Mbebe and Another v Absa Bank Ltd and Others (3874/2012) [2013] ZAFSHC 164 (19 September 2013)

Mbebe and Another v Absa Bank Ltd and Others (3874/2012) [2013] ZAFSHC 164 (19 September 2013)

The court found that the applicants failed to provide a reasonable explanation for their delay in seeking rescission and did not disclose a bona fide defence to Absa's claim. The movable assets identified did not belong to the applicants but to a close corporation, and no evidence was provided that these assets could satisfy the debt. The applicants acquiesced to the default judgment by their conduct and did not demonstrate that the property was their primary residence or that constitutional protection under section 26 was warranted. The facts did not support the setting aside of the writ of execution or the sale in execution as a just and equitable remedy. The requirements set out in...

Citation
[2013] ZAFSHC 164
Parties
Applicant: Thamsanqa Joseph Mbebe; Applicant: Matshabalala Lavina Mbebe; Respondent: Absa Bank Limited; Respondent: Wessel du Plessis; Respondent: Barend du Plessis; Respondent: Neelofair Issa; Respondent: Junaid Isaa; Respondent: The Sheriff for the High Court, Bloemfontein; Respondent: Registrar of Deeds – Free State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 September 2013
Case Number
3874/2012
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application dismissed with costs.
Judges
B C Mocumie
Legal Topics
Rescission of Default Judgment, Declaration of Executability, Primary Residence Protection, Rule 45 and Rule 46, Section 26 Constitution, Sale in Execution
Civil Procedure Constitutional Law Land and Property Rescission of Default Judgment Declaration of Executability Primary Residence Protection Rule 45 and Rule 46 Section 26 Constitution +1 more

Case Brief

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Parties

Thamsanqa Joseph Mbebe

Applicant

Matshabalala Lavina Mbebe

Applicant

Absa Bank Limited

Respondent

Wessel du Plessis

Respondent

Barend du Plessis

Respondent

Neelofair Issa

Respondent

Junaid Isaa

Respondent

The Sheriff for the High Court, Bloemfontein

Respondent

Registrar of Deeds – Free State

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment and writ of execution granted by the Registrar were irregular and invalid.
  2. 2 Whether the sale in execution of the applicants' property should be set aside as unlawful.
  3. 3 Whether the applicants satisfied the requirements for rescission of judgment under the relevant rules and common law.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable explanation for their delay in seeking rescission and did not disclose a bona fide defence to Absa's claim. The movable assets identified did not belong to the applicants but to a close corporation, and no evidence was provided that these assets could satisfy the debt. The applicants acquiesced to the default judgment by their conduct and did not demonstrate that the property was their primary residence or that constitutional protection under section 26 was warranted. The facts did not support the setting aside of the writ of execution or the sale in execution as a just and equitable remedy. The requirements set out in...

Court Disposition

Application dismissed with costs.

Orders

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