Manemela and Others v Absa Bank Limited and Others (82660/2014) [2018] ZAGPPHC 421 (4 June 2018)

Manemela and Others v Absa Bank Limited and Others (82660/2014) [2018] ZAGPPHC 421 (4 June 2018)

The court found that the first applicant lacked locus standi to bring the rescission and stay applications, as he was neither a party to the loan agreement nor a co-owner of the property subject to the mortgage bond. The applicant failed to provide evidence of authority to act for the other applicants and did not meet the requirements for rescission under Rule 31, Rule 42, or common law. The absence of a replying affidavit and heads of argument further undermined the application. The court held that the applicant's conduct constituted an abuse of process, justifying a punitive costs order. Both applications were dismissed, and the first applicant was ordered to pay costs on the attorney...

Citation
[2018] ZAGPPHC 421
Parties
Applicant: Senzosenkosi Templeton Menemela; Applicant: Avril Menemela; Applicant: Euclide Khumbulani Luthuli; Applicant: Sizakele Lynette Luthuli; Respondent: Absa Bank Limited; Respondent: Sheriff: Kempton Park; Respondent: Registrar of Deeds: Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 June 2018
Case Number
82660/2014
Procedural Posture
Stay Application / Application for Rescission of Judgment and Stay of Sale in Execution
Outcome
Both the rescission and stay applications are dismissed. The first applicant is ordered to pay the costs of both applications on the attorney and client scale.
Judges
Dewrance
Legal Topics
Rescission of Judgment, Stay of Execution, Locus Standi, Default Judgment, Mortgage Bond, Punitive Costs
Civil Procedure Land and Property Rescission of Judgment Stay of Execution Locus Standi Default Judgment Mortgage Bond Punitive Costs

Case Brief

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Parties

Senzosenkosi Templeton Menemela

Applicant

Avril Menemela

Applicant

Euclide Khumbulani Luthuli

Applicant

Sizakele Lynette Luthuli

Applicant

Absa Bank Limited

Respondent

Sheriff: Kempton Park

Respondent

Registrar of Deeds: Pretoria

Respondent

Procedural Posture

Stay Application / Application for Rescission of Judgment and Stay of Sale in Execution

Legal Issues

  1. 1 Whether the first applicant has locus standi to bring the rescission and stay applications.
  2. 2 Whether the requirements for rescission of judgment under Rule 31, Rule 42, or common law are met.
  3. 3 Whether the application to stay the sale in execution is supported by sufficient allegations.

Ratio Decidendi

The court found that the first applicant lacked locus standi to bring the rescission and stay applications, as he was neither a party to the loan agreement nor a co-owner of the property subject to the mortgage bond. The applicant failed to provide evidence of authority to act for the other applicants and did not meet the requirements for rescission under Rule 31, Rule 42, or common law. The absence of a replying affidavit and heads of argument further undermined the application. The court held that the applicant's conduct constituted an abuse of process, justifying a punitive costs order. Both applications were dismissed, and the first applicant was ordered to pay costs on the attorney...

Court Disposition

Both the rescission and stay applications are dismissed. The first applicant is ordered to pay the costs of both applications on the attorney and client scale.

Orders

  • Both applications are dismissed.
  • The first applicant, Mr Senzosenkosi Templeton Menemela, is to pay the costs of both applications on the attorney and client scale.