Benson and Another v Standard Bank of South Africa (Pty) Limited and Others (5024/2018) [2019] ZAGPJHC 30; 2019 (5) SA 152 (GJ) (21 February 2019)

Benson and Another v Standard Bank of South Africa (Pty) Limited and Others (5024/2018) [2019] ZAGPJHC 30; 2019 (5) SA 152 (GJ) (21 February 2019)

The court found that the s129 notice was delivered to the appellants' chosen address, as confirmed by registered mail tracking and the absence of evidence to the contrary. Even if there was initial non-compliance, it was cured when the Standard Bank application, including the s129 notice, was served on the appellants, who received actual notice and failed to act. The requirements of the National Credit Act were satisfied before the default judgment was granted. Furthermore, the third rescission application was barred by lis pendens, as the relief sought overlapped with pending appeals on previous rescission applications. The appeal was dismissed as the appellants failed to establish...

Citation
[2019] ZAGPJHC 30
Parties
Appellant: Benson, JM; Appellant: Benson, GV; Respondent: Standard Bank of South Africa (Pty) Limited; Respondent: Sherriff of Johannesburg West; Respondent: H.M Botha Registrar of Deeds: Johannesburg; Respondent: Gert Cornelius
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 February 2019
Case Number
5024/2018
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Third Rescission Application
Outcome
Appeal dismissed with costs.
Judges
Unterhalter, Makhanya, Tsoka
Legal Topics
Rescission of Judgment, National Credit Act Compliance, Service of Process, Lis Pendens
Civil Procedure Banking and Finance Rescission of Judgment National Credit Act Compliance Service of Process Lis Pendens

Case Brief

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Parties

Benson, JM

Appellant

Benson, GV

Appellant

Standard Bank of South Africa (Pty) Limited

Respondent

Sherriff of Johannesburg West

Respondent

H.M Botha Registrar of Deeds: Johannesburg

Respondent

Gert Cornelius

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Third Rescission Application

Legal Issues

  1. 1 Whether the s129 notice under the National Credit Act was properly delivered to the appellants before the default judgment was obtained.
  2. 2 Whether the failure to deliver the s129 notice rendered the default judgment a nullity and justified rescission.
  3. 3 Whether the third rescission application was barred by lis pendens due to pending appeals on previous rescission applications.

Ratio Decidendi

The court found that the s129 notice was delivered to the appellants' chosen address, as confirmed by registered mail tracking and the absence of evidence to the contrary. Even if there was initial non-compliance, it was cured when the Standard Bank application, including the s129 notice, was served on the appellants, who received actual notice and failed to act. The requirements of the National Credit Act were satisfied before the default judgment was granted. Furthermore, the third rescission application was barred by lis pendens, as the relief sought overlapped with pending appeals on previous rescission applications. The appeal was dismissed as the appellants failed to establish...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.