Riddles v Standard Bank of South Africa Ltd

• Jurisdiction: South Africa
• Judge: Rabie J and Murphy J
• Judgment Date: 09 February 2009
• Counsel: JPF de Klerk for the appellant. Z Khan for the respondent.
• Hearing Date: 05 February 2009
• Citation: 2009 (3) SA 463 (T)
• Court: Transvaal Provincial Division
• Docket Number: A 1107/2006

Murphy J: A

[1] This is an appeal against the judgment of the magistrate, Mr JM Setlhabi, for the District of Pretoria, delivered on 6 July 2006. The magistrate's judgment was given in pursuance of an application for a rescission of a default judgment obtained by the respondent on 20 December 2004. B

[2] The respondent, the Standard Bank of South Africa Ltd, issued summons against the appellant out of the Pretoria magistrates' court on 17 May 2004 and claimed payment of the sum of R112 443,45.

[3] The appellant filed his application for rescission of the default C judgment together with an application for condonation of the late filing of the application on 2 June 2006. The magistrate in a brief judgment dismissed the application with costs. The appellant appeals against that decision.

[4] It is alleged in the particulars of claim that the appellant was issued D with a credit card, a Standard Bank Mastercard, by the respondent. The card was issued on certain terms and conditions, which the appellant accepted. There is some dispute about the exact terms of the agreement, which need not detain us. The card, amongst other things, entitled the appellant to carry out transactions with merchants, and the bank would pay the merchant on the appellant's behalf and debit the amount E concerned to the credit card account. The appellant then was obliged to repay the amounts to the bank, together with interest on credit balances, at the rate advised by the bank which would send monthly statements to the appellant reflecting the total debit or credit balance on the card at the statement date and stipulating the minimum payment due. The arrangement F was the well-known, standard credit card arrangement conducted in the ordinary course of business. In terms of the standard terms and conditions, the defendant consented to and submitted to the jurisdiction of the magistrates' court in respect of all actions or other proceedings arising out of the agreement.

[5] It is alleged in para 7 of the particulars of claim that from time to time G in the period between 16 November 1998 and 5 July 2000 the appellant presented the card to merchants for the purchase of goods or services and obtained advances on the strength of the card from the plaintiff to the value of R112 443,45. It is further alleged that, despite demand and the amount being due and payable, the defendant failed or refused to pay H the amount due.

[6] The return of service indicates that on 24 May 2004 the summons was served by affixing it to the principal door of the address chosen by the appellant as his domicilium citandi et executandi. In terms of rule 9(5) of the Magistrates' Courts Rules it shall be sufficient service to affix a copy I of a summons to the outer or principal door of the residence chosen for service when the sheriff is unable to effect service on the defendant or any other responsible person personally.

[7] When the appellant failed to file an appearance to defend, default judgment was taken against him on 20 December 2004. The appellant, J

Murphy J

A as I have mentioned, filed an application for rescission of the default judgment on 2 June 2006.Murphy J

[8] Rule 49 of the Magistrates' Courts Rules provides that a party to proceedings in which a default judgment has been given may within 20 days after obtaining knowledge of the judgment serve and file an B application to court for a rescission of the judgment and the court may, upon good cause shown, or if it is satisfied that there is good reason to do so, rescind the default judgment on such terms as it may deem fit.

[9] The requirement of good cause normally will be satisfied if there is evidence of the existence of a substantial defence, which the defendant C intends to prosecute conscientiously in the event of the judgment being rescinded. The requirement that the applicant for rescission must show the existence of a substantial defence does not mean that he must show a probability of success in the trial or principal motion: it suffices if he or she is able to show a prima facie case, or the existence of an issue which D is fit for trial. In other words, it will be adequate for the purpose of granting rescission if the applicant sets out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case, but the grounds of defence must be set forth with sufficient detail to enable the court to conclude that there is a bona fide defence, and that the application is not made merely for the E purpose of harassing the respondent. If the merits of the action have been fully dealt with on the pleadings, and if it appears that the probabilities with reference to the existence of an alleged prima facie defence are manifestly in favour of the respondent, this is a consideration which the court may properly take into account - vide Du Plessis v Du Plessis F 1970 (1) SA 683 (O). However, it is important in this latter respect for the court to keep in mind that the primary requirement for rescission is not that the applicant show the probability of success in the trial; it is enough that he point to an issue which is deserving of being tried.

[10] Rule 49(3) requires the applicant for rescission to set out the G reasons for his absence or default. In this regard the applicant must furnish an explanation for his default sufficient to enable the court to understand how the default came about and to assess whether his conduct and motives were reasonable. The wilful or negligent nature of a defendant's default is one of the various considerations which a H magistrate is obliged to take into account in the exercise of his discretion to determine whether or not good cause is shown.

[11] In his application before the magistrate the appellant sought condonation for the late filing of the rescission application outside the 20-day period. He averred that on 14 March 2006 he received documentation I indicating the respondent's intention to attach and execute against his property. It is common cause that the application was only filed on 2 June 2006. On my calculation...