Baloyi and Another v Absa Bank Ltd and Others (9850/2000) [2013] ZAGPPHC 16 (1 February 2013)

Baloyi and Another v Absa Bank Ltd and Others (9850/2000) [2013] ZAGPPHC 16 (1 February 2013)

The court found that the applicants had established a proper case for rescission of the default judgment, as the summons was not properly served. However, the court held that the relief sought in prayers 2 and 3, which would affect the rights of the fifth respondent, could not be granted at this stage and must be determined by the trial court. The application for rescission was granted, and prayers 2 and 3 were postponed sine die.

Citation
[2013] ZAGPPHC 16
Parties
Applicant: Rasimate Thomas Baloyi; Applicant: Jane Mihloti Baloyi; Respondent: Absa Bank Ltd; Respondent: Ramogohlo Dona Maphuta; Respondent: Matjeane Maphutho NO; Respondent: Registrar of Deeds, Pretoria; Respondent: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 February 2013
Case Number
9850/2000
Procedural Posture
Review Application / Application for Rescission of Default Judgment; Interlocutory Relief
Outcome
Default judgment rescinded; further relief postponed sine die; no costs order.
Judges
BAM
Legal Topics
Rescission of Judgment, Service of Process, Sale in Execution, Bond Registration
Civil Procedure Land and Property Rescission of Judgment Service of Process Sale in Execution Bond Registration

Case Brief

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Parties

Rasimate Thomas Baloyi

Applicant

Jane Mihloti Baloyi

Applicant

Absa Bank Ltd

Respondent

Ramogohlo Dona Maphuta

Respondent

Matjeane Maphutho NO

Respondent

Registrar of Deeds, Pretoria

Respondent

Nedbank Limited

Respondent

Procedural Posture

Review Application / Application for Rescission of Default Judgment; Interlocutory Relief

Legal Issues

  1. 1 Whether the default judgment granted against the applicants should be rescinded due to lack of proper service.
  2. 2 Whether the applicants are entitled to restoration of property registration and cancellation of the bond registered in favour of the fifth respondent.

Ratio Decidendi

The court found that the applicants had established a proper case for rescission of the default judgment, as the summons was not properly served. However, the court held that the relief sought in prayers 2 and 3, which would affect the rights of the fifth respondent, could not be granted at this stage and must be determined by the trial court. The application for rescission was granted, and prayers 2 and 3 were postponed sine die.

Court Disposition

Default judgment rescinded; further relief postponed sine die; no costs order.

Orders

  • The default judgment in case number 9850/2000, granted by the Registrar on 19 May 2000 against the applicants in favour of ABSA Bank Ltd, is rescinded.
  • Prayers 2 and 3 are postponed sine die pending the trial court's final decision in case number 9850/2000.