Langa and Another v Absa Bank Limited (64413/12) [2014] ZAGPPHC 309 (28 May 2014)

Langa and Another v Absa Bank Limited (64413/12) [2014] ZAGPPHC 309 (28 May 2014)

The court found that the applicants were not in wilful default, as they believed an arrangement with the respondent had stayed the action against them. Their continued monthly payments supported their bona fide belief that the matter was resolved. The court accepted their explanation for the default and granted condonation for the late filing of the rescission application. Furthermore, the applicants established a bona fide defence with prospects of success, as there was evidence of a disputed arrangement regarding the arrears and payment terms. The default judgment was therefore rescinded and set aside.

Citation
[2014] ZAGPPHC 309
Parties
Applicant: David Nkube Langa; Applicant: Mpho Lizzah Langa; Respondent: Absa Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 May 2014
Case Number
64413/12
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment rescinded and set aside.
Judges
C Pretorius
Legal Topics
Rescission of Default Judgment, Mortgage Bond Enforcement, Condonation, Wilful Default, Bona Fide Defence
Civil Procedure Banking and Finance Rescission of Default Judgment Mortgage Bond Enforcement Condonation Wilful Default Bona Fide Defence

Case Brief

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Parties

David Nkube Langa

Applicant

Mpho Lizzah Langa

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment.
  2. 2 Whether condonation for late filing of the rescission application should be granted.
  3. 3 Whether the applicants were in wilful default or had a reasonable explanation for their default.

Ratio Decidendi

The court found that the applicants were not in wilful default, as they believed an arrangement with the respondent had stayed the action against them. Their continued monthly payments supported their bona fide belief that the matter was resolved. The court accepted their explanation for the default and granted condonation for the late filing of the rescission application. Furthermore, the applicants established a bona fide defence with prospects of success, as there was evidence of a disputed arrangement regarding the arrears and payment terms. The default judgment was therefore rescinded and set aside.

Court Disposition

Application for rescission granted; default judgment rescinded and set aside.

Orders

  • Condonation is granted to the applicants for the late filing of this application, outside of the time period of 20 days allowed in terms of the Rules.
  • Default judgment granted by the Registrar of this Court on 28 February 2013 under case number 64413/2012 against the first and second applicants in favour of the respondent is rescinded and set aside.