Badela v FirstRand Bank Limited and Others (30497/12) [2015] ZAGPPHC 781 (11 August 2015)

Badela v FirstRand Bank Limited and Others (30497/12) [2015] ZAGPPHC 781 (11 August 2015)

The court found that the applicant failed to establish grounds for rescission under Rule 42 or Rule 31(2)(b). The judgment was not erroneously granted, as service of process was effected at the applicant's chosen address and the section 129 notice was properly delivered in accordance with statutory requirements. The applicant's reliance on his brother to make payments did not absolve him of contractual responsibility, and no proof of cession was provided. The amount claimed was supported by a certificate as per the loan agreement. The application for rescission was brought after an unexplained and inordinate delay, and the applicant failed to show good cause or a bona fide defence....

Citation
[2015] ZAGPPHC 781
Parties
Applicant: Mbelelo Badela; Respondent: FirstRand Bank Limited; Respondent: Lizelle Susan Strauss; Respondent: The Sheriff Johannesburg North; Respondent: The Registrar of Deeds, Johannesburg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 August 2015
Case Number
30497/12
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment and Setting Aside of Sale in Execution
Outcome
Application for rescission dismissed with costs.
Judges
P M Mabuse
Legal Topics
Rescission of Judgment, Sale in Execution, Service of Process, Section 129 Notice, Mortgage Bond Enforcement
Civil Procedure Land and Property Rescission of Judgment Sale in Execution Service of Process Section 129 Notice Mortgage Bond Enforcement

Case Brief

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Parties

Mbelelo Badela

Applicant

FirstRand Bank Limited

Respondent

Lizelle Susan Strauss

Respondent

The Sheriff Johannesburg North

Respondent

The Registrar of Deeds, Johannesburg

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment and Setting Aside of Sale in Execution

Legal Issues

  1. 1 Whether the default judgment was erroneously granted and should be rescinded under Rule 42 or Rule 31(2)(b).
  2. 2 Whether the sale in execution of the applicant's property should be set aside.
  3. 3 Whether proper service of process and section 129 notice under the National Credit Act was effected.

Ratio Decidendi

The court found that the applicant failed to establish grounds for rescission under Rule 42 or Rule 31(2)(b). The judgment was not erroneously granted, as service of process was effected at the applicant's chosen address and the section 129 notice was properly delivered in accordance with statutory requirements. The applicant's reliance on his brother to make payments did not absolve him of contractual responsibility, and no proof of cession was provided. The amount claimed was supported by a certificate as per the loan agreement. The application for rescission was brought after an unexplained and inordinate delay, and the applicant failed to show good cause or a bona fide defence....

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission of judgment is dismissed.
  • The application to set aside the sale in execution is dismissed.