Maria v Nedbank Limited ; In re : Nedbank Limited v Foley (80251/2014) [2016] ZAGPPHC 668 (4 August 2016)

Maria v Nedbank Limited ; In re : Nedbank Limited v Foley (80251/2014) [2016] ZAGPPHC 668 (4 August 2016)

The court found that the default judgment was not erroneously granted. Service of the notice of motion and section 129 notice was effected at the applicant's chosen domicilium address as stipulated in the mortgage bond, and the applicant failed to inform the respondent of any change prior to the application. The applicant, an attorney, was aware of the proceedings and failed to file a notice of intention to oppose or attend the hearing. The section 129 notice was properly dispatched, and the applicant was afforded an opportunity to cure her default through a payment arrangement, which she failed to honour. The respondent retained locus standi, as the alleged sale of the debt was...

Citation
[2016] ZAGPPHC 668
Parties
Applicant: Tania Maria Foley; Respondent: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 August 2016
Case Number
80251/2014
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs.
Judges
S M Wentzel
Legal Topics
Rescission of Judgment, Mortgage Bond Enforcement, Service of Process, National Credit Act Compliance, Constitutional Right to Housing
Civil Procedure Banking and Finance Rescission of Judgment Mortgage Bond Enforcement Service of Process National Credit Act Compliance Constitutional Right to Housing

Case Brief

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Parties

Tania Maria Foley

Applicant

Nedbank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously granted against the applicant.
  2. 2 Whether service of the notice of motion and section 129 notice was properly effected.
  3. 3 Whether the respondent had locus standi after alleged securitization of the debt.

Ratio Decidendi

The court found that the default judgment was not erroneously granted. Service of the notice of motion and section 129 notice was effected at the applicant's chosen domicilium address as stipulated in the mortgage bond, and the applicant failed to inform the respondent of any change prior to the application. The applicant, an attorney, was aware of the proceedings and failed to file a notice of intention to oppose or attend the hearing. The section 129 notice was properly dispatched, and the applicant was afforded an opportunity to cure her default through a payment arrangement, which she failed to honour. The respondent retained locus standi, as the alleged sale of the debt was...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The applicant's application for rescission is dismissed.
  • The applicant is ordered to pay the costs of the application.