Makaula and Another v Nedbank Ltd (1523/2012) [2012] ZAECPEHC 69 (14 September 2012)

Makaula and Another v Nedbank Ltd (1523/2012) [2012] ZAECPEHC 69 (14 September 2012)

The application was dismissed because the respondent had complied with section 129(1) of the National Credit Act by sending the required notices to both applicants' addresses and effecting personal service through the Sheriff. The first applicant's denial of service was not credible, given the documentary evidence and the absence of a replying affidavit. The allegation of cession of rights was unsubstantiated and refuted by the respondent. The contract relied upon was not shown to be defective. The applicants were in substantial arrears and had not demonstrated any ability to repay the debt. The mortgaged property was not the first applicant's primary residence, and there was no...

Citation
[2012] ZAECPEHC 69
Parties
Applicant: Vuyani Makaula; Applicant: Sisanda Ndlungwane; Respondent: Nedbank Limited
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
14 September 2012
Case Number
1523/2012
Procedural Posture
Urgent Application / Application for Stay of Execution
Outcome
Application dismissed with costs; only the first applicant is ordered to pay costs.
Judges
P.W Tshiki
Legal Topics
National Credit Act Compliance, Stay of Execution, Service of Process, Mortgage Bond Enforcement, Personal Service, Default Judgment
Civil Procedure Banking and Finance National Credit Act Compliance Stay of Execution Service of Process Mortgage Bond Enforcement Personal Service Default Judgment

Case Brief

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Parties

Vuyani Makaula

Applicant

Sisanda Ndlungwane

Applicant

Nedbank Limited

Respondent

Procedural Posture

Urgent Application / Application for Stay of Execution

Legal Issues

  1. 1 Whether the respondent complied with section 129(1) of the National Credit Act before instituting legal proceedings.
  2. 2 Whether the respondent had locus standi to sue, given the alleged cession of rights to another entity.
  3. 3 Whether the first applicant was properly served with the notice of application to declare the property executable.

Ratio Decidendi

The application was dismissed because the respondent had complied with section 129(1) of the National Credit Act by sending the required notices to both applicants' addresses and effecting personal service through the Sheriff. The first applicant's denial of service was not credible, given the documentary evidence and the absence of a replying affidavit. The allegation of cession of rights was unsubstantiated and refuted by the respondent. The contract relied upon was not shown to be defective. The applicants were in substantial arrears and had not demonstrated any ability to repay the debt. The mortgaged property was not the first applicant's primary residence, and there was no...

Court Disposition

Application dismissed with costs; only the first applicant is ordered to pay costs.

Orders

  • The application is dismissed with costs.
  • Only the first applicant is ordered to pay the costs of this application.