Ditsele and Another v ABSA Bank Limited (25789/2020) [2024] ZAGPPHC 1177 (22 November 2024)

Ditsele and Another v ABSA Bank Limited (25789/2020) [2024] ZAGPPHC 1177 (22 November 2024)

The court found that the applicants were personally served with all relevant documents, including the summons, application for default judgment, and applications to lower the reserve price. Their absence from proceedings was by choice, not due to procedural irregularity. The applicants failed to provide a reasonable explanation for their default and did not advance a bona fide defence to the respondent's claim, admitting arrears and inability to pay. The application for rescission was brought under incorrect procedural rules (Rule 46A and section 26 of the Constitution), which do not provide grounds for rescission. Furthermore, the order of 29 March 2023 did not grant default judgment but...

Citation
[2024] ZAGPPHC 1177
Parties
Applicant: Tshepo John Danny Ditsele; Applicant: Benedicta Mmamolepo Ditsele; Respondent: ABSA Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 November 2024
Case Number
25789/2020
Procedural Posture
Urgent Application / Application for Rescission of Judgment Following Default Judgment and Subsequent Orders Regarding Reserve Price for Sale in Execution.
Outcome
Application for rescission of judgment dismissed with costs.
Judges
SA Thobane
Legal Topics
Rescission of Judgment, Default Judgment, Sale in Execution, Reserve Price, Rule 42, Rule 31
Civil Procedure Land and Property Rescission of Judgment Default Judgment Sale in Execution Reserve Price Rule 42 Rule 31

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Parties

Tshepo John Danny Ditsele

Applicant

Benedicta Mmamolepo Ditsele

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Judgment Following Default Judgment and Subsequent Orders Regarding Reserve Price for Sale in Execution.

Legal Issues

  1. 1 Whether the applicants have shown grounds for rescission of the order of 29 March 2023.
  2. 2 Whether the applicants were absent due to procedural irregularity or by choice.
  3. 3 Whether the applicants have demonstrated good cause and a bona fide defence to the respondent's claim.

Ratio Decidendi

The court found that the applicants were personally served with all relevant documents, including the summons, application for default judgment, and applications to lower the reserve price. Their absence from proceedings was by choice, not due to procedural irregularity. The applicants failed to provide a reasonable explanation for their default and did not advance a bona fide defence to the respondent's claim, admitting arrears and inability to pay. The application for rescission was brought under incorrect procedural rules (Rule 46A and section 26 of the Constitution), which do not provide grounds for rescission. Furthermore, the order of 29 March 2023 did not grant default judgment but...

Court Disposition

Application for rescission of judgment dismissed with costs.

Orders

  • The application for rescission of judgment is dismissed with costs.