Mabuza v Nedbank Ltd and Another

• Jurisdiction: South Africa
• Judge: Mavundla J
• Judgment Date: 26 June 2014
• Citation: 2015 (3) SA 369 (GP)
• Docket Number: 67456/2010
• Hearing Date: 22 April 2014
• Counsel: O Ben Zeev for the applicant. HJ Smith for the first respondent. No appearance for the second respondent.
• Court: Gauteng Division, Pretoria

Mavundla J: G

[1] The applicant sought an order rescinding the judgment and order granted by default on 4 January 2011, in favour of the first respondent against the second respondent for payment of an amount of R65 543,80 together with interest thereon as well as costs, and declaring H the immovable property, Stand 4260, Ext 5, Embalenhle, executable.

[2] It is trite that the question of granting rescission is a matter in the discretion of the court. I am of the view that, in the exercise of my discretion, I must grant rescission to the applicant, for the reasons set out hereinbelow. In this regard this court is exercising its inherent common-law powers, which are not limited to but go beyond those mentioned in I rule 31 and rule 42(1). [1]

[3] The court has inherent jurisdiction in terms of the common law to set aside a judgment on grounds of fraud. In the matter of Gollach &

Mavundla J

Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and Others A [2] it was held that, like any contract (and like any order of court), a transactio may be set aside on the ground that it was fraudulently obtained or by mistake where the error was justus. In the matter of Schierhout v Union Government [3] De Villiers JA held that:

'Now a final judgment of a court of law being res judicata is not to be B lightly set aside. On the other hand it stands to reason that a judgment procured by the fraud of one of the parties whether by forgery, perjury or in any other way such as fraudulently withholding material documents, cannot be allowed to stand. That was the Roman law (C 7.58), and that is our law (Voet 42.1.28).' C

[4] According to the undisputed version of the applicant, she was the original titleholder of Stand 4260, Ext 5, Embalenhle. She has been, and still is, residing at the said stand since 1991. She purchased the immovable property for an amount of R45 000. She subsequently D sought and obtained a loan from a financial institution by the name of Brusson Finance CC (Brusson) for an amount of R65 000. She subsequently signed and faxed back certain documents which were remitted to her. She assumed that the documents she signed were part of the loan application. She only received R35 000 of the loan amount she had been granted. She was requested to make monthly payments into the account of Brusson. The initial monthly instalment towards repayment of the E loan was an amount of R983,73. This repayment amount increased to R1258,25, thus resulting in the applicant defaulting in the monthly repayment. She was then telephonically informed by Brusson that, because of her default, the property was transferred to the second respondent. She subsequently received summons from the second respondent's attorneys for the cancellation of the deed of sale, as well as F her eviction. The second respondent subsequently informed her that he did not want the property but that she must pay the mortgage with the first respondent, into his account. In a further discussion with the second respondent's attorneys she was advised to pay an amount of R12 000 towards the arrears and a further amount of R2800 for the bond. G

[5] The applicant contended that she was made to sign documents which she believed were towards the loan. It was never explained to her that the documents were in fact the purchase and sale agreement and transfer documents in respect of her immovable property. At all relevant H times she remained in the house. She never had an intention to sell and transfer her house to any person, in particular the second respondent. She contended further that the purchase and sale agreement and the transfer were obtained fraudulently.

[6] The applicant, in seeking rescission, further contended, inter alia, I that the first respondent, in granting the second respondent a loan, in

Mavundla J

A respect of which the relevant property was bonded as security, was reckless in terms of s 80 of the National Credit Act 34 of 2005 in that, at some point in time, the second respondent had 11 properties registered in his name from various banks to the value of R3 500 000. The first respondent failed to properly assess the creditworthiness of the B second respondent and therefore the natural consequence is the invalidity of the agreements in terms of s 83 of the NCA.

[7] She further contended that she had a reasonable and bona fide defence against the default judgment and writ of execution. She was not C in wilful default in opposing the judgment against her property.

[8] She further relied on Ditshego and Others v Brusson Finance (Pty) Ltd and Others (FB case No 5144/2009, 22 July 2010; [2010] ZAFSHC 68) in which the Bloemfontein High Court held that the Brusson Finance contracts were illegal and void. The scheme employed by Brusson was as D follows:

'1.

The client/homeowner temporarily transfers their property to a Brusson...