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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE CIRCUIT LOCAL DIVISION, EAST LONDON

NOT REPORTABLE

CASE NO: EL 1472/12

                   ECD 3188/12

In the matter between

MATTHEWS MZIWOXOLO NTWENDALA                                                           1^st Applicant

PRISCILLA NTWENDALA                                                                                   2^nd Applicant

and

NEDBANK LIMITED                                                                                              Respondent

JUDGMENT IN RESPECT

OF APPLICATION FOR

RESCISSION OF SUMMARY JUDGMENT

HARTLE J

1. This is an application for the rescission of an order made by Mey AJ on 2 April 2014 pursuant to which summary judgment was entered in favour of the plaintiff (the present respondent) against the applicants.[1]

2. The applicants’ indebtedness giving rise to the action arose in terms of a loan agreement secured by a mortgage bond.  The respondent alleged in the main action that the applicants had breached the agreement by falling into arrears with the bond repayments and had been in arrears for a period in excess of twenty business days in regard to their obligations under the agreement and bond.  As a result it invoked the acceleration clause and claimed payment of the full balance outstanding on the loan, finance charges, costs and all other charges as well as an order seeking to declare the bonded property executable after giving the prescribed statutory notice in terms of section 129(1)(a) of the National Credit Act, No. 34 of 2005, a step which was also a pre-requisite in terms of the parties’ loan agreement.  The respondent in its particulars of claim also draw the applicants’ notice to the provisions of section 26(3) of the Constitution to remind them of their right to have access to adequate housing and invited them, in the event of them claiming that the ancillary order for execution would infringe that right, to place before the court the necessary information supporting such claim.

3. After the applicants gave notice of their intention to defend the action, the respondent timeously launched a summary judgment application set down for hearing on 22 January 2013.  The application was opposed by the applicants who delivered notice to oppose on 14 December 2012, reserving the right therein to file opposing papers “in due course and within the prescribed period”.  Only on 29 January 2013 did they file their opposing affidavits.  Evidently no application for condonation was made by them concerning this delay and several further postponements were ostensibly effected at their instance.  On 19 March 2013 the matter was finally postponed to 2 April 2013 for hearing.  The first applicant, who had not caused heads of argument to be filed neither appointed counsel to represent them on 19 March 2013, brazenly asserted in his replying affidavit in defence of their not been ready on that day - despite the provisions of paragraph 8(b) of the Joint Rules of Practice of this division, that “there is no legal requirement that heads of argument should be filed in an application for summary judgment”.  These are but some examples of the applicants’ disregard for the rules of this court, an attitude which appears to have prevailed throughout the conduct of the matter.  When the rescission application was set down for hearing before me on 20 February 2014 there was again simply no appearance for the applicants.  At my insistence counsel for the applicants was briefed at the last minute and an arrangement made for the matter to be argued before me the following morning.

4. The limited basis for the applicants’ opposition in the summary judgment, apart from an in limine objection that the High Court lacked jurisdiction which was patently without merit,[2] was that they had been “deprived of (their) right in terms of section 129(1)(a) of the National Credit Act”.  The basis for this, so they claimed, was that after responding to the notice - which the first applicant incidentally also complained did not reach him timeously,[3] with an offer to settle and, when the negotiations were still up in the air, as it were, the respondent prematurely issued the summons.  They contended that the untimely launch of the action precluded them from exercising their right to approach a debt counselor and that they wanted such an opportunity.

5. As for prospects of payment, the first applicant explained that the second applicant had been unfairly dismissed from her employment on 6 October 2009 already, from which date he conceded the loan account had fallen into arrears.  She had challenged her dismissal in the Labour Court[4] and was confident of a successful outcome in that forum.[5]  They intended, upon receipt of her backpay/compensation in that matter, to either settle their arrears or make payment of the full balance outstanding on the bond.  Nay a complaint was raised at that point that the amount claimed was incorrectly stated or not due to the respondent.

6. Quite a different picture presented itself in the application for rescission which was issued on 14 May 2013.  The applicants’ defence was substantially enlarged upon in the first applicant’s founding affidavit to include a number of technical objections (all of which in my view are without any merit),[6] but in the main it was repeated that the applicants had been denied the protection of section 129(1)(a) of the National Credit Act.  The applicants claimed that the notice which the respondent had purported to issue in this regard was putative.  In this regard the first applicant averred that the demand had not been delivered to them at their selected address, but rather the respondent had purported to dispatch it to them by registered mail at their domicilium “in contravention of (their) contract” which required service to be effected by ‘delivery’ at the property.  Whilst not denying that the second applicant had retrieved the notice from the post office on 20 August 2012, he submitted that he had not received notice in the manner prescribed by the loan agreement.  As such service of the requisite demand (in satisfaction of the mandatory requirements postulated by sections 129 and 130 of the National Credit Act) was null and void.

7. The first applicant suggested further, on the basis of a difference in the instalment amount referred to in the Certificate of Balance and the instalment cited in the particulars of claim as being the amount initially agreed upon in the parties loan agreement, that they could not be in arrears with the bond repayments, which contradicts his admission in the affidavit filed in support of his and the second applicant’s opposition to the summary judgment application that they (who were liable jointly and severally) had fallen substantially into arrears in respect of the repayment of the bond instalments since the second applicant had lost her employment in 2009 already.[7]  He claimed, that assuming the section 129(1) notice to have been validly served, he had responded positively thereto by making an offer and “not rejecting the respondent’s proposals”.  Their intention thereby, so he averred, was to resolve between them any dispute under the loan agreement without resorting to court and to agree on a plan to bring the payments under the agreement up to date “if any”.  He asserted with hindsight, that it was in doubt that the applicants were in arrears with their payment even though as indicated above, he had not suggested before that any dispute existed).  These settlement proposals were “unlawfully ignored” so he contended.

8. Concerning the provisions of section 26 of the Constitution, the first applicant relied upon the facts of his wife’s dismissal from work and the intervening challenge before the labour court (without going into any detail concerning any further developments which had ensued over the lengthy passage of time since that litigation was first issued); the fact that an offer was made which was not responded to; their desire to avail themselves of all their rights in terms of the loan agreement (in particular clause 21 thereof),[8] and the denial by the respondent of this opportunity by prematurely resorting to formal litigation and thus closing the doors on them.  He added in this connection that the mortgaged property is their primary residence and that they will have nowhere to go if effect is given to the respondent’s rights to execute against the property.

9. Concerning the applicants’ absence when summary judgment was entered against them, the first applicant tendered a very limited and incidental explanation for his default on 2 April 2014.[9]  The second applicant (except to confirm the contents of his affidavit in a supporting affidavit which appears on the face of it not to have been properly commissioned)[10] offered no separate reason for her absence from court.  The first applicant explains that he was embarrassed by the action against him and his wife which in turn led to him being ill.[11]  He was present at court on 19 March 2013[12] when he started sweating and felt dizzy.  As a result he had to leave court abruptly to visit a doctor before the matter was postponed.  A medical certificate was attached in substantiation (“MMN 2”).  This was issued by a doctor in King William’s Town booking the first applicant off for one day, ostensibly for diabetes.

10. He alleges that after 20 March 2013, he visited court to check the court file to establish what had happened in his absence.  He was told that the file was “in Port Elizabeth” (sic) and that he would be informed once it was back in East London.  He kept on visiting the registrar and “could not find the file” until he was told (he does not say exactly when) that on “3^rd April 2013” default judgment had been obtained against “(him and his wife)”.  He immediately communicated with the respondent’s attorneys who agreed that he would bring the present application on 8 May 2013.  A further delay ensued in drafting the papers as he needed to obtain senior counsel’s opinion, an objective that was frustrated because counsel did not revert in time and he filed the papers without such assistance in any event. 

11. The respondent presented a different picture of the events of 19 March 2013, a version I am constrained to accept on the basis of the trite principle in Plascon-Evans Ltd v Van Riebeeck Paints (Pty) Ltd[13] concerning the resolve of disputes of fact in affidavits.  This version is that the first applicant arrived at court without counsel having been briefed and after being informed by the respondent’s attorneys that they would not agree to a postponement.  He left during the course of the morning complaining about the amount of time that he had wasted sitting at court and advised that he needed to see the doctor regarding his “high blood sugar”.  This he appears from the medical certificate to have done - although no time is indicated therein, at a medical practice in King William’s Town where he ostensibly conducts his practice, despite his residence being in East London.  When the matter was later called the court was informed of the first applicant’s absence and the stance which he was adopting.  The practitioner present at court on behalf of the respondent, Leah Kaschula, called the first respondent at the instance of the court who indicated that he was unable to return to court and requested that the matter be postponed.  Upon receiving the medical certificate Acting Judge Mey postponed the matter for a period of two weeks to allow the first applicant to present argument.

12. This version is entirely consistent with the order which the court issued on 19 March 2013 granting the continuance until 2 April 2013 and ordering the applicants to pay the wasted costs occasioned by the postponement.  It also perhaps explains why the first applicant could not bring himself to simply ask the respondent’s attorneys what had happened to the matter after he hastily left court during the morning.  Although he might have absconded in his personal capacity, he is an attorney and officer of this court and it is unacceptable that he (in his capacity as principal of Ntwendala Attorneys) did not engage his opponents concerning the status of the matter after 19 March 2013.  It was not their duty as contended for by him in his replying affidavit, to have served the order on him.  It is also not the registrar whom he should have enquired from, but the respondent’s attorneys who would have been in the know.  There was a particular imperative on him to confirm the position, given that he had forced the respondent’s hand by coming to court unprepared without having filed heads of argument or having briefed counsel, and then (even on his own version) having abruptly left court because of his health issues. 

13. It is further improbable in my view that the registrar’s staff would not have been able to bring him up to date concerning what had transpired in the matter or that they had informed him that the file had gone to “Port Elizabeth” (sic).[14]  A simple call to the judge’s clerk would in any event have established the proper position and it is not understood why he did not make such an enquiry.  I find his explanation in this regard weak and unconvincing and, from the point of view that he is an officer of the court with a particular duty to it to act in the interests of its offices administration, entirely unacceptable.

14. Be that as it may, however, it appeared to be accepted that the applicants had “not participated” in the proceedings by their absence from court when the matter was called on the motion court roll on 2 April 2012.  The distinction is important because in the absence, of a consideration of the merits and the defendant also being in default, the grounds upon which a judgment can be rescinded are virtually unlimited, the only requirement being that “good cause” be shown for the rescission.  This envisages a reasonable and acceptable explanation for the default together with the disclosure of a bona fide defence which prima facie carries some prospect of success.[15]

15. I have dealt above with the paucity of the applicants’ explanation of their default, but nonetheless deal with the crux of their defence; namely that the respondent had failed to comply with the mandatory provisions of section 129(1)(a), of the National Credit Act, read together with section 129(1)(b) which further provides that, subject to section 130(2), a credit provider may not commence any legal proceedings to enforce the agreement before first giving notice to the consumer as contemplated in section 129(1)(a) or section 86 (10), as the case may be and meeting any further requirements set out in section 130.  These sections must be read in the context that the National Credit Act provides for significantly greater consumer protection than that afforded by its predecessors, the Credit Agreement and Usary Acts, which protection is to be secured by strict adherence to procedural requirements. 

16. The relevant sections are produced below to facilitate an understanding of the significance of the section 129(1)(a) notice as a  mandatory procedural requirement before debt enforcement:

129.   Required procedures before debt enforcement.—(1)  If the consumer is in default under a credit agreement, the credit provider—

(a)       may draw the default to the notice of the consumer in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date; and

(b)       subject to section 130 (2), may not commence any legal proceedings to enforce the agreement before—

(i)          first providing notice to the consumer, as contemplated in paragraph (a), or in section 86 (10), as the case may be; and

(ii)         meeting any further requirements set out in section 130.

(2) – (4) Not relevant for present purposes.

130.   Debt procedures in a Court.—(1)  Subject to subsection (2), a credit provider may approach the court for an order to enforce a credit agreement only if, at that time, the consumer is in default and has been in default under that credit agreement for at least 20 business days and—

(a)       at least 10 business days have elapsed since the credit provider delivered a notice to the consumer as contemplated in section 86 (9), or section 129 (1), as the case may be;

(b)       in the case of a notice contemplated in section 129 (1), the consumer has—

(i)          not responded to that notice; or

(ii)         responded to the notice by rejecting the credit provider’s proposals; and

(c)       in the case of an instalment agreement, secured loan, or lease, the consumer has not surrendered the relevant property to the credit provider as contemplated in section 127.

(2)  In addition to the circumstances contemplated in subsection (1), in the case of an instalment agreement, secured loan, or lease, a credit provider may approach the court for an order enforcing the remaining obligations of a consumer under a credit agreement at any time if—

(a)          all relevant property has been sold pursuant to—

(i)         an attachment order; or

(ii)        surrender of property in terms of section 127; and

(b)       the net proceeds of sale were insufficient to discharge all the consumer’s financial obligations under the agreement.

(3)  Despite any provision of law or contract to the contrary, in any proceedings commenced in a court in respect of a credit agreement to which this Act applies, the court may determine the matter only if the court is satisfied that—

(a)       in the case of proceedings to which sections 127, 129 or 131 apply, the procedures required by those sections have been complied with;

(b)       there is no matter arising under that credit agreement, and pending before the Tribunal, that could result in an order affecting the issues to be determined by the court; and

(c)       that the credit provider has not approached the court—

(i)          during the time that the matter was before a debt counsellor, alternative dispute resolution agent, consumer court or the ombud with jurisdiction; or

(ii)         despite the consumer having—

(aa)      surrendered property to the credit provider, and before that property has been sold;

(bb)      agreed to a proposal made in terms of section 129 (1) (a) and acted in good faith in fulfilment of that agreement;

(cc)      complied with an agreed plan as contemplated in section 129 (1) (a); or

(dd)      brought the payments under the credit agreement up to date, as contemplated in section 129 (1) (a).

(4)  In any proceedings contemplated in this section, if the court determines that—

(a)        the credit agreement was reckless as described in section 80, the court must make an order contemplated in section 83;

(b)       the credit provider has not complied with the relevant provisions of this Act, as contemplated in subsection (3) (a), or has approached the court in circumstances contemplated in subsection (3) (c) the court must—

(i)          adjourn the matter before it; and

(ii)         make an appropriate order setting out the steps the credit provider must complete before the matter may be resumed;

(c)       Not relevant.

(d)       Not relevant.

(e)       the credit agreement is either suspended or subject to a debt re-arrangement order or agreement, and the consumer has complied with that order or agreement, the court must dismiss the matter.

17. The National Credit Act thus prescribes a two stage approach to debt enforcement by distinguishing between procedures which must be complied with before debt enforcement (contained in section 129) and further procedures that are dealt with as debt procedures in court (contained in section 130).

0.35in; line-height: 150%">18. The purpose of the section 129(1)(a) notice has been held to be limited to the two aspects referred to in the section, namely to resolve a dispute under the agreement, or to develop and agree on a plan to bring the agreement up to date prior to enforcement of a credit agreement and in order to avoid enforcement in the event that the matter is successfully resolved.  In Sebola v Standard Bank of South Africa Limited[16] the court noted that the procedures mentioned in section 129(1)(a) “are designed to help debtors to restructure their debts, or find other relief, before the guillotine or cancellation or judicial enforcement falls”.  This tallies with one of the important objectives of the National Credit Act, namely the protection of the consumer, in this manner against costly and protracted litigation by exploring non-litigious option of purging the consumer’s default.

19. The response envisaged by section 129(1)(b) is a response by the consumer to the proposal that the consumer avail himself of the opportunity to refer the specific credit agreement to one of the four enumerate agents with the specific intent either to resolve any dispute under the agreement or to develop and agree on a plan to bring the payments under the agreement up to date.[17] 

20. Once the credit provider has made the proposal the consumer ignores the notice at his peril.  He is also at risk if he responds to the notice by “rejecting the credit provider’s proposals”.  On a plain reading in my view this means he has either informed the credit provider unequivocally that he will not consult one of the four enumerated agents placed at his disposal by the machinery of the National Credit Act to assist him (in the manner designated by the act) to resolve any dispute under the credit agreement or develop and agree on a plan to bring the payments under the agreement up to date, or by his conduct rejects the proposal of the credit provider to avail himself of his remedies under the section.  The meaning of the word ‘proposal’ in this section is in my view not to be confused with any settlement proposals made to and fro which may have resulted from the consumer availing himself of the indicated assistance to develop and agree on a plan envisaged by the subsection and bring the payments under the agreement up to date.  It is not that proposal which the consumer must reject before which the credit provider is entitled to enforce the agreement.

21. This is fortified by the provisions of section 130(3)(c).  The effect of these provisions is that, firstly if read cumulatively sections 130(3)(b), 130(3)(c)(ii)(bb) – (dd) and section 130(4)9b) the consumer avails himself of the assistance envisaged by section 129(1)(a) this will stave off the continued enforcement of the debt; or defer it, “during the time that the matter (is) before a debt counselor, alternative dispute resolution agent, consumer court or the ombudsman with jurisdiction”.  If the consumer has “agreed to a proposal made in terms of section 129(1)(a) and (has) acted in good faith in fulfillment of that agreement” (in other words the agreement which is the product of the referral to one of the enumerated entities).  This would be a further basis upon which the court would b precluded from enforcing the agreement.  Further, if the consumer complies with an agreed plan contemplated in section 129(4)(a) this would constitute a further basis upon which the court would be precluded from enforcing the agreement, obviously too where the payments are brought up to date as the default would then cease to exist.

22. To return to the applicants’ defence in this matter, regarding the required procedure before debt enforcement the fist applicant alluded to paragraph 21 of the parties’ loan agreement, which is largely in conformity with the statutory provisions prescribed in section 129 and 130 of the National Credit Act. The first applicant also relied on paragraph 18 of the loan agreement concerning the method of notification.  These provisions are as follows:

“18.     ADDRESS FOR NOTICES

18.1     Whenever a party to this Agreement is required or wishes to give legal notice to the other party for any purpose contemplated in this Agreement, the Act or any other law, the party giving notice must deliver that notice to the other party at the address of the other party as set out in clause 2 of this Agreement or at the address most recently provided by the recipient in accordance with clause 18.1.

18.2     Either party to this Agreement may change its address for the purpose of this clause by delivering to the other party a written notice of the new address by hand, registered mail or electronic mail, if that other party has provided an email address.

18.3     Unless otherwise provided by this clause or the Act, a notice, order or other document that, in terms of the Act, must be served on either party to this Agreement will have been properly served when it has been either delivered to that party or sent by registered mail to that party’s last known address.”

23. To dispense with the applicants’ contention that the notice was null and void for want of service in the manner designated by this clause in the loan agreement, there is simply no merit in this defence.  The excerpt of the agreement quoted above clearly envisages that proper service of the notice would have been effected where it had been “either delivered to that party or sent by registered mail to that party’s last known address”.  In any event the notice which was sent by registered mail to the applicants’ elected domicilium was, by the first applicant’s own admission, collected by the second respondent on 20 August 2012 and responded to by the first applicant on their behalf (acting as Ntwendala Atorneys) by 6 September 2012.  Indeed by 2 September 2012 already Ntwendala Attorneys addressed the respondent’s attorneys to request a settlement figure which was provided (and not at all challenged by the applicants) by 6 September 2012.  In the request for same Ntwendala Attorneys stated their clients’ intention thereby being “to (pay) off the whole debt to enable (them) to sell (the property) to someone else as it (had) latent defects which will never be repaired as the (house) was built on a fountain”.  There was no suggestion in any of the correspondence whatsoever that there was any dispute under the agreement (in the sense contended for by section 129(1)(a) of the National Credit Act) or that the applicants were desirous of developing or agreeing on a plan to bring the payments under the agreement up to date on the basis envisaged by section 129(1)(a).  On the contrary the applicants simply wanted to pay off the whole balance.  This was also the impression created by Ntwendala Attorneys in their correspondence dated 6 September 2012 in which they requested the settlement amount since they intended to settle it “without jumping any (hurdles)”.  The first and amended offers put forward on their behalf (the last one was dated 24 October 2012) also proposed payment (albeit of a limited sum of R700 000.00) “in full and final settlement (in the first offer by 30 October 2012 and the last by 30 November 2012) all inclusive”.

24. Concerning the chain of events which evidently was prompted by the section 129(1)(a) notice, the first applicant was particularly coy about how the respondent dealt with the offer, leaving the impression at first that the settlement offer which he made had simply been ignored.  In this regard the first applicant was somewhat uncharitable with the truth.  The section 129(1)(a) notice addressed by the respondent’s attorneys to the applicants invited them to avail themselves of the statutory remedy at their disposal, to contact the attorneys directly to discuss any difficulties they were experiencing in meeting their responsibilities, and to make an appropriate arrangement.  The first applicant disingenuously suggests in the founding affidavit that the respondent failed in its duty to “consider” the offer before instituting legal action.  He also sought to create the impression (for the first time in the rescission application) that he and the second applicant intended to resolve a dispute under the loan agreement since the first applicant had “raised issues with regard to the … arrears between (them) as well as material contradictions”, without re-sort to court an opportunity which had now been denied them by the respondent’s premature action.  So too it was suggested the respondent had breached the parties’ loan agreement by “failing to engage with (them) directly”, neither had it developed and agreed with them to bring any payments under the agreement that might (not were – so it was now as served) be due up to that date.

25. What the applicants failed to disclose however (calculatingly in my view) was that the respondent’s attorneys had responded to Ntwendala Attorneys on 6 September 2012 to provide the payment transaction history in respect of the agreement from January 2011 to that date, to advise them that the respondent was not under any legal obligation to concern itself with the applicants’ co-incidental complaint regarding latent defects, and to make it clear that absent the receipt of settlement proposals by 7 September 2012 ,they held instructions to proceed with the issue and service of summons; again on 27 September 2012 to point out that the applicants’ settlement offer of R700 000.00 was short of the full outstanding balance then owing in the sum of R817 957.87; and on 31 October 2012 to reject the offer and to make a counter proposal of R740 000.00 which the respondent was prepared to accept subject to the amount being approved by its head office.  The applicants’ response to this last bid to settle the matter without resort to court was invited within a period of ten days from the date of the last letter failing which the applicants were warned that the respondent would “proceed further herein”.  The summons was ultimately issued against the applicants on 14 November 2012. 

26. To contend against this background that the applicants were “ignored by the bank (the respondent) which rushed to court so as to sell (their) house” is in my view a blatant untruth.  In the first applicant’s replying affidavit he sought to suggest that he responded to the respondent’s attorneys last letter dated 31 October 2013 “as they could not resolve the whole issue of the whole outstanding bond because (he) raised certain issues about the house”, but attached no further correspondence in substantiation of this averment.  Again on the basis of the Plascon-Evans Rule I am constrained to accept the respondent’s version that its attorneys responsibly and in good faith negotiated with the applicants to preclude the issue of summons, but that it was ultimately obliged (and indeed entitled to) enforce the credit agreement.  In the absence of any evidence that the applicants were genuinely interested in settling on the sum suggested in the respondent’s counter-proposal, I must accept that there was no further basis upon which the respondent could be expected to defer the issue of the summons.  On the contrary every indication is that the applicants were opportunistically employing one delaying tactic after the other.  Gone now was the suggestion first mentioned in the applicants’ answering affidavits filed in the summary judgment application that the second applicant realistically expected in the labour litigation to be reinstated and compensated arising therefrom.  Similarly no explanation was put forward in the first applicant’s replying affidavit filed in the present application on 19 November 2013 (more than a year later) why, if the applicants seriously intended to make payment of the amount proposed in the respondent’s counter proposal, this was not done (or tendered) in the intervening passage of time.

27. In the result in my view the applicants’ defence carries no prospects of success.  The applicants have further failed to show on the evidence any other basis upon which it is sufficient to conclude that there is nevertheless doubt that the respondent has an unanswerable case.[18]  On the contrary there is to my mind no reason to find that the summary judgment was erroneously granted.

28. In the premises the applicants must fail in their application.

29. There remains a final aspect to be dealt with and that is the applicants’ contention that the ancillary order for execution infringes upon their right to adequate housing.  Having preferred the respondent’s version of events however concerning how the applicants responded to the section 129(1)(a) notice, there is no merit in their complaint of the respondent having obtained the judgment by illegitimate means.  The fact that the property is the primary residence of the applicants is not the only deciding factor.  The applicants agreed that the property would be put up as security in respect of the monies advanced on loan.  The respondent followed the necessary procedures before enforcing the agreement and was entitled to summary judgment under the circumstances.  Far from being honest with the court, the first applicant has employed every trick in the book, as the saying goes, to delay the inevitable.  For example he opportunistically raised matters in the rescission application which were not in issue in the summary judgment, incrementally adapting the applicants’ case to suit his circumstances.  The applicants have further by these devices and to sleight of hand managed to buy time which would otherwise not have been afforded of them in the process.  Far from using this opportunity to in fact meet payment of the arrears, it appears that no payments have been made since the issue of the section 129(1)(a) notice, neither has any explanation been tendered by the applicants why in the intervening passage of time they have not paid.

30. Although the second applicant was alleged to be unemployed the first applicant conducts a legal practice from which he no doubt derives an income.  I accordingly have no sympathy with them in the immediate execution of this court’s order dated 2 April 2013.

31. As for costs, I am inclined to agree with the submissions of Ms Watt on behalf of the respondent that this is one of those matters in which the applicants deserve to be censured by a costs order on the attorney and own client scale and I intend to make such an order.

32. In the result the following order issues:

(1) The application is dismissed with costs on the scale of attorney and own client.

_________________

B  HARTLE

JUDGE OF THE HIGH COURT

DATE OF HEARING  :        21 February 2014

DATE OF JUDGMENT:       10 April 2014

 

Appearances:

For the appellant:  Mr Kubukeli instructed by Makhanya Attorneys, East London, ref. Mr Madikiza.                                  

For the respondent: Ms Watt instructed by Bate Chubb & Dickson Incorporated, East London, ref. Mr Chambers.

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