Absa Bank Limited v Miloushev and Another (24321/2012) [2017] ZAGPJHC 99 (24 March 2017)

Absa Bank Limited v Miloushev and Another (24321/2012) [2017] ZAGPJHC 99 (24 March 2017)

The court found that the applicants failed to discharge the onus required for rescission of judgment. Service of process was properly effected on co-occupiers, and there was no credible evidence that the applicants were unaware of the proceedings. The applicants did not explain their default, failed to show a bona fide defence, and did not demonstrate good cause for rescission. The application for a stay pending referral to an international tribunal was dismissed as the tribunal lacks jurisdiction in South Africa. The request for postponement was refused due to lack of substantive grounds and repeated delays. Consequently, all applications by the applicants were dismissed and costs were...

Citation
[2017] ZAGPJHC 99
Parties
Plaintiff: Absa Bank Limited; Defendant: Milen Miloushev; Defendant: Nina Entchev Miloushev
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 March 2017
Case Number
24321/2012
Procedural Posture
Rescission Application / Judgment on Opposed Applications for Rescission and Stay
Outcome
All applications by the applicants are dismissed with costs.
Judges
C J Van der Westhuizen
Legal Topics
Rescission of Judgment, Default Judgment, Mortgage Bond Enforcement, Service of Process
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment Mortgage Bond Enforcement Service of Process

Case Brief

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Parties

Absa Bank Limited

Plaintiff

Milen Miloushev

Defendant

Nina Entchev Miloushev

Defendant

Procedural Posture

Rescission Application / Judgment on Opposed Applications for Rescission and Stay

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the judgment granted on 22 July 2014.
  2. 2 Whether service of process was properly effected on the applicants.
  3. 3 Whether the application for a stay pending referral to an international tribunal is competent.

Ratio Decidendi

The court found that the applicants failed to discharge the onus required for rescission of judgment. Service of process was properly effected on co-occupiers, and there was no credible evidence that the applicants were unaware of the proceedings. The applicants did not explain their default, failed to show a bona fide defence, and did not demonstrate good cause for rescission. The application for a stay pending referral to an international tribunal was dismissed as the tribunal lacks jurisdiction in South Africa. The request for postponement was refused due to lack of substantive grounds and repeated delays. Consequently, all applications by the applicants were dismissed and costs were...

Court Disposition

All applications by the applicants are dismissed with costs.

Orders

  • The request for a postponement is refused.
  • The application for a stay of the main application is dismissed.