Kombech and Another v Nedbank Limited and Others (74905/2015) [2017] ZAGPPHC 451 (2 August 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

In the matter between:

CASE NO: 74905/2015

DATE: 2017-08-04

Reportable: NO

Of interest to other judges: NO

Revised

PATIENCE

THOKO KOMBECH 1st

APPLICANT

DONALD

MUSA KOMBECH 2nd

APPLICANT

and

NEDBANK LIMITED 1st

RESPONDENT

SHERIFF,TEMBISA 2nd

RESPONDENT

DEEDS

OFFICE PRETORIA 3rd

RESPONDENT

Corma:

HUGHES J

REASONS

HUGHES J

[1] In these rescission application proceedings the applicants are Patience Thoko Kombech and Donald Musa Kombech. The respondents are Nedbank Limited, the Sheriff of Tembisa and the Deeds Office of Pretoria.

[2] On 2 August 2017 I duly dismissed the application for rescission by the applicants with costs.

[3] The respondent relevant in these proceedings is Nedbank Limited the first respondent.

[4] When the application was heard there was no appearance on behalf of the applicants. The applicants had not filed a replying affidavit nor heads of argument.

[5] The applicants sought to rescind an order granted by this court on 5 November 201 5. This order directed the applicants to pay an amount of R535 873.66 with interest in respect of a bond and loan agreement with first respondent. The order also declared the property held in respect of the bond to be declared specially executable.

[6] In their application the applicants do not set out whether the they seek the rescission in respect of the common law, rule 42(1)(a) or rule 32(1)(b).

[7] What does emerge though is that they allege that they did not receive the summons which the first respondent alleged was served. They state that it might be that the summons was served at the wrong address. They further allege that they became aware of the proceedings of the first respondent on 1July 2016. This was when they were approached by an agent who attended on their home. The agent inform them that their property was to be sold in a sale in execution. They contend that they were not in wilful default and that this good cause exist to grant the rescission.

[8] The first respondent on the other hand pointed out that the summons in the main application was served at the domicilium address of the applicant on 22 September 2015. It was received by a friend of the applicant who stated that he lived on the premises and that he would bring it to the attention of the applicants.

[9] Furthers to the aforesaid the first respondent states that applicants were aware of their failure to pay for their bond as far back as 16 March 2014. This was when a Distressed Restructure Agreement was entered into by the parties. The applicants in their founding papers for this rescission application confirm that they reside at Erf 6330 Munungu Street, Birch Acres extension 31, Kempton Park, which is also known as 13 Munungu Avenue Birch Acres Extension 31. This being the same address, the domicilium address where the summons had been served. So states the first respondent as regards service.

[10] There are no submissions advanced in with regard to good cause that exist on the papers of the applicants. Neither is there any submissions with regards to whether they prima facie case with prospects of success or at the least a bona fide defence to substantiate the grant of the rescission sought.

[11] For the reason contained herein I duly made the order sought by the respondent.

W. Hughes

Judge of the High Court Gauteng Pretoria