Masenya and Others v Nedbank Limited and Others (89054/2014) [2018] ZAGPPHC 769 (16 March 2018)

Masenya and Others v Nedbank Limited and Others (89054/2014) [2018] ZAGPPHC 769 (16 March 2018)

The court found that the applicants failed to provide a reasonable explanation for their delay in bringing the application and for failing to defend the proceedings that led to the default judgment and sale in execution of the property. The applicants were in wilful default, disregarded multiple court orders, and failed in their fiduciary duties as executors. Their reliance on ignorance of the law and lack of funds was rejected as insufficient. The respondent had made repeated efforts to accommodate the applicants, but the estate remained unfinalised due to their inaction. Consequently, the application for rescission and stay was dismissed, and costs were awarded against the applicants.

Citation
[2018] ZAGPPHC 769
Parties
Applicant: Manoko Engelina Masenya; Applicant: Pheega Andrew Madiga NO; Applicant: Phillip Nkhure Madiga NO; Respondent: Nedbank Limited; Respondent: Master of the High Court Polokwane; Respondent: Thomas Grobler Attorneys
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 March 2018
Case Number
89054/2014
Procedural Posture
Stay Application / Final Judgment on Application for Stay and Rescission
Outcome
Application dismissed with costs awarded against the applicants.
Judges
S C Mia
Legal Topics
Rescission of Judgment, Stay of Execution, Mortgage Bond Enforcement, Liquidation and Distribution Account
Civil Procedure Land and Property Rescission of Judgment Stay of Execution Mortgage Bond Enforcement Liquidation and Distribution Account

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Manoko Engelina Masenya

Applicant

Pheega Andrew Madiga NO

Applicant

Phillip Nkhure Madiga NO

Applicant

Nedbank Limited

Respondent

Master of the High Court Polokwane

Respondent

Thomas Grobler Attorneys

Respondent

Procedural Posture

Stay Application / Final Judgment on Application for Stay and Rescission

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment granted against them.
  2. 2 Whether the transfer and execution of the immovable property should be stayed pending finalisation of the deceased estate.
  3. 3 Whether the applicants have complied with their fiduciary obligations as executors in winding up the estate.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable explanation for their delay in bringing the application and for failing to defend the proceedings that led to the default judgment and sale in execution of the property. The applicants were in wilful default, disregarded multiple court orders, and failed in their fiduciary duties as executors. Their reliance on ignorance of the law and lack of funds was rejected as insufficient. The respondent had made repeated efforts to accommodate the applicants, but the estate remained unfinalised due to their inaction. Consequently, the application for rescission and stay was dismissed, and costs were awarded against the applicants.

Court Disposition

Application dismissed with costs awarded against the applicants.

Orders

  • The application is dismissed.
  • The applicants are to pay the costs of this application.