Buechel v South African Securitisation Programme (RF) Limited and Others (3450/2022) [2024] ZAWCHC 68 (5 March 2024)

Buechel v South African Securitisation Programme (RF) Limited and Others (3450/2022) [2024] ZAWCHC 68 (5 March 2024)

The court found that the nature of the discretion exercised in refusing rescission of a default judgment is not clearly settled in law, with authorities describing it as a wide discretion but not specifying whether it is in the strict or ordinary sense. If the discretion is in the strict sense, appellate interference is limited to cases of misapplication of law or facts or lack of judicial conduct. If it is in the ordinary sense, an appellate court may interfere simply because it disagrees with the outcome. Given the uncertainty, and that reasonable prospects of success exist if the discretion is in the ordinary sense, leave to appeal was granted. The applicant did not establish a bona...

Citation
[2024] ZAWCHC 68
Parties
Applicant: gail francis buechel; Respondent: SOUTH AFRICAN SECURITISATION PROGRAMME (RF) LIMITED; Respondent: SASFIN BANK LIMITED; Respondent: SUNLYN (PTY) LTD
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 March 2024
Case Number
3450/2022
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
Outcome
Leave to appeal granted to the Full Bench.
Judges
M J Bishop
Legal Topics
Rescission of Judgment, Leave to Appeal, Exercise of Judicial Discretion
Civil Procedure Rescission of Judgment Leave to Appeal Exercise of Judicial Discretion

Case Brief

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Parties

gail francis buechel

Applicant

SOUTH AFRICAN SECURITISATION PROGRAMME (RF) LIMITED

Respondent

SASFIN BANK LIMITED

Respondent

SUNLYN (PTY) LTD

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application

Legal Issues

  1. 1 Whether the discretion exercised in refusing rescission of default judgment is a discretion in the strict or ordinary sense.
  2. 2 Whether the applicant has reasonable prospects of success on appeal against the refusal of rescission.
  3. 3 Whether the applicant established a bona fide defence in her founding papers.

Ratio Decidendi

The court found that the nature of the discretion exercised in refusing rescission of a default judgment is not clearly settled in law, with authorities describing it as a wide discretion but not specifying whether it is in the strict or ordinary sense. If the discretion is in the strict sense, appellate interference is limited to cases of misapplication of law or facts or lack of judicial conduct. If it is in the ordinary sense, an appellate court may interfere simply because it disagrees with the outcome. Given the uncertainty, and that reasonable prospects of success exist if the discretion is in the ordinary sense, leave to appeal was granted. The applicant did not establish a bona...

Court Disposition

Leave to appeal granted to the Full Bench.

Orders

  • Leave to appeal is granted to the Full Bench.
  • Costs of this application will be costs in the appeal. If the applicant does not prosecute the appeal, she shall pay the respondents' costs in this application.