Khanyile and Another v Firstrand Bank Limited and Another (66225/2014) [2017] ZAGPPHC 1002 (10 November 2017)

Khanyile and Another v Firstrand Bank Limited and Another (66225/2014) [2017] ZAGPPHC 1002 (10 November 2017)

The court found that the applicants failed to provide a reasonable explanation for their default and did not disclose a bona fide defence with prospects of success. The payments made were insufficient to reinstate the agreement, and the application for rescission was not brought within the prescribed time nor accompanied by a request for condonation. The applicants admitted to being in arrears and did not provide any basis for the reinstatement of the agreement or for setting aside the sale in execution. The court concluded that the requirements for rescission under Rule 31(2)(b) and Rule 42 were not met, and there was no basis to set aside the sale or transfer of the property.

Citation
[2017] ZAGPPHC 1002
Parties
Applicant: Ntenhle Lungelo Khanyile; Applicant: Patricia Lynette Sithokozisile Mthimkulu; Respondent: Firstrand Bank Limited; Respondent: The Sheriff of the High Court, Boksburg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 November 2017
Case Number
66225/2014
Procedural Posture
Rescission Application / Opposed Application for Rescission of Default Judgment and Setting Aside of Sale in Execution
Outcome
Application dismissed with costs on an attorney and client scale.
Judges
T P Mudau
Legal Topics
Rescission of Judgment, Sale in Execution, Mortgage Bond Enforcement, Default Judgment, Condonation, Rule 31 2 B
Civil Procedure Land and Property Rescission of Judgment Sale in Execution Mortgage Bond Enforcement Default Judgment Condonation Rule 31 2 B

Case Brief

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Parties

Ntenhle Lungelo Khanyile

Applicant

Patricia Lynette Sithokozisile Mthimkulu

Applicant

Firstrand Bank Limited

Respondent

The Sheriff of the High Court, Boksburg

Respondent

Procedural Posture

Rescission Application / Opposed Application for Rescission of Default Judgment and Setting Aside of Sale in Execution

Legal Issues

  1. 1 Whether the applicants have established grounds for rescission of the default judgment granted on 25 August 2015.
  2. 2 Whether the sale in execution and transfer of the property should be set aside.
  3. 3 Whether the applicants have disclosed a bona fide defence with prospects of success.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable explanation for their default and did not disclose a bona fide defence with prospects of success. The payments made were insufficient to reinstate the agreement, and the application for rescission was not brought within the prescribed time nor accompanied by a request for condonation. The applicants admitted to being in arrears and did not provide any basis for the reinstatement of the agreement or for setting aside the sale in execution. The court concluded that the requirements for rescission under Rule 31(2)(b) and Rule 42 were not met, and there was no basis to set aside the sale or transfer of the property.

Court Disposition

Application dismissed with costs on an attorney and client scale.

Orders

  • The application for rescission of judgment is dismissed.
  • The application to set aside the sale in execution and transfer of the property is dismissed.