Cloete and Another v Standard Bank of SA Ltd (1049/2017) [2020] ZANCHC 38 (22 May 2020)

Cloete and Another v Standard Bank of SA Ltd (1049/2017) [2020] ZANCHC 38 (22 May 2020)

The court found that the applicants failed to establish any facts that would have precluded the granting of the default judgment under Rule 42(1). The applicants admitted their arrears and did not present a bona fide defence to the respondent's claim, as required by Rule 31(2)(b). Their explanation for the default and delay was inadequate, as they failed to notify the respondent of their change of address and did not act within the prescribed time. The interests of justice did not favour condonation, given the lack of prospects of success and absence of a substantive defence. The application for rescission and condonation was therefore dismissed.

Citation
[2020] ZANCHC 38
Parties
Applicant: Andrew Pieter Cloete; Applicant: Jandre Cloete; Respondent: Standard Bank of SA Ltd
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
22 May 2020
Case Number
1049/2017
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment and Condonation for Late Filing
Outcome
Application dismissed with costs.
Judges
Makoti
Legal Topics
Rescission of Default Judgment, Condonation for Late Filing, Consumer Credit Agreement, Mortgage Bond, Service of Process
Civil Procedure Banking and Finance Rescission of Default Judgment Condonation for Late Filing Consumer Credit Agreement Mortgage Bond Service of Process

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Parties

Andrew Pieter Cloete

Applicant

Jandre Cloete

Applicant

Standard Bank of SA Ltd

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment and Condonation for Late Filing

Legal Issues

  1. 1 Whether the applicants have shown grounds for rescission of the default judgment under Rule 42(1) or Rule 31(2)(b).
  2. 2 Whether the applicants have provided a reasonable explanation for their default and prospects of success.
  3. 3 Whether condonation for the late filing of the rescission application should be granted.

Ratio Decidendi

The court found that the applicants failed to establish any facts that would have precluded the granting of the default judgment under Rule 42(1). The applicants admitted their arrears and did not present a bona fide defence to the respondent's claim, as required by Rule 31(2)(b). Their explanation for the default and delay was inadequate, as they failed to notify the respondent of their change of address and did not act within the prescribed time. The interests of justice did not favour condonation, given the lack of prospects of success and absence of a substantive defence. The application for rescission and condonation was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.