Mekgoe v Firstrand Bank Ltd and Others (28687/2010) [2015] ZAGPJHC 45 (25 February 2015)

Mekgoe v Firstrand Bank Ltd and Others (28687/2010) [2015] ZAGPJHC 45 (25 February 2015)

The applicant failed to provide any explanation for her default in appearance and did not establish a bona fide defence with prospects of success. The Quick Sale Plan agreement was irrelevant, having expired and reserving the bank's rights. The default judgment was lawfully obtained prior to the Constitutional Court's declaration of unconstitutionality in Gundwana, and the applicant did not meet the requirements for retrospective relief. The third respondent was a bona fide purchaser, and rescission would unjustly prejudice its interests. The applicant had not demonstrated any financial ability or defence to the bank's claim. Accordingly, there was no basis to interfere with the status...

Citation
[2015] ZAGPJHC 45
Parties
Applicant: Nnyane Josephine Mekgoe; Respondent: Firstrand Bank Ltd; Respondent: The Sheriff of the High Court Randburg; Respondent: Vision Point Properties CC; Respondent: Registrar of Deeds
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 February 2015
Case Number
28687/2010
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Related Relief
Outcome
Application dismissed with costs.
Judges
FHD Van Oosten
Legal Topics
Rescission of Default Judgment, Sale in Execution, Bona Fide Purchaser, Judicial Oversight, National Credit Act
Civil Procedure Land and Property Rescission of Default Judgment Sale in Execution Bona Fide Purchaser Judicial Oversight National Credit Act

Case Brief

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Parties

Nnyane Josephine Mekgoe

Applicant

Firstrand Bank Ltd

Respondent

The Sheriff of the High Court Randburg

Respondent

Vision Point Properties CC

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Related Relief

Legal Issues

  1. 1 Whether the applicant provided a reasonable and acceptable explanation for her default in appearance.
  2. 2 Whether the applicant established a bona fide defence with prospects of success to justify rescission of the default judgment.
  3. 3 Whether the sale in execution and subsequent transfer of the property to the third respondent should be declared unlawful and reversed.

Ratio Decidendi

The applicant failed to provide any explanation for her default in appearance and did not establish a bona fide defence with prospects of success. The Quick Sale Plan agreement was irrelevant, having expired and reserving the bank's rights. The default judgment was lawfully obtained prior to the Constitutional Court's declaration of unconstitutionality in Gundwana, and the applicant did not meet the requirements for retrospective relief. The third respondent was a bona fide purchaser, and rescission would unjustly prejudice its interests. The applicant had not demonstrated any financial ability or defence to the bank's claim. Accordingly, there was no basis to interfere with the status...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the first and third respondents' costs of the application.