Fourie v Firstrand Bank Ltd (45437/2011) [2017] ZAGPJHC 448 (11 October 2017)

Fourie v Firstrand Bank Ltd (45437/2011) [2017] ZAGPJHC 448 (11 October 2017)

The applicant failed to provide a reasonable explanation for the inordinate delay in bringing the rescission application. He was aware of the facts and potential defences since 2009, and voluntarily entered into the settlement agreement, making payments and benefiting from its terms. The alleged late discovery of his attorney's disciplinary proceedings is irrelevant, as the attorney was instructed after the first settlement agreement and the applicant's intention to settle remains unexplained. The applicant acquiesced in the judgment, which was granted by consent, and no prospects of a triable issue exist. The settlement agreement is valid and has the effect of res judicata. The excessive...

Citation
[2017] ZAGPJHC 448
Parties
Applicant: Marthinus Theunis Steyn Fourie; Respondent: Firstrand Bank Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 October 2017
Case Number
45437/2011
Procedural Posture
Urgent Application / Application for Rescission of Consent Order and Condonation for Late Filing
Outcome
Application for condonation and rescission dismissed with costs, including a punitive costs order against the applicant's attorney.
Judges
FHD Van Oosten
Legal Topics
Rescission of Judgment, Condonation for Late Filing, Suretyship Liability, Settlement Agreement, Abuse of Process
Civil Procedure Banking and Finance Rescission of Judgment Condonation for Late Filing Suretyship Liability Settlement Agreement Abuse of Process

Case Brief

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Parties

Marthinus Theunis Steyn Fourie

Applicant

Firstrand Bank Ltd

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Consent Order and Condonation for Late Filing

Legal Issues

  1. 1 Whether the applicant has shown good or sufficient cause for rescission of the consent order.
  2. 2 Whether condonation for the late filing of the rescission application should be granted.
  3. 3 Whether the applicant acquiesced in the judgment and settlement agreement.

Ratio Decidendi

The applicant failed to provide a reasonable explanation for the inordinate delay in bringing the rescission application. He was aware of the facts and potential defences since 2009, and voluntarily entered into the settlement agreement, making payments and benefiting from its terms. The alleged late discovery of his attorney's disciplinary proceedings is irrelevant, as the attorney was instructed after the first settlement agreement and the applicant's intention to settle remains unexplained. The applicant acquiesced in the judgment, which was granted by consent, and no prospects of a triable issue exist. The settlement agreement is valid and has the effect of res judicata. The excessive...

Court Disposition

Application for condonation and rescission dismissed with costs, including a punitive costs order against the applicant's attorney.

Orders

  • The applicant's application for condonation for the late bringing of this application is dismissed.
  • The applicant is ordered to pay the costs of the application on the attorney and client scale.