Harrison and Another v Absa Bank Limited (7543/2013) [2016] ZAKZPHC 61 (17 June 2016)

Harrison and Another v Absa Bank Limited (7543/2013) [2016] ZAKZPHC 61 (17 June 2016)

The court found that the applicants had breached the debt restructuring order by failing to make required payments, including missing instalments and failing to pay since November 2013. The respondent was entitled to terminate debt review and enforce the credit agreement without further notice, as provided by the National Credit Act. The applicants were aware of the trial date and failed to ensure their attendance or seek a proper postponement. The judgment was not erroneously granted, as all relevant facts were before the court at the time. The applicants' reliance on Nkata v Firstrand Bank Limited was misplaced, as the facts did not support reinstatement of the credit agreement. The...

Citation
[2016] ZAKZPHC 61
Parties
Applicant: Philip Robert Harrison; Applicant: Pamela Harrison; Respondent: Absa Bank Limited
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
17 June 2016
Case Number
7543/2013
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs on attorney and client scale.
Judges
Seegobin
Legal Topics
Rescission of Judgment, Default Judgment, Debt Review, National Credit Act, Attorney and Client Costs
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment Debt Review National Credit Act Attorney and Client Costs

Case Brief

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Parties

Philip Robert Harrison

Applicant

Pamela Harrison

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 16 November 2015 was erroneously granted under Rule 42(1)(a).
  2. 2 Whether the applicants were in default of the debt restructuring order at the time the action was instituted.
  3. 3 Whether the respondent was entitled to enforce the credit agreement after termination of debt review.

Ratio Decidendi

The court found that the applicants had breached the debt restructuring order by failing to make required payments, including missing instalments and failing to pay since November 2013. The respondent was entitled to terminate debt review and enforce the credit agreement without further notice, as provided by the National Credit Act. The applicants were aware of the trial date and failed to ensure their attendance or seek a proper postponement. The judgment was not erroneously granted, as all relevant facts were before the court at the time. The applicants' reliance on Nkata v Firstrand Bank Limited was misplaced, as the facts did not support reinstatement of the credit agreement. The...

Court Disposition

Application for rescission dismissed with costs on attorney and client scale.

Orders

  • The application for rescission is dismissed.
  • The first and second applicants are ordered to pay the respondent’s costs of the application including the appearance on 2 June 2016, such costs to be paid on an attorney and client scale.