Du Toit v ABSA Bank Limited (2022-048781) [2024] ZAGPJHC 82 (29 January 2024)

Du Toit v ABSA Bank Limited (2022-048781) [2024] ZAGPJHC 82 (29 January 2024)

The court found that the applicant had provided credible evidence that she did not receive the summons, and that the bank had been notified of her change of address through the NCR Form 17.1. The bank did not dispute receipt of this notice. The court held that service at the domicilium address was irregular in light of the change of address communicated to the bank. The default judgment would not have been granted had the court been aware of the change of address. Accordingly, the rescission of the judgment was warranted, and the vehicle must be returned to the applicant.

Citation
[2024] ZAGPJHC 82
Parties
Applicant: Lezel Maria Du Toit; Respondent: ABSA Bank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 January 2024
Case Number
2022-048781
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment rescinded; vehicle to be returned to applicant; costs awarded to applicant.
Judges
GC Wright
Legal Topics
Rescission of Judgment, Service of Process, Debt Review, Domicilium Address, Default Judgment
Civil Procedure Banking and Finance Rescission of Judgment Service of Process Debt Review Domicilium Address Default Judgment

Case Brief

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Parties

Lezel Maria Du Toit

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 14 February 2023 should be rescinded.
  2. 2 Whether service of summons was valid and regular.
  3. 3 Whether the applicant is entitled to the return of the vehicle.

Ratio Decidendi

The court found that the applicant had provided credible evidence that she did not receive the summons, and that the bank had been notified of her change of address through the NCR Form 17.1. The bank did not dispute receipt of this notice. The court held that service at the domicilium address was irregular in light of the change of address communicated to the bank. The default judgment would not have been granted had the court been aware of the change of address. Accordingly, the rescission of the judgment was warranted, and the vehicle must be returned to the applicant.

Court Disposition

Application for rescission granted; default judgment rescinded; vehicle to be returned to applicant; costs awarded to applicant.

Orders

  • The order of 14 February 2023 is rescinded.
  • The respondent is immediately to return the 2017 Renault Sandero 900 T Dynamique with specified engine and chassis numbers to the applicant.