Diko and Another v Nedbank Limited and Others (76930/ 2015) [2018] ZAGPPHC 339 (28 February 2018)

Diko and Another v Nedbank Limited and Others (76930/ 2015) [2018] ZAGPPHC 339 (28 February 2018)

The court found that the applicants failed to provide a reasonable and satisfactory explanation for the six-month delay in bringing the rescission application. The first applicant misstated the date of the default judgment, thereby truncating the period of delay and attempting to mislead the court. No replying affidavit was filed to explain the inconsistency. The respondent's delay in filing its answering affidavit was found to be reasonable and condoned due to the need to retrieve closed files. The applicants did not discharge the onus required for condonation, nor did they establish a defence to the main action. The application for condonation and rescission was therefore refused with...

Citation
[2018] ZAGPPHC 339
Parties
Applicant: Nolutho Diko; Applicant: Nolutho Diko N.O.; Respondent: Nedbank Limited; Respondent: Master of the High Court; Respondent: The Sheriff of the High Court
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 February 2018
Case Number
76930/ 2015
Procedural Posture
Rescission Application / Judgment on Application for Condonation and Rescission
Outcome
Application for condonation and rescission refused with costs.
Judges
N.M. Mavundla
Legal Topics
Rescission of Judgment, Condonation, Default Judgment, Service of Process
Civil Procedure Rescission of Judgment Condonation Default Judgment Service of Process

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Parties

Nolutho Diko

Applicant

Nolutho Diko N.O.

Applicant

Nedbank Limited

Respondent

Master of the High Court

Respondent

The Sheriff of the High Court

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Condonation and Rescission

Legal Issues

  1. 1 Whether the applicants have provided a reasonable and satisfactory explanation for the delay in bringing the rescission application.
  2. 2 Whether condonation for the late filing of the rescission application should be granted.
  3. 3 Whether the default judgment should be rescinded and set aside.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable and satisfactory explanation for the six-month delay in bringing the rescission application. The first applicant misstated the date of the default judgment, thereby truncating the period of delay and attempting to mislead the court. No replying affidavit was filed to explain the inconsistency. The respondent's delay in filing its answering affidavit was found to be reasonable and condoned due to the need to retrieve closed files. The applicants did not discharge the onus required for condonation, nor did they establish a defence to the main action. The application for condonation and rescission was therefore refused with...

Court Disposition

Application for condonation and rescission refused with costs.

Orders

  • The application for condonation is refused.
  • The application for rescission of default judgment is refused.