Hammond and Another v Firstrand Bank Ltd and Another (31452/10) [2011] ZAGPJHC 189 (22 June 2011)

Hammond and Another v Firstrand Bank Ltd and Another (31452/10) [2011] ZAGPJHC 189 (22 June 2011)

The court found that the applicants failed to provide a reasonable and convincing explanation for their 11-year delay in bringing the rescission application. The applicants were aware of the default judgment since 1999 and took no steps to challenge it, despite being notified of the sale in execution and subsequent events. Their explanation, based solely on the first applicant's alleged naivety, was inadequate. The court further held that the applicants did not establish a bona fide defence with any prospect of success. The defence of prescription was rejected as the judgment debt was ceded within two years, and the marital status issue was properly addressed in the bond documentation....

Citation
[2011] ZAGPJHC 189
Parties
Applicant: M G Hammond; Applicant: M A Hammond; Respondent: Firstrand Bank Ltd; Respondent: Real People Housing (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 June 2011
Case Number
31452/10
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs.
Judges
M Tsoka
Legal Topics
Rescission of Judgment, Wilful Default, Bona Fide Defence, Prescription, Condonation
Civil Procedure Rescission of Judgment Wilful Default Bona Fide Defence Prescription Condonation

Case Brief

Summary, issues, holding and outcome

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Parties

M G Hammond

Applicant

M A Hammond

Applicant

Firstrand Bank Ltd

Respondent

Real People Housing (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants provided a reasonable and acceptable explanation for their default and delay in bringing the rescission application.
  2. 2 Whether the applicants have a bona fide defence with a prima facie prospect of success.
  3. 3 Whether the defence of prescription is applicable to the judgment debt.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable and convincing explanation for their 11-year delay in bringing the rescission application. The applicants were aware of the default judgment since 1999 and took no steps to challenge it, despite being notified of the sale in execution and subsequent events. Their explanation, based solely on the first applicant's alleged naivety, was inadequate. The court further held that the applicants did not establish a bona fide defence with any prospect of success. The defence of prescription was rejected as the judgment debt was ceded within two years, and the marital status issue was properly addressed in the bond documentation....

Court Disposition

Application for rescission of judgment dismissed with costs.

Orders

  • The application is dismissed with costs.