebe for the appellants. Advocate Bhima for the respondents.

Unterhalter J (Makhanya J and Tsoka J concurring):

Introduction F

[1] The appellants seek to overturn the dismissal by Du Plessis AJ of an application for the rescission of a judgment granted by default on 1 June 2011 by Kathree-Setiloane J (the default judgment). The default judgment was obtained by the Standard Bank of South Africa Limited (Standard Bank), the first respondent in this appeal, in respect of loans G made by the Standard Bank to the appellants and secured by a mortgage bond.

[2] The default judgment granted against the appellants was for the payment of the amount of R290 942,14; interest to date of payment; an insurance premium of R228,99; and costs on the attorney and H client scale. The remaining prayers, declaring the property executable and authorising a warrant of execution in respect of the property, were postponed sine die.

[3] The Standard Bank then secured a further order before Kgomo J on 31 January 2012. That order against the appellants repeated the contents of the earlier order but, in addition, declared the subject property I executable and authorised the issuance of a warrant of execution in respect of the property.

[4] In due course the property was bought by the fourth respondent in this appeal at a sale in execution on 17 May 2012 and was registered in his name on 24 May 2013. J

Unterhalter J (Makhanya J and Tsoka J concurring)

[5] A The appellants brought an application to rescind the order of Kgomo J on 2 August 2012 (the first rescission application). The first rescission application was dismissed by Mia AJ on 13 February 2013. The appellants then launched a second rescission application against the order of Mia AJ on 6 May 2013. That application was dismissed by Weiner J on 14 October 2014. On 3 November 2014 the appellants B brought an application for leave to appeal the dismissal of their second rescission application. That application is still pending.

[6] On 8 March 2015 the appellants brought a third rescission application, this time seeking the rescission of the default judgment granted by C Kathree-Setiloane J on 1 June 2011. This third rescission application was heard by Du Plessis AJ and dismissed on 30 November 2017. On 20 March 2018 the appellants were granted leave to appeal to this court.

[7] The appellants contended before Du Plessis AJ that rescission of the D default judgment was warranted because the notice required in terms of s 129 of the National Credit Act 34 of 2005 (the NCA) had not been properly sent to the appellants prior to the Standard Bank launching its application for relief against the appellants. The appellants say in their third rescission application that the letter sent by the Standard Bank's attorneys to the appellants was addressed to '74 Kent Street, Montclare, E Randburg 2092', whereas the address chosen by the appellants in their loan agreements with Standard Bank was '74 Kent Street, Montclair 2092', which is an address in Johannesburg, and not in Randburg. Accordingly, proper notice was not given in terms of s 129 of the NCA, and the application that was brought by Standard Bank for the default F judgment was a nullity, and the default judgment stands to be rescinded because it was erroneously sought and granted.

[8] Du Plessis AJ dismissed the third rescission application. The learned judge found that, although the s 129 notice was forwarded to the wrong address, the notice was received by the appellants when the Standard Bank G brought its application for a money judgment and consequential relief against the appellants. The failure to send the notice was only a dilatory defence that was cured when the Standard Bank's application was served on the appellants. That being so, Du Plessis AJ reasoned, the default...