Makhudu and Another v Standard Bank (28822/11) [2015] ZAGPPHC 40 (5 February 2015)

Makhudu and Another v Standard Bank (28822/11) [2015] ZAGPPHC 40 (5 February 2015)

The court found that the applicants failed to provide a satisfactory and detailed explanation for the 27-month delay in bringing the rescission application. The applicants were aware of the default judgment as early as October 2011 but only filed for rescission in February 2014, with no adequate account of the obstacles causing the delay. The applicants did not rebut the respondent's evidence of proper service of summons and section 129 notice, as required by law at the time. The alleged agreement to set aside the judgment upon payment of arrears was unsupported by the facts and did not constitute a bona fide defence. The cumulative effect of the unexplained delay, lack of prospects of...

Citation
[2015] ZAGPPHC 40
Parties
Applicant: Calvin Mogale Makhudu; Applicant: Elsie Sewela Makhudu; Respondent: Standard Bank
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 February 2015
Case Number
28822/11
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment Under Rule 42
Outcome
Application for condonation for late filing and rescission of judgment dismissed with costs.
Judges
Moseamo
Legal Topics
Rescission of Judgment, Service of Process, National Credit Act Section 129, Condonation, Default Judgment
Civil Procedure Banking and Finance Rescission of Judgment Service of Process National Credit Act Section 129 Condonation Default Judgment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 8 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

Calvin Mogale Makhudu

Applicant

Elsie Sewela Makhudu

Applicant

Standard Bank

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment Under Rule 42

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment under Rule 42.
  2. 2 Whether the applicants provided a satisfactory explanation for the delay in bringing the rescission application.
  3. 3 Whether the applicants were properly served with summons and section 129 notice under the National Credit Act.

Ratio Decidendi

The court found that the applicants failed to provide a satisfactory and detailed explanation for the 27-month delay in bringing the rescission application. The applicants were aware of the default judgment as early as October 2011 but only filed for rescission in February 2014, with no adequate account of the obstacles causing the delay. The applicants did not rebut the respondent's evidence of proper service of summons and section 129 notice, as required by law at the time. The alleged agreement to set aside the judgment upon payment of arrears was unsupported by the facts and did not constitute a bona fide defence. The cumulative effect of the unexplained delay, lack of prospects of...

Court Disposition

Application for condonation for late filing and rescission of judgment dismissed with costs.

Orders

  • The applicants' application for condonation for the late filing of this application is dismissed with costs.