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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

 

CASE NO.: 24321/2012

Not reportable

Not of interest to other judges

Revised.

24/3/2017

In the matter between

ABSA BANK LIMITED                                                                      Respondent / Plaintiff

and

MILEN MILOUSHEV                                                                First Applicant / Defendant

NINA ENTCHEV MILOUSHEV                                            Second Applicant / Defendant

 

JUDGMENT

 

VAN DER WESTHUIZEN, A J

[1] There are two applications before me.  The first one relates to the main application for rescission of a judgment granted on 22 July 2014 in favour of the respondent/plaintiff against the two applicants/defendants and the second application relates to an application that the main application be stayed pending a referral to a tribunal that does not hold seat within the Republic of South Africa.

[2] The first application was launched during January 2015.  The second application was launched during March 2016.  The respondent/plaintiff opposes both the applications.  In view of the fact that neither of the applications was set down once all the papers were filed, the applicant applied for the enrolment of the two applications and the matter was set down on the opposed roll commencing 20 March 2017.

[3] When the matter was called on Monday 20 March 2017, there was no appearance by either the first or second applicant/defendant.  A person appeared on the first applicant’s behalf.  She is neither an attorney nor an advocate.  She did not identify herself, but merely stated that she appeared only on behalf of the first applicant/defendant.  She conceded that she is not qualified to appear on behalf of the first applicant/defendant.  She further advised that the first applicant/defendant could not appear as he was elsewhere occupied, hence her attendance at court.  She was advised that she does not have the right to appear and represent the first applicant/defendant.  She accepted that fact and requested that the matter be postponed to enable the first applicant/defendant to attend.  There was no appearance on behalf of the second applicant.

[4] The matter stood down to later in the week.  I issued a directive that in the event that the applicants/defendants would seek a postponement, a substantive application was to be served and filed by 10:00 on Wednesday, 22 March 2017 and that an opposition thereto was to be served and filed by 16:00 on that day.

[5] When the matter was called on Thursday 23 March 2017, there was no substantive application for a postponement filed.  The first applicant/defendant however appeared in person.  The second applicant did not appear, nor was there any appearance on her behalf.  The first applicant was not in a position to present any argument in respect of his two applications.  He merely advised that the person who had previously assisted him no longer was in a position to assist and that he was to obtain legal representation.  When he was so advised was not made known.  He made a feeble attempt to seek a postponement.  Senior counsel who appeared in another matter offered to assist and to converse with the first applicant/defendant.  When the matter was called thereafter, senior counsel informed me that from the discussion with the first applicant/defendant, the following appeared:

(a) The person who previously assisted the applicants was neither an attorney nor counsel, yet accepted payment for his assistance;

(b) The information that the applicants wished to place before the court was already contained in the papers filed and nothing new would come to light should a postponement be granted;

(c) No purpose would be served to postpone the matter.  Nothing new would or could be added to what is already contained in the papers;

(d) Counsel for the respondent/plaintiff was in attendance during the conversation with the first applicant.

[6] When the first applicant/defendant was asked whether he confirmed what senior counsel advised, he did not comment.  However, there was some indication from the person who attended with first applicant/defendant, and also appeared on Monday, that what counsel had conveyed to the court was not correct and again there was reference to what was stated in the founding papers.

[7] It was also clear that the first applicant/defendant did not posses the means to employ the services of legal representation.

[8] Counsel who appeared on behalf the respondent/plaintiff submitted that the present impasse was a recurring event since the inception of the main application two years ago.

[9] The vexed question is whether a postponement would assist in finalising the matter.  It is concerning that the first applicant/defendant could not address the court on his applications and in particular in respect of any of the facts on which the applications were premised, at least in respect of those facts that would by necessity fall within his personal knowledge, i.e. the reason for his default and the bona fide defence that existed at the relevant time.

[10] I am not persuaded that a postponement would assist in moving the matter to finality.  The applicants/defendants have been aware since at least March 2016 that the two applications require the court’s consideration, yet they have not taken any steps in that regard.  It is trite that the prospects of success are important when considering a request for a postponement.  At best for the first applicant, the prospects of success are slim.  Accordingly, the request for a further postponement stands to be refused.

[11] It would be sensible to deal with the second application before considering the main application.

[12] The second application seeks to have the main application stayed pending a determination of the issues by a tribunal, the International Tribunal for Natural Justice.  The status of that tribunal and its jurisdiction over the Republic of South Africa is not clear.  It certainly is not acknowledged in the Constitution of the Republic of South Africa, 1996 (the Constitution).  In terms of the Constitution, the courts of law that are established and acknowledged therein have jurisdiction to consider and decide matters between man and man and the State and man within the Republic of South Africa.  Those courts so established function in terms of national legislation as provided in Chapter 8 of the Constitution.

[13] It follows that there is no merit in the application for a stay of the main application.  That application cannot succeed. The application for a stay of the proceedings of the main application stands to be dismissed.

[14] There remains the issue of the application for rescission of the judgment granted.  I deal with that in what follows.

[15] The main issue raised in the application for rescission is that the applicants/defendants were not aware that legal action was instituted against them in terms of the provisions of the instruments relating to the loan for the purchasing the relevant immovable property.

[16] There is no merit in that submission.  The respective returns of service of the application for default judgment reflect that process was served on a co-occupier of the property, an Ms Malatji, and that the import thereof was explained to the recipient.  There is no allegation that that person was not a co-occupier or had no authority to accept service of process.  The respective returns of service in respect of the warrant of execution and notice of attachment were served on a MR Miloushev, co-occupier and ME Miloushev co-occupier respectively. In both instances the import thereof was explained.  These returns of service were attached to the answering affidavit.  Those returns of service are dated during 2013 and 2014 respectively.  It is clear from the returns of service that the “papers” were not left outside or “removed” by delinquent neighbours as claimed by the applicants/defendants.  The persons upon whom service of the warrant and notice of attachment were effected, closely resemble the applicants.  That obvious inference is not explained.

[17] The applicants allege that the respondent/plaintiff had erroneously filed a claim against the applicants/defendants.  In this regard, it is alleged that the applicants/defendants had divorced during 2007, prior to the judgment being obtained.  There is no explanation that the respondent/plaintiff had been made aware of that fact, or that the first defendant no longer had any liability in respect of maintaining the obligations in respect of the loan agreement and/or the mortgage bond registered over the relevant property.

[18] The first applicant/defendant concedes that he fell in arrears with the payment of his mortgage bond obligations.  There is no statement that he had made any further payments thereafter. He further admits that he is the owner of property situated in Cape Town.

[19] The balance of the allegations contained in the founding affidavit has no relevance to the issues to be considered in an application for rescission of a judgment.  Those allegations do not address the issue of wilful disregard of the legal process or the bona fide defence that existed at the time the judgment was granted.  I accordingly do not intend to deal therewith.

[20] In conclusion the first applicant/defendant submits that good cause has been shown and that the relief sought should be granted.

[21] The respondent/plaintiff has attached bank statements relating to the applicants/defendants.  Those clearly show that the claims in respect of continued payments by the applicants/defendants are not correct.  The last payment was made during 2012.

[22] It follows from the foregoing that the applicants/defendants have failed to:[1]

(a) Explain the default in defending the matter that led to the granting of the order of 22 July 2014 nor why the application for rescission was not brought within the prescribed time since 15 August 2014 when the judgment came to the knowledge of the first applicant/defendant;

(b) To show that the application for rescission is not male fide;

(c) To show that they have a bona fide defence to the respondent’s/plaintiff’s claim in particular in view of the admission of having no means to continue making payments in respect of the bond payments; or

(d) That there is good cause to rescind the judgment granted.

[23] In view of the foregoing, the applicants/defendants have failed to discharge the onus in respect of the requirements for obtaining a rescission of the judgment of 22 July 2014.  It follows that the application for rescission cannot succeed and stands to be dismissed.

I grant the following order:

(a) The request for a postponement is refused;

(b) The application for a stay of the main application is dismissed;

(c) The application for rescission of the judgment granted on 22 July 2014 in favour of the respondent/plaintiff against the applicants/defendants is dismissed;

(d) The applicants/defendants are to pay the costs of both applications, jointly and severally, the one paying the other to be absolved.

 

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C J VAN DER WESTHUIZEN

ACTING JUDGE OF THE HIGH COURT

 

On behalf of First Applicant:          M Miloushev (in person)

On behalf of Second Applicant:    No appearance

On behalf of Respondent:             W Naude

Instructed by:                                Strauss Daly

 

Date of hearing:  23 March 2017

Date of judgment:  24 March 2017

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