Firstrand Bank Limited v Vellem (M404/2022) [2025] ZANWHC 100 (12 June 2025)

Firstrand Bank Limited v Vellem (M404/2022) [2025] ZANWHC 100 (12 June 2025)

The court found that the default judgment was erroneously granted against Firstrand Bank Limited, which was not the correct legal entity liable under the life insurance policy. The summons was served at a branch office rather than the registered address, and there was no evidence that the branch was authorised to accept service. Furthermore, the judgment was granted in favour of a deceased person not legally before the court. These procedural irregularities and misidentification of parties rendered the judgment void ab initio and susceptible to rescission under Rule 42(1)(a). The applicant provided a reasonable and bona fide explanation for the delay in bringing the application. The...

Citation
[2025] ZANWHC 100
Parties
Applicant: Firstrand Bank Limited; Respondent: Khula Mxolisi Vellem
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
12 June 2025
Case Number
M404/2022
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment granted; default judgment set aside; applicant granted leave to defend; costs to be costs in the cause.
Judges
Oosthuizen-Senekal
Legal Topics
Rescission of Judgment, Default Judgment, Defective Service, Misidentification of Party, Audi Alteram Partem, Costs in the Cause
Civil Procedure Rescission of Judgment Default Judgment Defective Service Misidentification of Party Audi Alteram Partem Costs in the Cause

Case Brief

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Parties

Firstrand Bank Limited

Applicant

Khula Mxolisi Vellem

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 22 September 2022 should be rescinded under Rule 42(1)(a) of the Uniform Rules of Court.
  2. 2 Whether the summons was served on the correct legal entity and at the proper address.
  3. 3 Whether the judgment was erroneously granted in favour of a deceased person not legally before the court.

Ratio Decidendi

The court found that the default judgment was erroneously granted against Firstrand Bank Limited, which was not the correct legal entity liable under the life insurance policy. The summons was served at a branch office rather than the registered address, and there was no evidence that the branch was authorised to accept service. Furthermore, the judgment was granted in favour of a deceased person not legally before the court. These procedural irregularities and misidentification of parties rendered the judgment void ab initio and susceptible to rescission under Rule 42(1)(a). The applicant provided a reasonable and bona fide explanation for the delay in bringing the application. The...

Court Disposition

Application for rescission of judgment granted; default judgment set aside; applicant granted leave to defend; costs to be costs in the cause.

Orders

  • The application for rescission of the judgment granted by Gura J on 22 September 2022 is granted.
  • The judgment granted in favour of Bonele Mxolisi Vellem on 22 September 2022 is set aside.