Manqele and Another v SB Guarentee Company (RF) (Pty) Ltd and Another (2023/050021) [2025] ZAGPJHC 381 (24 March 2025)

Manqele and Another v SB Guarentee Company (RF) (Pty) Ltd and Another (2023/050021) [2025] ZAGPJHC 381 (24 March 2025)

The court found that the sheriff's return of service, while prima facie evidence, was not conclusive in this case. Mr Manqele provided credible and corroborated evidence that he was not present at the property on the alleged service date, thus discharging the onus on a balance of probabilities. The sheriff's affidavit lacked sufficient verification of identity, and the supporting evidence did not establish personal service. As a result, the default judgment and writ of execution were erroneously granted and must be rescinded. Furthermore, since the money judgment against Ms Magakoa was inextricably linked to the bond judgment, its rescission follows as a matter of law. Costs were reserved...

Citation
[2025] ZAGPJHC 381
Parties
Applicant: Nkululeko Manqele; Applicant: Palesa Valentine Magakoa; Respondent: SB Guarantee Company (RF) (Pty) Ltd; Respondent: The Sheriff of the High Court, Sandton North
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 March 2025
Case Number
2023/050021
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Writ of Execution
Outcome
Default judgment and writ of execution rescinded; costs reserved.
Judges
A Mitchell
Legal Topics
Rescission of Judgment, Personal Service, Primary Residence Execution, Uniform Rule 46a, Default Judgment, Writ of Execution
Civil Procedure Land and Property Rescission of Judgment Personal Service Primary Residence Execution Uniform Rule 46a Default Judgment Writ of Execution

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Parties

Nkululeko Manqele

Applicant

Palesa Valentine Magakoa

Applicant

SB Guarantee Company (RF) (Pty) Ltd

Respondent

The Sheriff of the High Court, Sandton North

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Writ of Execution

Legal Issues

  1. 1 Whether the main application and court order were personally served on Mr Manqele as required by Rule 46A(3)(d).
  2. 2 Whether the default judgment and writ of execution were erroneously granted in the absence of the applicants.
  3. 3 Whether the applicants have discharged the onus to prove non-service on a balance of probabilities.

Ratio Decidendi

The court found that the sheriff's return of service, while prima facie evidence, was not conclusive in this case. Mr Manqele provided credible and corroborated evidence that he was not present at the property on the alleged service date, thus discharging the onus on a balance of probabilities. The sheriff's affidavit lacked sufficient verification of identity, and the supporting evidence did not establish personal service. As a result, the default judgment and writ of execution were erroneously granted and must be rescinded. Furthermore, since the money judgment against Ms Magakoa was inextricably linked to the bond judgment, its rescission follows as a matter of law. Costs were reserved...

Court Disposition

Default judgment and writ of execution rescinded; costs reserved.

Orders

  • The default judgment granted against Nkululeko Manqele and Palesa Valentine Magakoa on 11 September 2023 under case number 2023-050021 is rescinded.
  • Any writ of execution issued by SB Guarantee Company (RF) (Pty) Ltd pursuant to the court order dated 11 September 2023 under case number 2023-050021 is set aside.