Mafoko and Another v Absa Bank Limited and Another (225/13) [2015] ZANWHC 18 (18 May 2015)

Mafoko and Another v Absa Bank Limited and Another (225/13) [2015] ZANWHC 18 (18 May 2015)

The court found that the first respondent complied with the requirements of the National Credit Act and relevant case law by sending the section 129 notice via registered post to the applicants' admitted domicilium address, with proof that it reached the correct post office. The applicants' denial of receipt was inconsequential given the evidence of delivery. Service of the summons was also found to be proper, as the sheriff served it at the correct address and the individual identified was confirmed to frequent the premises. Accordingly, there was no basis for rescission under Rule 42(1)(a), as the judgment was not erroneously sought or granted. The application for rescission was...

Citation
[2015] ZANWHC 18
Parties
Applicant: Dina Nkele Mafoko; Applicant: Pedro Paulo Nuvunga; Respondent: Absa Bank Limited; Respondent: The Registrar of Deeds
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
18 May 2015
Case Number
225/13
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs.
Judges
R D Hendricks
Legal Topics
Rescission of Judgment, National Credit Act Compliance, Service of Process, Registered Post Notice
Civil Procedure Banking and Finance Rescission of Judgment National Credit Act Compliance Service of Process Registered Post Notice

Case Brief

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Parties

Dina Nkele Mafoko

Applicant

Pedro Paulo Nuvunga

Applicant

Absa Bank Limited

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously sought or granted in the absence of the applicants.
  2. 2 Whether the requirements of section 129 and 130 of the National Credit Act were complied with by the first respondent.
  3. 3 Whether proper service of the summons and section 129 notice was effected on the applicants.

Ratio Decidendi

The court found that the first respondent complied with the requirements of the National Credit Act and relevant case law by sending the section 129 notice via registered post to the applicants' admitted domicilium address, with proof that it reached the correct post office. The applicants' denial of receipt was inconsequential given the evidence of delivery. Service of the summons was also found to be proper, as the sheriff served it at the correct address and the individual identified was confirmed to frequent the premises. Accordingly, there was no basis for rescission under Rule 42(1)(a), as the judgment was not erroneously sought or granted. The application for rescission was...

Court Disposition

Application for rescission of judgment dismissed with costs.

Orders

  • The application for rescission of the judgment granted against the applicants by default on 16 May 2013 is dismissed with costs.
  • The costs shall be taxable on the scale as between attorney and client.