January v Standard Bank of South Africa Ltd (2235/2008) [2010] ZAECGHC 6 (28 January 2010)

January v Standard Bank of South Africa Ltd (2235/2008) [2010] ZAECGHC 6 (28 January 2010)

The court found that the applicant failed to establish any grounds for rescission of the default judgment, as she was personally served with summons and advised by her attorney, but chose not to defend. The application was procedurally defective, having been struck off the roll multiple times due to lack of service and failure to join the new owner, Du Preez, whose rights would be directly affected by any order. The certificate of urgency did not comply with the rules, and no factual basis for urgency was established. The applicant proceeded against the wrong party regarding the eviction, as the respondent was not involved in those proceedings. The conduct of the applicant's attorney and...

Citation
[2010] ZAECGHC 6
Parties
Applicant: Penelope January; Respondent: Standard Bank of South Africa Limited
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
28 January 2010
Case Number
2235/2008
Procedural Posture
Urgent Application / Application for Interim Interdict and Rescission; Hearing and Judgment
Outcome
Application dismissed with punitive costs order against applicant's legal representatives.
Judges
G G Goosen
Legal Topics
Interim Interdict, Rescission of Judgment, Stay of Execution, Joinder of Parties, Costs De Bonis Propriis
Civil Procedure Land and Property Interim Interdict Rescission of Judgment Stay of Execution Joinder of Parties Costs De Bonis Propriis

Case Brief

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Parties

Penelope January

Applicant

Standard Bank of South Africa Limited

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict and Rescission; Hearing and Judgment

Legal Issues

  1. 1 Whether the applicant established grounds for rescission of the default judgment.
  2. 2 Whether the application for interim interdict and stay of execution was urgent and complied with procedural rules.
  3. 3 Whether the failure to join the new owner of the property (Du Preez) rendered the application fatally defective.

Ratio Decidendi

The court found that the applicant failed to establish any grounds for rescission of the default judgment, as she was personally served with summons and advised by her attorney, but chose not to defend. The application was procedurally defective, having been struck off the roll multiple times due to lack of service and failure to join the new owner, Du Preez, whose rights would be directly affected by any order. The certificate of urgency did not comply with the rules, and no factual basis for urgency was established. The applicant proceeded against the wrong party regarding the eviction, as the respondent was not involved in those proceedings. The conduct of the applicant's attorney and...

Court Disposition

Application dismissed with punitive costs order against applicant's legal representatives.

Orders

  • The application is dismissed.
  • The applicant's instructing attorney, Mr Ndunyana, and counsel, Mr Majeke, are ordered, jointly and severally, to pay the respondent's costs incidental to this application de bonis propriis on the scale as between attorney and client.