Mahomed and Another v Absa Bank Limited and Others (3858/2007) [2017] ZAGPPHC 756 (7 November 2017)

Mahomed and Another v Absa Bank Limited and Others (3858/2007) [2017] ZAGPPHC 756 (7 November 2017)

The court found that the applicants failed to provide a reasonable explanation for their default and did not bring the rescission application within a reasonable time as required by Rule 31(2)(b). The applicants' defences were without merit: the court was entitled to declare the property specially executable, and both applicants had signed the loan agreement. The applicants did not apply for condonation for the late filing, and their conduct indicated an intention to delay the transfer of the property rather than a bona fide attempt to defend the claim. The application was deemed an abuse of court process and dismissed with costs on an attorney and client scale.

Citation
[2017] ZAGPPHC 756
Parties
Applicant: Abdulhamid Ebrahim Mahomed; Applicant: Khatija Dawood Mahomed; Respondent: Absa Bank Limited; Respondent: Shabir Ebrahim Moti; Respondent: The Sheriff of the High Court Pretoria South West
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 November 2017
Case Number
3858/2007
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs on the attorney and client scale.
Judges
TP Mudau
Legal Topics
Rescission of Judgment, Default Judgment, Special Executability, Mortgage Bond Enforcement, Condonation, Abuse of Process
Civil Procedure Land and Property Rescission of Judgment Default Judgment Special Executability Mortgage Bond Enforcement Condonation Abuse of Process

Case Brief

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Parties

Abdulhamid Ebrahim Mahomed

Applicant

Khatija Dawood Mahomed

Applicant

Absa Bank Limited

Respondent

Shabir Ebrahim Moti

Respondent

The Sheriff of the High Court Pretoria South West

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 granted on 13 April 2015.
  2. 2 Whether the application for rescission was brought within a reasonable time as required by Rule 31(2)(b).
  3. 3 Whether the applicants have a bona fide defence with prospects of success.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable explanation for their default and did not bring the rescission application within a reasonable time as required by Rule 31(2)(b). The applicants' defences were without merit: the court was entitled to declare the property specially executable, and both applicants had signed the loan agreement. The applicants did not apply for condonation for the late filing, and their conduct indicated an intention to delay the transfer of the property rather than a bona fide attempt to defend the claim. The application was deemed an abuse of court process and dismissed with costs on an attorney and client scale.

Court Disposition

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

Orders

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