Biyana v Nedbank Limited (46214/2018) [2021] ZAGPPHC 628 (20 September 2021)

Biyana v Nedbank Limited (46214/2018) [2021] ZAGPPHC 628 (20 September 2021)

The court found that the applicant had filed opposing papers and a supplementary affidavit, and the court was made aware of these documents. The applicant failed to attend the hearing but did not provide a satisfactory explanation for his absence. The court held that, in accordance with established case law, where a defendant has filed an affidavit opposing summary judgment, the court is obliged to consider it, and the defendant is not in default even if absent at the hearing. Therefore, an application for rescission is not the correct procedure; the appropriate remedy is to seek leave to appeal. The application for rescission was dismissed as the summary judgment was not erroneously...

Citation
[2021] ZAGPPHC 628
Parties
Applicant: Ludwe Mbasa Biyana; Respondent: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 September 2021
Case Number
46214/2018
Procedural Posture
Urgent Application / Application for Rescission of Summary Judgment
Outcome
Application for rescission dismissed; costs awarded to respondent.
Judges
Tlhapi VV
Legal Topics
Rescission of Judgment, Summary Judgment, Rule 42, Rule 31, Section 129 National Credit Act
Civil Procedure Rescission of Judgment Summary Judgment Rule 42 Rule 31 Section 129 National Credit Act

Case Brief

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Parties

Ludwe Mbasa Biyana

Applicant

Nedbank Limited

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Summary Judgment

Legal Issues

  1. 1 Whether the summary judgment granted on 3 September 2019 was erroneously granted in the absence of the applicant.
  2. 2 Whether the applicant complied with the procedural requirements for rescission under Rule 42(1)(a) or Rule 31(2)(b).
  3. 3 Whether the applicant's supplementary affidavit and opposition were properly considered by the court.

Ratio Decidendi

The court found that the applicant had filed opposing papers and a supplementary affidavit, and the court was made aware of these documents. The applicant failed to attend the hearing but did not provide a satisfactory explanation for his absence. The court held that, in accordance with established case law, where a defendant has filed an affidavit opposing summary judgment, the court is obliged to consider it, and the defendant is not in default even if absent at the hearing. Therefore, an application for rescission is not the correct procedure; the appropriate remedy is to seek leave to appeal. The application for rescission was dismissed as the summary judgment was not erroneously...

Court Disposition

Application for rescission dismissed; costs awarded to respondent.

Orders

  • The application for rescission is dismissed.
  • The applicant is ordered to pay the respondent's costs occasioned by the application.