Mkhonza v Absa Bank Limited and Another (7819/2009) [2014] ZAGPPHC 841 (27 October 2014)

Mkhonza v Absa Bank Limited and Another (7819/2009) [2014] ZAGPPHC 841 (27 October 2014)

The court held that the applicant was ill-advised in seeking rescission of the summary judgment, as rescission is not a competent procedure in these circumstances. The correct remedy would have been to appeal the summary judgment. The application for rescission was therefore dismissed. The respondents, having succeeded, were entitled to their costs, and the court granted costs on an attorney and client scale as pleaded by the respondent's counsel and provided for in the agreement.

Citation
[2014] ZAGPPHC 841
Parties
Applicant: Wiseman Sinothi Mkhonza; Respondent: Absa Bank Limited; Respondent: The Sheriff: Centurion East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 October 2014
Case Number
7819/2009
Procedural Posture
Rescission Application / Application for Rescission of Summary Judgment
Outcome
Application for rescission of judgment dismissed with costs on attorney and client scale.
Judges
A.M.L. Phatudi
Legal Topics
Rescission of Judgment, Summary Judgment, Costs Award
Civil Procedure Rescission of Judgment Summary Judgment Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Wiseman Sinothi Mkhonza

Applicant

Absa Bank Limited

Respondent

The Sheriff: Centurion East

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Summary Judgment

Legal Issues

  1. 1 Whether an application for rescission of summary judgment is competent after summary judgment has been granted.
  2. 2 Whether the applicant followed the correct procedure in seeking relief.
  3. 3 Whether costs should be awarded on a punitive scale.

Ratio Decidendi

The court held that the applicant was ill-advised in seeking rescission of the summary judgment, as rescission is not a competent procedure in these circumstances. The correct remedy would have been to appeal the summary judgment. The application for rescission was therefore dismissed. The respondents, having succeeded, were entitled to their costs, and the court granted costs on an attorney and client scale as pleaded by the respondent's counsel and provided for in the agreement.

Court Disposition

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

Orders

  • The applicant’s application for rescission of judgment is dismissed with costs on attorney and client scale.