Ferris and Another v Firstrand Bank Limited and Another (CCT 52/13) [2013] ZACC 46; 2014 (3) BCLR 321 (CC); 2014 (3) SA 39 (CC) (12 December 2013)

Ferris and Another v Firstrand Bank Limited and Another (CCT 52/13) [2013] ZACC 46; 2014 (3) BCLR 321 (CC); 2014 (3) SA 39 (CC) (12 December 2013)

The Constitutional Court held that the applicants failed to meet the requirements for rescission under Rule 42(1)(a), Rule 31, or the common law. The default judgment was not erroneously granted, as the applicants breached the debt-restructuring order, entitling FirstRand to enforce the loan without further notice under the National Credit Act and the terms of the order. The applicants did not provide a reasonable explanation for their default, nor did they demonstrate a bona fide defence. The High Court exercised its discretion correctly, and there was no basis for interference. Although condonation for late filing was granted due to the importance of the issues, leave to appeal was...

Citation
[2013] ZACC 46
Parties
Applicant: Destri Joseph Malcolm Ferris; Applicant: Soraya Lachporia Ferris; Respondent: Firstrand Bank Limited; Respondent: D Lee
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
12 December 2013
Case Number
CCT 52/13
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Dismissal of Rescission Application and Refusal of Leave by Lower Courts.
Outcome
Leave to appeal is refused. Condonation for late filing is granted. No order as to costs.
Judges
Moseneke, Skweyiya, Cameron, Dambuza, Froneman, Jafta, Madlanga, Mhlantla, Nkabinde, Van der Westhuizen, Zondo
Legal Topics
Rescission of Judgment, National Credit Act, Debt Review, Condonation, Right of Access to Housing, Default Judgment
Civil Procedure Banking and Finance Constitutional Law Rescission of Judgment National Credit Act Debt Review Condonation Right of Access to Housing +1 more

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Parties

Destri Joseph Malcolm Ferris

Applicant

Soraya Lachporia Ferris

Applicant

Firstrand Bank Limited

Respondent

D Lee

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Dismissal of Rescission Application and Refusal of Leave by Lower Courts.

Legal Issues

  1. 1 Whether condonation for late filing of the application for leave to appeal should be granted.
  2. 2 Whether the requirements for rescission of the default judgment under Rule 42(1)(a), Rule 31, or the common law were met.
  3. 3 Whether the High Court exercised its discretion correctly in refusing rescission.

Ratio Decidendi

The Constitutional Court held that the applicants failed to meet the requirements for rescission under Rule 42(1)(a), Rule 31, or the common law. The default judgment was not erroneously granted, as the applicants breached the debt-restructuring order, entitling FirstRand to enforce the loan without further notice under the National Credit Act and the terms of the order. The applicants did not provide a reasonable explanation for their default, nor did they demonstrate a bona fide defence. The High Court exercised its discretion correctly, and there was no basis for interference. Although condonation for late filing was granted due to the importance of the issues, leave to appeal was...

Court Disposition

Leave to appeal is refused. Condonation for late filing is granted. No order as to costs.

Orders

  • Condonation is granted.
  • Leave to appeal is refused.