By Duncan Wild on 2 February 2013

Issue
The Court will have to decide whether, in circumstances where a judgment was granted in the absence of the defendant that could allow those defendant’s home to be sold, the requirements to allow those defendants to have the judgment set aside (in a rescission application) and defend the claims should be changed or interpreted in favour of the person seeking to have the judgment overturned.

The Case
Mr Siphelo Mkebe and his wife Ms Nokuhle Mkebe (“the Mkebes“) had entered into a mortgage agreement over certain property with Absa. According to Absa they defaulted and Absa obtained a default judgment against the Mkebes.  They then brought an application to rescind that judgment, but shortly before their hearing their attorneys withdrew, according to the Mkebes, because the attorneys had not received instructions.  Mr Mkebe alleges that he attempted to attend at the hearing himself but could not find the court and the rescission application was dismissed.

A second application to rescind the dismissal of the first application was then brought in which the Mkebes alleged they were not in “wilful default” and that they had a reasonable explanation for the default (the withdrawal of their attorneys on the basis of a lack of instructions and the attempt to attend at the court) and that Absa had not complied with the National Credit Act 34 of 2005 (“NCA“) prior to obtaining judgment against them, so they had a reasonable prospect of success.

The alleged non-compliance related to the transmission of a notice in terms of section 129 of the NCA that must be sent prior to approaching a court to have the mortgaged property attached and sold. Absa does not deny that it had an agreement to send the section 129 notice to the Mkebe’s physical address under the agreement’s “domicilium” clause.  But, Absa did not send the notice to this address, rather electing to send the notice by registered post to the Mkebe’s last known postal address. The Mkebes argue that this means the judgment should not have been granted against them, and so they have a bona fide defence to the claim by Absa, and so should succeed in the rescission application.

The High Court rejected both these arguments, saying first that a failure to instruct your attorneys was not sufficient excuse to justify not defending the action, and second that the Mkebe’s had not stated they had not received the 129 notice, just that it was sent to an address not agreed in the contract between the parties. The Supreme Court of Appeal refused to grant leave to appeal against the judgment.