Erkling v Nedbank Ltd (2483/2014) [2015] ZAGPPHC 864 (18 December 2015)

Erkling v Nedbank Ltd (2483/2014) [2015] ZAGPPHC 864 (18 December 2015)

The court found that the applicant had served and filed a notice to defend before the default judgment was granted. The judge held that if the court had been aware of the notice to defend, it would not have granted the default judgment. Therefore, the judgment was granted erroneously within the meaning of Rule 42(1)(a), and rescission was warranted. However, since the applicant filed the notice to defend after the respondent had already lodged the application for default judgment, the applicant was ordered to bear the costs of the application.

Citation
[2015] ZAGPPHC 864
Parties
Applicant: Ali Eren Erkling; Respondent: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 December 2015
Case Number
2483/2014
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment granted; applicant to pay costs.
Judges
S Madiba
Legal Topics
Rescission of Default Judgment, Uniform Rules of Court Rule 42, Notice to Defend, Dies Induciae
Civil Procedure Rescission of Default Judgment Uniform Rules of Court Rule 42 Notice to Defend Dies Induciae

Case Brief

Summary, issues, holding and outcome

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Parties

Ali Eren Erkling

Applicant

Nedbank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously granted when the applicant had served and filed a notice to defend before judgment was granted.
  2. 2 Whether the applicant is entitled to rescission of the default judgment under Rule 42(1)(a) of the Uniform Rules of Court.
  3. 3 Who should bear the costs of the rescission application.

Ratio Decidendi

The court found that the applicant had served and filed a notice to defend before the default judgment was granted. The judge held that if the court had been aware of the notice to defend, it would not have granted the default judgment. Therefore, the judgment was granted erroneously within the meaning of Rule 42(1)(a), and rescission was warranted. However, since the applicant filed the notice to defend after the respondent had already lodged the application for default judgment, the applicant was ordered to bear the costs of the application.

Court Disposition

Application for rescission of default judgment granted; applicant to pay costs.

Orders

  • The default judgment granted on 12 February 2014 is rescinded.
  • The applicant is ordered to pay costs.