Kisten N.O and Others v Absa Bank Limited and Others (AR179/15) [2016] ZAKZPHC 72 (23 August 2016)

Kisten N.O and Others v Absa Bank Limited and Others (AR179/15) [2016] ZAKZPHC 72 (23 August 2016)

The court found that the appellants' repeated payments to the respondent to stay execution were inconsistent with an intention to challenge the default judgment, amounting to acquiescence. The delay of four years in bringing the rescission application was unreasonable and not justified by the reasons advanced. The absence of a section 129 notice did not render the summons or judgment a nullity, as the appellants failed to show what remedy they would have pursued had the notice been included. Furthermore, the MSKC Family Trust is not protected under section 26 of the Constitution. The court held that the interests of justice and the need for finality in litigation outweighed the...

Citation
[2016] ZAKZPHC 72
Parties
Appellant: Shaun Kisten N.O; Appellant: Meena Kisten N.O; Appellant: Shaun Kisten; Appellant: Meena Kisten; Respondent: Absa Bank Limited; Respondent: Sheriff of the Court, Inanda District 2; Respondent: Registrar of Deeds for the Province of Kwazulu-Natal; Respondent: Purchaser at Sale in Execution
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
23 August 2016
Case Number
AR179/15
Procedural Posture
Civil Appeal / Appeal Against Refusal of Rescission of Default Judgment
Outcome
Appeal dismissed with costs.
Judges
Maharaj, Koen, Mnguni
Legal Topics
Rescission of Judgment, National Credit Act Compliance, Default Judgment, Section 129 Notice, Suretyship, Access to Housing
Civil Procedure Banking and Finance Rescission of Judgment National Credit Act Compliance Default Judgment Section 129 Notice Suretyship Access to Housing

Case Brief

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Parties

Shaun Kisten N.O

Appellant

Meena Kisten N.O

Appellant

Shaun Kisten

Appellant

Meena Kisten

Appellant

Absa Bank Limited

Respondent

Sheriff of the Court, Inanda District 2

Respondent

Registrar of Deeds for the Province of Kwazulu-Natal

Respondent

Purchaser at Sale in Execution

Respondent

Procedural Posture

Civil Appeal / Appeal Against Refusal of Rescission of Default Judgment

Legal Issues

  1. 1 Whether the failure to provide a section 129 notice under the National Credit Act invalidates the default judgment.
  2. 2 Whether the delay of four years in bringing the rescission application was reasonable.
  3. 3 Whether the MSKC Family Trust is protected under section 26 of the Constitution regarding eviction from property.

Ratio Decidendi

The court found that the appellants' repeated payments to the respondent to stay execution were inconsistent with an intention to challenge the default judgment, amounting to acquiescence. The delay of four years in bringing the rescission application was unreasonable and not justified by the reasons advanced. The absence of a section 129 notice did not render the summons or judgment a nullity, as the appellants failed to show what remedy they would have pursued had the notice been included. Furthermore, the MSKC Family Trust is not protected under section 26 of the Constitution. The court held that the interests of justice and the need for finality in litigation outweighed the...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.