Firstrand Bank Ltd and Others v Meyer (08/32310) [2011] ZAGPJHC 78 (12 August 2011)

Firstrand Bank Ltd and Others v Meyer (08/32310) [2011] ZAGPJHC 78 (12 August 2011)

The court found that the second and third applicants had clearly chosen 109 Columbine Street, Mondeor as their domicilium citandi et executandi, and not the mortgaged property. Service of the summons at the mortgaged property was therefore defective and did not come to the applicants' attention, resulting in the...

Source-derived case information.

Citation
[2011] ZAGPJHC 78
Parties
Applicant: Firstrand Bank Ltd; Applicant: Khoza, Neketane Piet; Applicant: Khoza, Selina; Respondent: Meyer, George Frederik
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 August 2011
Case Number
08/32310
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Related Relief
Outcome
Default judgment rescinded and set aside; prayer to declare sale in execution null and void postponed sine die for joinder of the Sheriff; costs awarded against the first applicant.
Judges
D S S Moshidi
Legal Topics
Rescission of Judgment, Service of Process, Domicilium Citandi Et Executandi, Sale in Execution, Default Judgment
Civil Procedure Land and Property Rescission of Judgment Service of Process Domicilium Citandi Et Executandi Sale in Execution Default Judgment

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Firstrand Bank Ltd

Applicant

Khoza, Neketane Piet

Applicant

Khoza, Selina

Applicant

Meyer, George Frederik

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Related Relief

Legal Issues

  1. 1 Whether the default judgment granted on 5 November 2008 was erroneously sought and granted.
  2. 2 Whether service of summons at an address not being the chosen domicilium citandi et executandi was proper.
  3. 3 Whether the sale in execution should be declared null and void.

Ratio Decidendi

The court found that the second and third applicants had clearly chosen 109 Columbine Street, Mondeor as their domicilium citandi et executandi, and not the mortgaged property. Service of the summons at the mortgaged property was therefore defective and did not come to the applicants' attention, resulting in the default judgment being erroneously sought and granted. The court exercised its discretion under Rule 42(1)(a) to rescind the default judgment. The sale in execution could not be declared null and void without joining the Sheriff and resolving disputes regarding the fulfilment of sale conditions. Costs were awarded against the first applicant, who was responsible for the error in...

Court Disposition

Default judgment rescinded and set aside; prayer to declare sale in execution null and void postponed sine die for joinder of the Sheriff; costs awarded against the first applicant.

Orders

  • The default judgment granted by the Registrar under Case No. 08/32310 on 5 November 2008 is rescinded and set aside.
  • Prayer to declare the sale in execution null and void is postponed sine die for the joinder of the Sheriff.