Ferreira and Another v Nedbank Limited and Another (45240/16) [2017] ZAGPJHC 357 (24 November 2017)

Ferreira and Another v Nedbank Limited and Another (45240/16) [2017] ZAGPJHC 357 (24 November 2017)

The court found that the applicants failed to establish good cause for rescission of the default judgment. The applicants were aware of the arrears and the legal proceedings, having participated in debt restructuring and the Nedbank Assisted Sale programme. Service of process was effected at their chosen domicilium, and the applicants did not formally change their address. The alleged defect in the commissioning of affidavits was unfounded, as mere employment by a panel firm does not create a prohibited interest. The applicants' defences were found to be bald and fictitious, and their failure to respond to the respondent's attempts at contact was deemed wilful default. The requirements...

Citation
[2017] ZAGPJHC 357
Parties
Applicant: Rian Ferreira; Applicant: Helen Heather Ferreira; Respondent: Nedbank Limited; Respondent: Sheriff of the High Court: Heidelberg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 November 2017
Case Number
45240/16
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs.
Judges
S Pather
Legal Topics
Rescission of Judgment, Default Judgment, Mortgage Bond Enforcement, Service of Process, Domicilium Citandi Et Executandi
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment Mortgage Bond Enforcement Service of Process Domicilium Citandi Et Executandi

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Parties

Rian Ferreira

Applicant

Helen Heather Ferreira

Applicant

Nedbank Limited

Respondent

Sheriff of the High Court: Heidelberg

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment granted in their absence.
  2. 2 Whether service of summons and notices was defective or improper.
  3. 3 Whether the Commissioner of Oaths was disqualified from commissioning affidavits for the first respondent.

Ratio Decidendi

The court found that the applicants failed to establish good cause for rescission of the default judgment. The applicants were aware of the arrears and the legal proceedings, having participated in debt restructuring and the Nedbank Assisted Sale programme. Service of process was effected at their chosen domicilium, and the applicants did not formally change their address. The alleged defect in the commissioning of affidavits was unfounded, as mere employment by a panel firm does not create a prohibited interest. The applicants' defences were found to be bald and fictitious, and their failure to respond to the respondent's attempts at contact was deemed wilful default. The requirements...

Court Disposition

Application for rescission of judgment dismissed with costs.

Orders

  • The application for rescission is dismissed.
  • Applicants are ordered to pay the costs of the application.