Cherokee Rose Prop 100 CC and Another v ABSA Bank Limited and Others (37071/2012) [2021] ZAGPJHC 580 (21 October 2021)

Cherokee Rose Prop 100 CC and Another v ABSA Bank Limited and Others (37071/2012) [2021] ZAGPJHC 580 (21 October 2021)

The court found that the second rescission application was barred by res judicata, as the first rescission application had been finally determined on the merits between the same parties and on the same cause of action. The applicants failed to provide any reasonable explanation for their delay in bringing the second application, nor did they seek condonation. The defences raised by the applicants, including those under the National Credit Act and regarding the computation of arrears, were previously considered and rejected, and have no merit. The applicants admitted breach of the credit agreement and failed to show that the default judgment was erroneously sought or granted. The...

Citation
[2021] ZAGPJHC 580
Parties
Applicant: Cherokee Rose Prop 100 CC; Applicant: Wayde Trevor Morsink; Respondent: ABSA Bank Limited; Respondent: Sheriff Kempton Park; Respondent: Registrar of Deeds, Pretoria; Respondent: Hawk Eye Investments (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 October 2021
Case Number
37071/2012
Procedural Posture
Rescission Application / Second Rescission Application Following Dismissal of First Rescission; Application Opposed and Heard on the Merits.
Outcome
Application dismissed with attorney and client costs.
Judges
Franck
Legal Topics
Rescission of Judgment, Default Judgment, Res Judicata, Estoppel, National Credit Act, Sale in Execution
Civil Procedure Land and Property Rescission of Judgment Default Judgment Res Judicata Estoppel National Credit Act Sale in Execution

Case Brief

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Parties

Cherokee Rose Prop 100 CC

Applicant

Wayde Trevor Morsink

Applicant

ABSA Bank Limited

Respondent

Sheriff Kempton Park

Respondent

Registrar of Deeds, Pretoria

Respondent

Hawk Eye Investments (Pty) Limited

Respondent

Procedural Posture

Rescission Application / Second Rescission Application Following Dismissal of First Rescission; Application Opposed and Heard on the Merits.

Legal Issues

  1. 1 Whether the second rescission application is barred by res judicata.
  2. 2 Whether the applicants have shown good cause or prospects of success for rescission under Rule 42(1)(a).
  3. 3 Whether the delay in bringing the second rescission application is fatal to the application.

Ratio Decidendi

The court found that the second rescission application was barred by res judicata, as the first rescission application had been finally determined on the merits between the same parties and on the same cause of action. The applicants failed to provide any reasonable explanation for their delay in bringing the second application, nor did they seek condonation. The defences raised by the applicants, including those under the National Credit Act and regarding the computation of arrears, were previously considered and rejected, and have no merit. The applicants admitted breach of the credit agreement and failed to show that the default judgment was erroneously sought or granted. The...

Court Disposition

Application dismissed with attorney and client costs.

Orders

  • The second rescission application is dismissed.
  • The applicants are ordered to pay the costs of the application on an attorney and client scale.