Dewhurst NO and Another v ABSA Bank Limited (532/08) [2008] ZAECHC 154 (5 September 2008)

Dewhurst NO and Another v ABSA Bank Limited (532/08) [2008] ZAECHC 154 (5 September 2008)

The court found that the applicant's application for rescission was filed outside the prescribed period, as he became aware of the default judgment on 18 April 2008. The applicant failed to provide any explanation for his default and did not set out any facts that would constitute a bona fide defence to the respondent's claim. The application was not bona fide and appeared to be made merely to delay the respondent's claim. Accordingly, the requirements for rescission under Rule 31(2)(b) were not met, and the application was dismissed.

Citation
[2008] ZAECHC 154
Parties
Applicant: Lance Patrick Dewhurst N.O; Applicant: Lance Patrick Dewhurst; Respondent: ABSA Bank Limited
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
5 September 2008
Case Number
532/08
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs.
Judges
Chetty
Legal Topics
Rescission of Default Judgment, Mortgage Bond Enforcement, Suretyship Liability, Rule 31 Procedure, Bona Fide Defence Requirement
Civil Procedure Banking and Finance Rescission of Default Judgment Mortgage Bond Enforcement Suretyship Liability Rule 31 Procedure Bona Fide Defence Requirement

Case Brief

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Parties

Lance Patrick Dewhurst N.O

Applicant

Lance Patrick Dewhurst

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant has shown good cause for rescission of the default judgment.
  2. 2 Whether the application for rescission was brought within the prescribed time period under Rule 31(2)(b).
  3. 3 Whether the applicant has established a bona fide defence to the respondent's claim.

Ratio Decidendi

The court found that the applicant's application for rescission was filed outside the prescribed period, as he became aware of the default judgment on 18 April 2008. The applicant failed to provide any explanation for his default and did not set out any facts that would constitute a bona fide defence to the respondent's claim. The application was not bona fide and appeared to be made merely to delay the respondent's claim. Accordingly, the requirements for rescission under Rule 31(2)(b) were not met, and the application was dismissed.

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed.
  • The trust is ordered to pay the costs of the application.