Madikane v Nedbank Limited and Others (19754/08) [2018] ZAGPPHC 686 (14 September 2018)

Madikane v Nedbank Limited and Others (19754/08) [2018] ZAGPPHC 686 (14 September 2018)

The court found that the applicant failed to provide a credible explanation for his default and the extensive delay in bringing the rescission application. Evidence showed the applicant was aware of the judgment and sale in execution years before the application was launched, and had made payment arrangements with the respondent, indicating acquiescence. The applicant did not establish a bona fide defence, as substantial arrears remained and his claims of full repayment were contradicted by his own documents. Alleged irregularities in service and lack of judicial oversight were not properly raised or substantiated, and in any event, the delay in seeking relief was fatal. The requirements...

Citation
[2018] ZAGPPHC 686
Parties
Applicant: Lungile Madikane; Respondent: Nedbank Limited; Respondent: Lesego Michael Molemane; Respondent: Motapanyane Ntsoaki Sylvia; Respondent: Sheriff of the High Court for the District of Alberton
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 September 2018
Case Number
19754/08
Procedural Posture
Rescission Application / Judgment
Outcome
Application dismissed with costs.
Judges
Erasmus
Legal Topics
Rescission of Judgment, Condonation, Sale in Execution, Section 129 National Credit Act, Judicial Oversight, Default Judgment
Civil Procedure Land and Property Rescission of Judgment Condonation Sale in Execution Section 129 National Credit Act Judicial Oversight Default Judgment

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Parties

Lungile Madikane

Applicant

Nedbank Limited

Respondent

Lesego Michael Molemane

Respondent

Motapanyane Ntsoaki Sylvia

Respondent

Sheriff of the High Court for the District of Alberton

Respondent

Procedural Posture

Rescission Application / Judgment

Legal Issues

  1. 1 Whether the applicant provided a satisfactory explanation for his default and delay in bringing the rescission application.
  2. 2 Whether the applicant established a bona fide defence to the claim.
  3. 3 Whether irregular service of summons or lack of judicial oversight in declaring the property executable justified rescission of judgment.

Ratio Decidendi

The court found that the applicant failed to provide a credible explanation for his default and the extensive delay in bringing the rescission application. Evidence showed the applicant was aware of the judgment and sale in execution years before the application was launched, and had made payment arrangements with the respondent, indicating acquiescence. The applicant did not establish a bona fide defence, as substantial arrears remained and his claims of full repayment were contradicted by his own documents. Alleged irregularities in service and lack of judicial oversight were not properly raised or substantiated, and in any event, the delay in seeking relief was fatal. The requirements...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.