Khathi and Another v Standard Bank of South Africa Ltd and Another, Khathi and Another v Standard Bank of South Africa Ltd (3950/10, 2684/09) [2010] ZAKZPHC 59 (23 September 2010)

Khathi and Another v Standard Bank of South Africa Ltd and Another, Khathi and Another v Standard Bank of South Africa Ltd (3950/10, 2684/09) [2010] ZAKZPHC 59 (23 September 2010)

The Registrar was required to ensure strict compliance with Practice Directive no. 28 before granting default judgment, including the attachment of a certificate confirming compliance with section 129 of the National Credit Act. The absence of such a certificate and proof of compliance rendered the judgment erroneously granted under Rule 42(1)(a). The Registrar lacked the discretion to relax this requirement, and the entire judgment, not merely the executable portion, must be set aside. The applicants and the bank are each to bear their own costs, considering the conduct of both parties and the unnecessary duplication of proceedings.

Citation
[2010] ZAKZPHC 59
Parties
Applicant: Lomlani Joseph Khathi; Applicant: Nonhlanhla Maureen Khathi; Respondent: Standard Bank of South Africa Limited; Respondent: Anandan Govender
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
23 September 2010
Case Number
3950/10, 2684/09
Procedural Posture
Stay Application / Application for Recission of Default Judgment and Stay of Transfer
Outcome
Default judgment set aside; applicants granted leave to defend; each party to bear own costs.
Judges
Lopes
Legal Topics
Default Judgment, National Credit Act Compliance, Mortgage Bond Enforcement, Practice Directive, Recission of Judgment
Civil Procedure Banking and Finance Default Judgment National Credit Act Compliance Mortgage Bond Enforcement Practice Directive Recission of Judgment

Case Brief

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Parties

Lomlani Joseph Khathi

Applicant

Nonhlanhla Maureen Khathi

Applicant

Standard Bank of South Africa Limited

Respondent

Anandan Govender

Respondent

Procedural Posture

Stay Application / Application for Recission of Default Judgment and Stay of Transfer

Legal Issues

  1. 1 Whether the Registrar complied with Practice Directive no. 28 before granting default judgment.
  2. 2 Whether there was proof of compliance with sections 129 and 130 of the National Credit Act, 2005.
  3. 3 Whether the default judgment was erroneously granted as envisaged in Rule 42(1)(a) of the Uniform Rules.

Ratio Decidendi

The Registrar was required to ensure strict compliance with Practice Directive no. 28 before granting default judgment, including the attachment of a certificate confirming compliance with section 129 of the National Credit Act. The absence of such a certificate and proof of compliance rendered the judgment erroneously granted under Rule 42(1)(a). The Registrar lacked the discretion to relax this requirement, and the entire judgment, not merely the executable portion, must be set aside. The applicants and the bank are each to bear their own costs, considering the conduct of both parties and the unnecessary duplication of proceedings.

Court Disposition

Default judgment set aside; applicants granted leave to defend; each party to bear own costs.

Orders

  • The default judgment granted by the Registrar on 8 May 2009 under case no. 2684/09 is set aside.
  • The applicants are granted leave to defend the action; the dies for delivery of the plaintiff's declaration are to be calculated from the date of this judgment.