Hartley and Another v Firstrand Bank Limited and Another (27612/2010) [2014] ZAGPJHC 282 (24 October 2014)

Hartley and Another v Firstrand Bank Limited and Another (27612/2010) [2014] ZAGPJHC 282 (24 October 2014)

Although defective service ordinarily renders a judgment a nullity, the applicants in this matter unequivocally acquiesced to the default judgment by entering into a payment arrangement three months after judgment was granted. The doctrine of peremption applies, barring the applicants from seeking rescission. Their conduct is inconsistent with any intention to challenge the judgment, and the application for rescission must therefore fail.

Citation
[2014] ZAGPJHC 282
Parties
Applicant: Hartley, Roegshaan; Applicant: Hartley, Safiya; Respondent: Firstrand Bank Limited; Respondent: Matsobane Marokane
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 October 2014
Case Number
27612/2010
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment is dismissed with costs.
Judges
Mosikatsana
Legal Topics
Rescission of Judgment, Default Judgment, Service of Process, Peremption, Uniform Rules of Court
Civil Procedure Rescission of Judgment Default Judgment Service of Process Peremption Uniform Rules of Court

Case Brief

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 3 Authorities cited 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Hartley, Roegshaan

Applicant

Hartley, Safiya

Applicant

Firstrand Bank Limited

Respondent

Matsobane Marokane

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously granted due to defective service of process.
  2. 2 Whether the applicants' acquiescence to the judgment deprives them of the right to seek rescission.
  3. 3 Whether the doctrine of peremption applies to bar the rescission application.

Ratio Decidendi

Although defective service ordinarily renders a judgment a nullity, the applicants in this matter unequivocally acquiesced to the default judgment by entering into a payment arrangement three months after judgment was granted. The doctrine of peremption applies, barring the applicants from seeking rescission. Their conduct is inconsistent with any intention to challenge the judgment, and the application for rescission must therefore fail.

Court Disposition

Application for rescission of default judgment is dismissed with costs.

Orders

  • The application to rescind the default judgment granted against the applicants on 7 September 2010 and all attachments and sales in execution pursuant to such judgment is dismissed.
  • The applicants are ordered to pay the costs of the application.