Makgato and Another v Absa Bank Limited and Others (47219/2007) [2017] ZAGPPHC 54 (21 February 2017)

Makgato and Another v Absa Bank Limited and Others (47219/2007) [2017] ZAGPPHC 54 (21 February 2017)

The court found that the applicants were aware of the default judgment as far back as November 2007, based on their communications with ABSA and repeated payments made to avoid execution sales. The explanation provided for the delay in bringing the rescission application was inadequate, as no account was given for the period preceding February 2015. The application was brought more than six years out of time, and the requirements of Rule 31(2)(b), Rule 42, and the common law were not met. There was no evidence of an irregularity or error in the proceedings, nor of a compromise or waiver by ABSA. The applicants failed to establish a bona fide defence or sufficient cause for rescission....

Citation
[2017] ZAGPPHC 54
Parties
Applicant: Mothabela Kgolo Ephraim Makgato; Applicant: Thizwilondi Sharon Makgato; Respondent: Absa Bank Limited; Respondent: Shammy Luvengo; Respondent: Registrar of Deeds
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 February 2017
Case Number
47219/2007
Procedural Posture
Rescission Application / Judgment on Rescission and Condonation
Outcome
Application for condonation for the period 17 February 2015 to 7 April 2015 granted; application for rescission of default judgment dismissed; costs awarded against applicants.
Judges
AC Basson
Legal Topics
Rescission of Judgment, Condonation, Default Judgment, Mortgage Enforcement, Sale in Execution
Civil Procedure Land and Property Rescission of Judgment Condonation Default Judgment Mortgage Enforcement Sale in Execution

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Parties

Mothabela Kgolo Ephraim Makgato

Applicant

Thizwilondi Sharon Makgato

Applicant

Absa Bank Limited

Respondent

Shammy Luvengo

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Rescission Application / Judgment on Rescission and Condonation

Legal Issues

  1. 1 Whether the applicants have provided a reasonable and acceptable explanation for the delay in bringing the rescission application.
  2. 2 Whether the applicants were aware of the default judgment prior to February 2015.
  3. 3 Whether the rescission application meets the requirements of Rule 31(2)(b), Rule 42, or the common law.

Ratio Decidendi

The court found that the applicants were aware of the default judgment as far back as November 2007, based on their communications with ABSA and repeated payments made to avoid execution sales. The explanation provided for the delay in bringing the rescission application was inadequate, as no account was given for the period preceding February 2015. The application was brought more than six years out of time, and the requirements of Rule 31(2)(b), Rule 42, and the common law were not met. There was no evidence of an irregularity or error in the proceedings, nor of a compromise or waiver by ABSA. The applicants failed to establish a bona fide defence or sufficient cause for rescission....

Court Disposition

Application for condonation for the period 17 February 2015 to 7 April 2015 granted; application for rescission of default judgment dismissed; costs awarded against applicants.

Orders

  • The application for condonation for the late filing of the rescission application for the period 17 February 2015 up until 7 April 2015 is granted.
  • The application to rescind the default judgment granted on 24 January 2008 is dismissed.