Dead wife could not have witnessed summons being served by the Sheriff, the court found in ordering a bank to return a man's repossessed vehicle.
Image: File
Nedbank must return a repossessed Nissan Navara after the owner claimed he knew nothing about the pending legal action, while the Sheriff claimed the court documents were served on him in the presence of his wife - who turned out to have died a decade earlier.
Following this bungling of the legal proceedings, the Gauteng High Court, Johannesburg overturned the earlier default judgment and ordered the bank to this time serve summons on the owner in terms of the court rules.
Refilwe Paul Mokhwesana earlier concluded a sale agreement with Nedbank for the purchase of a 2021 Nissan Navara. Mokhwesana was required to make monthly installment payments into Nedbank’s account. Nedbank claimed that he had fallen in arrears with his payments and in March last year obtained default judgment against him.
In terms of the judgment, the purchase agreement was cancelled and Mokhwesana (in his absence) was ordered to return the vehicle. Following investigations, it had emerged that Mokhwesana’s account had fallen in arrears due to a fraudulent debt reviewing listing. This halted debit orders, but the payments later resumed after the fraud was discovered. Nedbank, nevertheless, obtained default judgment against him.
Mokhwesana said he only became aware of the legal proceedings and the subsequent judgment against him when the Sheriff came to repossess his vehicle. Nedbank, in opposing the rescission application, presented a confirmatory affidavit from the Sheriff to the court to prove that the Sheriff served the documents on Mokhwesana in the “presence of his wife”.
Mokhwesana, on the other hand, handed his wife’s death certificate to the court to prove that she had died more than a decade ago. The installment sale agreement relied on by Nedbank also recorded him as a widower.
Mokhwesana was adamant that he did not receive service of the process leading to Nedbank obtaining judgment against him. He also pointed out that after the fraud relating to his account was discovered, Nedbank re-submitted debit orders to his bank, which were paid each month. Thus, there was no need for Nedbank to obtain judgment, he argued.
The court noted that Nedbank continued to debit Mokhwesana’s account, specifically in the last four months leading to the date of the court order. Yet the bank maintained that he was still in arrears for the time when he fell victim to fraud resulting in a fraudulent reporting to Nedbank that Mokhwesana was in debt review.
Acting Judge K Mvumbu remarked that this matter stands to be resolved on Mokhwesana’s version, and this means that the court finds there is clear and satisfactory evidence that he was not personally served.
This conclusion is reached on the grounds that the sale agreement records him as a widower and the fact that he did hand disclosed his wife’s death certificate to the court. “It is not plausible that the Sheriff could have served the process personally upon Mokhwesana in the presence of his wife who died in 2014,” the judge said.
He added that Nedbank could not genuinely have believed that Mokhwesana was personally served. To harbour such belief, Nedbank would have to accept that it failed in its FICA verification. The judge questioned how the bank could have, under these circumstances, persisted with its opposition to the rescission application.
zelda.venter@inl.co.za