Geyser v Nedbank Limited and Others (430/04 , 430/04 , 4/00430) [2006] ZAGPHC 50; 2006 (5) SA 355 (W) (22 May 2006)

Geyser v Nedbank Limited and Others (430/04 , 430/04 , 4/00430) [2006] ZAGPHC 50; 2006 (5) SA 355 (W) (22 May 2006)

The court found that the High Court had concurrent jurisdiction due to the location of the hypothecated property and the applicant's chosen domicilium citandi et executandi. The applicant's notice of intention to defend was sent timeously to both the bank's attorneys and the Registrar, and the bank's attorneys failed to disclose this to the Registrar when applying for default judgment. This constituted an abuse of process, and the default judgment was granted by mistake. Consequently, all steps taken pursuant to the default judgment, including the sale in execution, must be set aside. The costs of the application are to be costs in the action, as both parties achieved partial success.

Citation
[2006] ZAGPHC 50
Parties
Applicant: Petrus Geyser; Respondent: Nedbank Limited; Respondent: The Sheriff, JHB North; Respondent: Frans van der Westhuizen; Respondent: Registrar of Deeds
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
22 May 2006
Case Number
04/00430
Procedural Posture
Urgent Application / Return Day of Rule Nisi; Application for Stay of Transfer Pending Recission of Judgment
Outcome
Default judgment rescinded and set aside; all steps taken pursuant to the judgment set aside; costs to be costs in the action.
Judges
Van Oosten
Legal Topics
Recission of Judgment, Jurisdiction, Sale in Execution, Mortgage Bond, Default Judgment
Civil Procedure Land and Property Recission of Judgment Jurisdiction Sale in Execution Mortgage Bond Default Judgment

Case Brief

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Parties

Petrus Geyser

Applicant

Nedbank Limited

Respondent

The Sheriff, JHB North

Respondent

Frans van der Westhuizen

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Return Day of Rule Nisi; Application for Stay of Transfer Pending Recission of Judgment

Legal Issues

  1. 1 Whether the High Court had jurisdiction to grant the default judgment against the applicant.
  2. 2 Whether the default judgment was properly granted in light of the applicant's notice of intention to defend.
  3. 3 Whether the sale in execution and subsequent steps should be set aside due to procedural irregularities.

Ratio Decidendi

The court found that the High Court had concurrent jurisdiction due to the location of the hypothecated property and the applicant's chosen domicilium citandi et executandi. The applicant's notice of intention to defend was sent timeously to both the bank's attorneys and the Registrar, and the bank's attorneys failed to disclose this to the Registrar when applying for default judgment. This constituted an abuse of process, and the default judgment was granted by mistake. Consequently, all steps taken pursuant to the default judgment, including the sale in execution, must be set aside. The costs of the application are to be costs in the action, as both parties achieved partial success.

Court Disposition

Default judgment rescinded and set aside; all steps taken pursuant to the judgment set aside; costs to be costs in the action.

Orders

  • The judgment by default in case no 04/00430 dated 5 February 2004 is rescinded and set aside.
  • All steps taken pursuant to the judgment referred to above are set aside.