Henry v Firstrand Bank Limited (86762/2016) [2018] ZAGPPHC 70 (1 March 2018)

Henry v Firstrand Bank Limited (86762/2016) [2018] ZAGPPHC 70 (1 March 2018)

The court found that the affidavits of the process server, Mr Mazibuko, were contradictory and internally inconsistent regarding the manner in which service was effected. The first affidavit stated that documents were left under the door, while the second claimed they were placed in a post box. These inconsistencies rendered the evidence unreliable and failed to establish that proper service was effected in accordance with the rules. As proper service is a prerequisite for default judgment, the court was not satisfied that the applicant was properly notified of the proceedings. Consequently, the default judgment granted on 9 March 2017 was set aside.

Citation
[2018] ZAGPPHC 70
Parties
Applicant: Roger Ian Henry; Respondent: Firstrand Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 March 2018
Case Number
86762/2016
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment granted.
Judges
S C Mia
Legal Topics
Rescission of Judgment, Proper Service, Default Judgment, Condonation
Civil Procedure Rescission of Judgment Proper Service Default Judgment Condonation

Case Brief

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Parties

Roger Ian Henry

Applicant

Firstrand Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether proper service of the summons and application for summary judgment was effected on the applicant.
  2. 2 Whether the default judgment granted on 9 March 2017 should be set aside due to improper service.

Ratio Decidendi

The court found that the affidavits of the process server, Mr Mazibuko, were contradictory and internally inconsistent regarding the manner in which service was effected. The first affidavit stated that documents were left under the door, while the second claimed they were placed in a post box. These inconsistencies rendered the evidence unreliable and failed to establish that proper service was effected in accordance with the rules. As proper service is a prerequisite for default judgment, the court was not satisfied that the applicant was properly notified of the proceedings. Consequently, the default judgment granted on 9 March 2017 was set aside.

Court Disposition

Application for rescission of default judgment granted.

Orders

  • The default judgment granted against the applicant on 9 March 2017 is set aside.
  • The defendant is ordered to file a plea within fifteen days of the grant of this order.