Mathebula and Another v Standard Bank of South Africa Limited and Others (2012/9223) [2018] ZAGPPHC 306 (26 April 2018)

Mathebula and Another v Standard Bank of South Africa Limited and Others (2012/9223) [2018] ZAGPPHC 306 (26 April 2018)

The court found that the applicants were extremely dilatory in launching the rescission application, having waited over four years after the judgment and more than two years after becoming aware of it. No application for condonation was made, and the explanation for the delay was inadequate. The court held that even if the judgment was erroneously granted due to improper service, the discretion to grant rescission must be exercised in light of the unreasonable delay and lack of condonation. The applicants failed to provide sufficient evidence of a bona fide defence or of any fraudulent scheme regarding the sale of the property. The property had already been transferred to the third...

Citation
[2018] ZAGPPHC 306
Parties
Applicant: Mathebula, Yuza Barclays; Applicant: Mathebula, Staff Caroline; Respondent: Standard Bank of South Africa Limited; Respondent: Sheriff Tembisa, Mr Ace Tayob; Respondent: Nkhumise, Tsienyane Anna; Respondent: Elias Masola; Respondent: Registrar of Deeds Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 April 2018
Case Number
2012/9223
Procedural Posture
Rescission Application / Final Judgment
Outcome
Application for rescission dismissed with costs on attorney and own client scale.
Judges
Mokose
Legal Topics
Rescission of Judgment, Service of Process, Mortgage Bond Enforcement, Sale in Execution
Civil Procedure Land and Property Rescission of Judgment Service of Process Mortgage Bond Enforcement Sale in Execution

Case Brief

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Parties

Mathebula, Yuza Barclays

Applicant

Mathebula, Staff Caroline

Applicant

Standard Bank of South Africa Limited

Respondent

Sheriff Tembisa, Mr Ace Tayob

Respondent

Nkhumise, Tsienyane Anna

Respondent

Elias Masola

Respondent

Registrar of Deeds Pretoria

Respondent

Procedural Posture

Rescission Application / Final Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to rescission of the default judgment under Rule 42(1)(a).
  2. 2 Whether the application for rescission was brought within a reasonable time and whether condonation should be granted.
  3. 3 Whether service of summons was effected at the correct domicilium address as per the loan agreement.

Ratio Decidendi

The court found that the applicants were extremely dilatory in launching the rescission application, having waited over four years after the judgment and more than two years after becoming aware of it. No application for condonation was made, and the explanation for the delay was inadequate. The court held that even if the judgment was erroneously granted due to improper service, the discretion to grant rescission must be exercised in light of the unreasonable delay and lack of condonation. The applicants failed to provide sufficient evidence of a bona fide defence or of any fraudulent scheme regarding the sale of the property. The property had already been transferred to the third...

Court Disposition

Application for rescission dismissed with costs on attorney and own client scale.

Orders

  • The application to set aside the order of court is dismissed with costs on the attorney and own client scale.