Maseko v Firstrand Bank Limited and Others (16944/2014) [2018] ZAGPJHC 659 (13 December 2018)

Maseko v Firstrand Bank Limited and Others (16944/2014) [2018] ZAGPJHC 659 (13 December 2018)

The court found that the first respondent failed to comply with section 129 of the National Credit Act by not sending the required notice to the applicant's new address, despite being informed of the change. The provisions of section 129 are mandatory, and non-compliance renders subsequent legal proceedings a...

Source-derived case information.

Citation
[2018] ZAGPJHC 659
Parties
Applicant: Zodwa Vela Maseko; Respondent: Firstrand Bank Limited; Respondent: Deputy Sheriff of the High Court (Randburg West); Respondent: Motswako Trading; Respondent: Kgaugelo Mabudusha; Respondent: Registrar of Deeds
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 December 2018
Case Number
16944/2014
Procedural Posture
Rescission Application / Opposed Motion for Rescission of Default Judgments
Outcome
Application for rescission of both judgments granted; costs awarded against the first respondent.
Judges
Twala M L
Legal Topics
Rescission of Judgment, National Credit Act Compliance, Section 129 Notice, Mortgage Enforcement, Default Judgment, Sale in Execution
Civil Procedure Banking and Finance Rescission of Judgment National Credit Act Compliance Section 129 Notice Mortgage Enforcement Default Judgment Sale in Execution

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Parties

Zodwa Vela Maseko

Applicant

Firstrand Bank Limited

Respondent

Deputy Sheriff of the High Court (Randburg West)

Respondent

Motswako Trading

Respondent

Kgaugelo Mabudusha

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Rescission Application / Opposed Motion for Rescission of Default Judgments

Legal Issues

  1. 1 Whether the default judgments granted on 5 August 2014 and 27 February 2015 should be rescinded due to non-compliance with section 129 of the National Credit Act.
  2. 2 Whether the applicant forfeited her right to apply for rescission by acquiescing to the judgments.
  3. 3 Whether the section 129 notice was properly delivered to the applicant's correct address as required by law.

Ratio Decidendi

The court found that the first respondent failed to comply with section 129 of the National Credit Act by not sending the required notice to the applicant's new address, despite being informed of the change. The provisions of section 129 are mandatory, and non-compliance renders subsequent legal proceedings a nullity. The applicant did not abandon her right to apply for rescission, as evidenced by her actions and correspondence. The default judgments were therefore wrongly entered and must be rescinded. The declaratory judgment of 27 February 2015 was dependent on the monetary judgment of 5 August 2014 and must also be rescinded. The sale agreement between the respondents was cancelled,...

Court Disposition

Application for rescission of both judgments granted; costs awarded against the first respondent.

Orders

  • Both the judgments granted on 5 August 2014 and 27 February 2015 are rescinded.
  • The first respondent is to pay the costs of this application.