Lansberg and Another v Absa Bank Limited and Another (24146/2016) [2018] ZAGPPHC 22 (16 February 2018)

Lansberg and Another v Absa Bank Limited and Another (24146/2016) [2018] ZAGPPHC 22 (16 February 2018)

The court found that the applicants failed to provide a reasonable explanation for their default, as they were made aware of the pending litigation and signed a document indicating they would not contest the action. The applicants did not advance any bona fide defence with prospects of success, having admitted to falling into arrears and making arrangements to pay off the debt. The contention that the section 129 notice was not received was rejected, as evidence showed it was collected by the second applicant. The court held that judicial oversight was exercised in granting the order declaring the property executable, and the requirements for rescission under common law and the rules were...

Citation
[2018] ZAGPPHC 22
Parties
Applicant: Isgak Lanserg; Applicant: Aaliyah Lansberg; Respondent: Absa Bank Limited; Respondent: Sheriff Wonderbogm
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 February 2018
Case Number
24146/2016
Procedural Posture
Review Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment dismissed with costs on attorney and client scale.
Judges
Thobane
Legal Topics
Rescission of Default Judgment, Mortgage Bond Enforcement, Service of Process, National Credit Act Compliance, Judicial Oversight in Execution
Civil Procedure Banking and Finance Rescission of Default Judgment Mortgage Bond Enforcement Service of Process National Credit Act Compliance Judicial Oversight in Execution

Case Brief

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Parties

Isgak Lanserg

Applicant

Aaliyah Lansberg

Applicant

Absa Bank Limited

Respondent

Sheriff Wonderbogm

Respondent

Procedural Posture

Review Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown sufficient cause for rescission of the default judgment.
  2. 2 Whether service of the section 129 notice and summons was properly effected.
  3. 3 Whether judicial oversight was exercised in granting the order declaring the property executable.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable explanation for their default, as they were made aware of the pending litigation and signed a document indicating they would not contest the action. The applicants did not advance any bona fide defence with prospects of success, having admitted to falling into arrears and making arrangements to pay off the debt. The contention that the section 129 notice was not received was rejected, as evidence showed it was collected by the second applicant. The court held that judicial oversight was exercised in granting the order declaring the property executable, and the requirements for rescission under common law and the rules were...

Court Disposition

Application for rescission of default judgment dismissed with costs on attorney and client scale.

Orders

  • The application is dismissed with costs on attorney and client scale.