Makinta v Firstrand Bank Limited t/a Wesbank (49439/2018) [2019] ZAGPPHC 116 (18 April 2019)

Makinta v Firstrand Bank Limited t/a Wesbank (49439/2018) [2019] ZAGPPHC 116 (18 April 2019)

The court found that the First Respondent failed to comply with the requirements set out in Sebola regarding the delivery and pleading of statutory notices under Sections 129 and 130 of the National Credit Act. The particulars of claim did not allege the necessary facts to establish compliance, and the Registrar would not have granted default judgment had this been brought to attention. Accordingly, the judgment was erroneously granted and must be rescinded under Rule 42(1)(a) without further enquiry into good cause. The opposition by the First Respondent was deemed unreasonable, justifying a costs order in favour of the Applicant, including costs of senior counsel.

Citation
[2019] ZAGPPHC 116
Parties
Applicant: Mmaletseka Veronica Makinta (Mahlatji); Respondent: Firstrand Bank Limited t/a Wesbank; Respondent: The Sheriff of the High Court, Tshwane-North
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 April 2019
Case Number
49439/2018
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment Under Rule 42(1)(a)
Outcome
Application for rescission of default judgment granted; costs awarded to Applicant.
Judges
G.T. Avvakoumides
Legal Topics
Rescission of Judgment, Default Judgment, National Credit Act Compliance, Section 129 Notice, Section 130 Notice
Civil Procedure Rescission of Judgment Default Judgment National Credit Act Compliance Section 129 Notice Section 130 Notice

Case Brief

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Parties

Mmaletseka Veronica Makinta (Mahlatji)

Applicant

Firstrand Bank Limited t/a Wesbank

Respondent

The Sheriff of the High Court, Tshwane-North

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment Under Rule 42(1)(a)

Legal Issues

  1. 1 Whether the default judgment was erroneously sought or granted under Rule 42(1)(a).
  2. 2 Whether the First Respondent complied with the requirements of Sections 129 and 130 of the National Credit Act 34 of 2005 as interpreted in Sebola.
  3. 3 Whether the particulars of claim were excipiable for failure to plead necessary facts regarding delivery of statutory notices.

Ratio Decidendi

The court found that the First Respondent failed to comply with the requirements set out in Sebola regarding the delivery and pleading of statutory notices under Sections 129 and 130 of the National Credit Act. The particulars of claim did not allege the necessary facts to establish compliance, and the Registrar would not have granted default judgment had this been brought to attention. Accordingly, the judgment was erroneously granted and must be rescinded under Rule 42(1)(a) without further enquiry into good cause. The opposition by the First Respondent was deemed unreasonable, justifying a costs order in favour of the Applicant, including costs of senior counsel.

Court Disposition

Application for rescission of default judgment granted; costs awarded to Applicant.

Orders

  • The default judgment dated 5 June 2018 under case number 49439/2018 is hereby rescinded.
  • The First Respondent is ordered to pay the Applicant's costs.