Landman and Others v Absa Bank Limited and Others (3300/2012) [2014] ZAECPEHC 94 (27 November 2014)

Landman and Others v Absa Bank Limited and Others (3300/2012) [2014] ZAECPEHC 94 (27 November 2014)

The court found that the applicants failed to establish a bona fide defence or provide a reasonable explanation for their default. The section 129 notices were properly served at the applicants' chosen domicilium, and their failure to notify the bank of their change of address precluded any fault on the bank's part. The second and third applicants, by acting jointly and signing the suretyships together, effectively gave the necessary spousal consent required under the Matrimonial Property Act. The applicants' liability under the suretyship was limited to R600,000.00, and the bank conceded that any judgment in excess of this amount should be rescinded. The application for rescission was...

Citation
[2014] ZAECPEHC 94
Parties
Applicant: Joseph Landman; Applicant: Riaan Visser; Applicant: Debbie Visser; Respondent: Absa Bank Limited; Respondent: Sheriff of the High Court; Respondent: Laura Ross NO; Respondent: Grant John Jurgen Eckermans NO; Respondent: Henry Ross; Respondent: Laura Ross
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
27 November 2014
Case Number
3300/2012
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed except for rescission of judgment against second and third applicants in excess of R600,000.00.
Judges
E Revelas
Legal Topics
Rescission of Judgment, Suretyship Liability, Section 129 National Credit Act, Matrimonial Property Act Section 15, Default Judgment, Costs De Bonis Propriis
Civil Procedure Banking and Finance Rescission of Judgment Suretyship Liability Section 129 National Credit Act Matrimonial Property Act Section 15 Default Judgment Costs De Bonis Propriis

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Parties

Joseph Landman

Applicant

Riaan Visser

Applicant

Debbie Visser

Applicant

Absa Bank Limited

Respondent

Sheriff of the High Court

Respondent

Laura Ross NO

Respondent

Grant John Jurgen Eckermans NO

Respondent

Henry Ross

Respondent

Laura Ross

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to rescission of the default judgment granted against them as sureties for the principal debtor.
  2. 2 Whether the applicants received proper notice in terms of section 129 of the National Credit Act.
  3. 3 Whether the suretyships signed by the second and third applicants were invalid for lack of spousal consent under section 15(2)(h) of the Matrimonial Property Act.

Ratio Decidendi

The court found that the applicants failed to establish a bona fide defence or provide a reasonable explanation for their default. The section 129 notices were properly served at the applicants' chosen domicilium, and their failure to notify the bank of their change of address precluded any fault on the bank's part. The second and third applicants, by acting jointly and signing the suretyships together, effectively gave the necessary spousal consent required under the Matrimonial Property Act. The applicants' liability under the suretyship was limited to R600,000.00, and the bank conceded that any judgment in excess of this amount should be rescinded. The application for rescission was...

Court Disposition

Application for rescission dismissed except for rescission of judgment against second and third applicants in excess of R600,000.00.

Orders

  • The application for rescission of the judgment obtained by the first respondent is dismissed, except that the portion of the judgment against the second and third applicants exceeding R600,000.00 is rescinded.
  • The first respondent's attorneys are to arrange a meeting between a representative of the first respondent and the second and third applicants to investigate the sale of the property at Geduldsrivier and the use of proceeds to extinguish the principal debtor's indebtedness.