Absa Bank Limited v Baloyi and Another In re: Absa Bank Limited v Baloyi and Others (9850/2000) [2016] ZAGPPHC 1137 (26 October 2016)

Absa Bank Limited v Baloyi and Another In re: Absa Bank Limited v Baloyi and Others (9850/2000) [2016] ZAGPPHC 1137 (26 October 2016)

The court found that the applicant was not served with a notice of set down and had no knowledge of the trial date for the proceedings on 21 May 2014. The respondents failed to comply with the peremptory requirements of Transvaal Rule 7 and paragraph 6.15 of the Practice Manual, which mandate written notice of the trial date to all parties. The absence of such notice rendered the judgment of 21 May 2014 erroneously sought or granted within the meaning of Rule 42(1)(a). The court held that once this is established, rescission must follow without further enquiry into good cause. Technical objections regarding the commissioning of affidavits and failure to join third parties were dismissed...

Citation
[2016] ZAGPPHC 1137
Parties
Applicant: Absa Bank Limited; Respondent: Baloyi Rasimate Thomas; Respondent: Baloyi Jane Mihloti; Plaintiff: Absa Bank Limited; Defendant: Baloyi Rasimate Thomas; Defendant: Baloyi Jane Mihloti; Defendant: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 October 2016
Case Number
9850/2000
Procedural Posture
Rescission Application / Application for Rescission of Judgment Granted in Absence of Applicant
Outcome
Application for rescission granted; default judgment of 21 May 2014 rescinded; costs awarded against respondents.
Judges
M J Teffo
Legal Topics
Rescission of Judgment, Default Judgment, Notice of Set Down, Mortgage Bond Dispute, Loan Agreement Breach
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment Notice of Set Down Mortgage Bond Dispute Loan Agreement Breach

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Parties

Absa Bank Limited

Applicant

Baloyi Rasimate Thomas

Respondent

Baloyi Jane Mihloti

Respondent

Absa Bank Limited

Plaintiff

Baloyi Rasimate Thomas

Defendant

Baloyi Jane Mihloti

Defendant

Nedbank Limited

Defendant

Procedural Posture

Rescission Application / Application for Rescission of Judgment Granted in Absence of Applicant

Legal Issues

  1. 1 Whether the applicant is entitled to rescission of the judgment granted in its absence on 21 May 2014.
  2. 2 Whether failure to serve notice of set down on the applicant constitutes grounds for rescission under Rule 42(1)(a).
  3. 3 Whether technical defects in affidavits or failure to join third parties bar the rescission application.

Ratio Decidendi

The court found that the applicant was not served with a notice of set down and had no knowledge of the trial date for the proceedings on 21 May 2014. The respondents failed to comply with the peremptory requirements of Transvaal Rule 7 and paragraph 6.15 of the Practice Manual, which mandate written notice of the trial date to all parties. The absence of such notice rendered the judgment of 21 May 2014 erroneously sought or granted within the meaning of Rule 42(1)(a). The court held that once this is established, rescission must follow without further enquiry into good cause. Technical objections regarding the commissioning of affidavits and failure to join third parties were dismissed...

Court Disposition

Application for rescission granted; default judgment of 21 May 2014 rescinded; costs awarded against respondents.

Orders

  • The default judgment granted on 21 May 2014 against the applicant is hereby rescinded.
  • The respondents are ordered to pay the costs of the application.