Makola v Absa Bank Ltd (22543/2011) [2013] ZAGPPHC 144 (24 May 2013)

Makola v Absa Bank Ltd (22543/2011) [2013] ZAGPPHC 144 (24 May 2013)

The court found that the applicant failed to provide a bona fide defence to the respondent's claim and did not furnish a satisfactory explanation for the 15-month delay in bringing the application for rescission. The applicant conceded that Rule 42 was not applicable and did not set out facts that, if established at trial, would entitle him to relief. The court applied Rule 31(2)(b) but held that good cause was not shown, and the applicant's conduct was grossly negligent. Accordingly, the application for rescission was dismissed with costs.

Citation
[2013] ZAGPPHC 144
Parties
Plaintiff: Mamokgekgkge Ben Makola; Defendant: Absa Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 May 2013
Case Number
22543/2011
Procedural Posture
Rescission Application / Application to Rescind Default Judgment
Outcome
Application for rescission dismissed with costs.
Judges
Pretorius
Legal Topics
Rescission of Judgment, Default Judgment, Rule 42, Rule 31 2 B, Bona Fide Defence
Civil Procedure Rescission of Judgment Default Judgment Rule 42 Rule 31 2 B Bona Fide Defence

Case Brief

Summary, issues, holding and outcome

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Parties

Mamokgekgkge Ben Makola

Plaintiff

Absa Bank Limited

Defendant

Procedural Posture

Rescission Application / Application to Rescind Default Judgment

Legal Issues

  1. 1 Whether the applicant has shown good cause for rescission of the default judgment.
  2. 2 Whether Rule 42(1)(a) or Rule 31(2)(b) applies to the application.
  3. 3 Whether the applicant has set out a bona fide defence to the respondent's claim.

Ratio Decidendi

The court found that the applicant failed to provide a bona fide defence to the respondent's claim and did not furnish a satisfactory explanation for the 15-month delay in bringing the application for rescission. The applicant conceded that Rule 42 was not applicable and did not set out facts that, if established at trial, would entitle him to relief. The court applied Rule 31(2)(b) but held that good cause was not shown, and the applicant's conduct was grossly negligent. Accordingly, the application for rescission was dismissed with costs.

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed with costs.