FirstRand Bank Limited v Moripane Construction & Projects CC and Another (39610/2020) [2021] ZAGPJHC 748 (29 November 2021)

FirstRand Bank Limited v Moripane Construction & Projects CC and Another (39610/2020) [2021] ZAGPJHC 748 (29 November 2021)

The court found that the respondents failed to provide a reasonable explanation for their default, as service was effected at their chosen domicilium and no credible reason was given for their failure to respond. The respondents did not disclose a bona fide defence to the applicant's claim; financial difficulties arising from Covid-19 do not constitute a legal defence to the admitted indebtedness under the overdraft and suretyship agreements. The requirements for rescission of the default judgment were not met. Accordingly, the application for rescission and the application to stay the warrant of execution were dismissed with costs on an attorney and client scale.

Citation
[2021] ZAGPJHC 748
Parties
Applicant: FirstRand Bank Limited; Respondent: Moripane Construction & Projects CC; Respondent: Morena, Vincent Phoso
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 November 2021
Case Number
39610/2020
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment and Stay of Warrant of Execution
Outcome
Application for rescission of default judgment and stay of warrant of execution dismissed with costs.
Judges
L R Adams
Legal Topics
Rescission of Default Judgment, Service of Process, Suretyship Liability, Overdraft Agreement, Costs Award
Civil Procedure Banking and Finance Rescission of Default Judgment Service of Process Suretyship Liability Overdraft Agreement Costs Award

Case Brief

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Parties

FirstRand Bank Limited

Applicant

Moripane Construction & Projects CC

Respondent

Morena, Vincent Phoso

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment and Stay of Warrant of Execution

Legal Issues

  1. 1 Whether the respondents have shown good cause for rescission of the default judgment.
  2. 2 Whether the respondents have provided a reasonable explanation for their default.
  3. 3 Whether the respondents have disclosed a bona fide defence to the applicant's claim.

Ratio Decidendi

The court found that the respondents failed to provide a reasonable explanation for their default, as service was effected at their chosen domicilium and no credible reason was given for their failure to respond. The respondents did not disclose a bona fide defence to the applicant's claim; financial difficulties arising from Covid-19 do not constitute a legal defence to the admitted indebtedness under the overdraft and suretyship agreements. The requirements for rescission of the default judgment were not met. Accordingly, the application for rescission and the application to stay the warrant of execution were dismissed with costs on an attorney and client scale.

Court Disposition

Application for rescission of default judgment and stay of warrant of execution dismissed with costs.

Orders

  • The first and second respondents’ application to rescind and set aside the default judgment granted against them by this Court (per Senyatsi J) on 25 February 2021 is dismissed with costs.
  • The first and second respondents’ application to stay the warrant of execution issued against their property on 8 March 2021 is dismissed with costs.