Kloberie v Absa Bank Ltd (7264/2013) [2013] ZAGPJHC 208 (16 August 2013)

Kloberie v Absa Bank Ltd (7264/2013) [2013] ZAGPJHC 208 (16 August 2013)

The court found that the applicant failed to provide a reasonable explanation for the delay in bringing the rescission application. On the probabilities, the applicant became aware of the default judgment on or soon after 13 September 2012, yet waited until 27 February 2013 to file the application. The applicant's conduct after becoming aware of the judgment, including her focus on stopping the sale in execution rather than seeking rescission, undermined her bona fides. The degree of non-compliance was extensive, and the applicant had not made payments since August 2011. The court was satisfied that the section 129 notice was properly sent to the applicant's chosen address. The...

Citation
[2013] ZAGPJHC 208
Parties
Applicant: Pearl Kloberie; Respondent: Absa Bank Limited; Respondent: Athol Geoffrey Harding; Respondent: Register of Deeds: Pretoria
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 August 2013
Case Number
7264/2013
Procedural Posture
Urgent Application / Application for Condonation for Late Filing of Rescission
Outcome
Application for condonation for the late filing of the rescission application dismissed.
Judges
Modiba
Legal Topics
Rescission of Judgment, Condonation, Default Judgment, Section 129 National Credit Act
Civil Procedure Banking and Finance Rescission of Judgment Condonation Default Judgment Section 129 National Credit Act

Case Brief

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Parties

Pearl Kloberie

Applicant

Absa Bank Limited

Respondent

Athol Geoffrey Harding

Respondent

Register of Deeds: Pretoria

Respondent

Procedural Posture

Urgent Application / Application for Condonation for Late Filing of Rescission

Legal Issues

  1. 1 Whether the applicant has shown good cause for condonation of the late filing of the rescission application.
  2. 2 Whether the applicant became aware of the default judgment on or before 13 September 2012.
  3. 3 Whether the applicant received proper notice in terms of section 129 of the National Credit Act.

Ratio Decidendi

The court found that the applicant failed to provide a reasonable explanation for the delay in bringing the rescission application. On the probabilities, the applicant became aware of the default judgment on or soon after 13 September 2012, yet waited until 27 February 2013 to file the application. The applicant's conduct after becoming aware of the judgment, including her focus on stopping the sale in execution rather than seeking rescission, undermined her bona fides. The degree of non-compliance was extensive, and the applicant had not made payments since August 2011. The court was satisfied that the section 129 notice was properly sent to the applicant's chosen address. The...

Court Disposition

Application for condonation for the late filing of the rescission application dismissed.

Orders

  • The application for condonation for the late filing of the rescission application is dismissed.
  • The applicant is ordered to pay the first and second respondents' costs of the application for condonation as well as wasted costs occasioned by the rescission application.