ERF 2[...] Malanshof CC and Another v Absa Bank Limited (8970/2015) [2019] ZAGPJHC 562 (10 May 2019)

ERF 2[...] Malanshof CC and Another v Absa Bank Limited (8970/2015) [2019] ZAGPJHC 562 (10 May 2019)

The court found that the applicants failed to establish any grounds for rescission of the summary judgment. The evidence showed that Absa Bank complied with its statutory obligations under the National Credit Act by sending the required notices to the applicants' domicilium. The summons was properly served, and the applicants' attorneys were notified of the summary judgment hearing. The procedural complaints raised by the applicants were unsupported by the evidence. The property was owned by a corporate entity, not a primary residence, and the requirements for declaring it specially executable were satisfied. The delay in bringing the rescission application was unreasonable and not...

Citation
[2019] ZAGPJHC 562
Parties
Applicant: ERF 2[...] Malanshof CC; Applicant: Colin Atwell; Respondent: Absa Bank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 May 2019
Case Number
8970/2015
Procedural Posture
Rescission Application / Opposed Motion for Rescission and Condonation
Outcome
Application dismissed with costs.
Judges
Cowen
Legal Topics
Rescission of Judgment, Summary Judgment, National Credit Act Compliance, Special Executability, Condonation, Mortgage Bond Enforcement
Civil Procedure Banking and Finance Rescission of Judgment Summary Judgment National Credit Act Compliance Special Executability Condonation Mortgage Bond Enforcement

Case Brief

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Parties

ERF 2[...] Malanshof CC

Applicant

Colin Atwell

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Rescission Application / Opposed Motion for Rescission and Condonation

Legal Issues

  1. 1 Whether condonation should be granted for the late institution of the rescission application.
  2. 2 Whether the applicants have established grounds for rescission of the summary judgment granted on 5 August 2015.
  3. 3 Whether the respondent complied with sections 129 and 130 of the National Credit Act in serving notice to the applicants.

Ratio Decidendi

The court found that the applicants failed to establish any grounds for rescission of the summary judgment. The evidence showed that Absa Bank complied with its statutory obligations under the National Credit Act by sending the required notices to the applicants' domicilium. The summons was properly served, and the applicants' attorneys were notified of the summary judgment hearing. The procedural complaints raised by the applicants were unsupported by the evidence. The property was owned by a corporate entity, not a primary residence, and the requirements for declaring it specially executable were satisfied. The delay in bringing the rescission application was unreasonable and not...

Court Disposition

Application dismissed with costs.

Orders

  • The application for rescission and condonation is dismissed with costs.