Marwick and Others v ABSA Bank Ltd and Others (3351/12) [2013] ZAKZPHC 26 (31 May 2013)

Marwick and Others v ABSA Bank Ltd and Others (3351/12) [2013] ZAKZPHC 26 (31 May 2013)

The court found that the applicants received section 129 notices and were properly advised of their rights prior to enforcement. The confessions to judgment were duly executed in compliance with rule 31(1), and the applicants acted in person, with verification affidavits confirming their signatures. There was no irregularity or fraud in the execution of the confessions. The order declaring the property executable was properly granted, and the applicants were informed of their constitutional rights in the summons. The Gundwana decision does not entitle the applicants to rescission in this case, as the requirements for rescission were not met and the facts did not warrant judicial...

Citation
[2013] ZAKZPHC 26
Parties
Applicant: Cheryl Dorothy Marwick; Applicant: Michael Connaire Marwick; Applicant: Charles Horner; Respondent: ABSA Bank Limited; Respondent: Sheriff of the Kwazulu-Natal High Court – Pietermaritzburg; Respondent: Registrar of Deeds
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
31 May 2013
Case Number
3351/12
Procedural Posture
Urgent Application / Application for Rescission of Judgment and Interim Relief
Outcome
Application for rescission and interim relief dismissed; costs awarded against applicants.
Judges
Stretch
Legal Topics
Rescission of Judgment, Mortgage Bond Enforcement, Section 129 Notice, Debt Review, Sale in Execution, Constitutional Right to Housing
Civil Procedure Banking and Finance Rescission of Judgment Mortgage Bond Enforcement Section 129 Notice Debt Review Sale in Execution Constitutional Right to Housing

Case Brief

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Parties

Cheryl Dorothy Marwick

Applicant

Michael Connaire Marwick

Applicant

Charles Horner

Applicant

ABSA Bank Limited

Respondent

Sheriff of the Kwazulu-Natal High Court – Pietermaritzburg

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Judgment and Interim Relief

Legal Issues

  1. 1 Whether the judgments granted on 19 and 20 November 2008 should be rescinded.
  2. 2 Whether ABSA complied with section 129 of the National Credit Act before enforcing the debt.
  3. 3 Whether the applicants were properly apprised of their rights and the consequences of signing confessions to judgment.

Ratio Decidendi

The court found that the applicants received section 129 notices and were properly advised of their rights prior to enforcement. The confessions to judgment were duly executed in compliance with rule 31(1), and the applicants acted in person, with verification affidavits confirming their signatures. There was no irregularity or fraud in the execution of the confessions. The order declaring the property executable was properly granted, and the applicants were informed of their constitutional rights in the summons. The Gundwana decision does not entitle the applicants to rescission in this case, as the requirements for rescission were not met and the facts did not warrant judicial...

Court Disposition

Application for rescission and interim relief dismissed; costs awarded against applicants.

Orders

  • The order granted by Justice Madondo on 20 November 2008 under case no. 4285/08 is amended by deletion of the words 'second defendant' wherever they may appear.
  • The rule nisi issued on 30 April 2012 is discharged.