Mncube and Another v Absa Bank Limited (12942/2013) [2016] ZAGPJHC 364 (25 November 2016)

Mncube and Another v Absa Bank Limited (12942/2013) [2016] ZAGPJHC 364 (25 November 2016)

The court held that the applicants, having filed an affidavit opposing summary judgment, were not in default merely because they failed to appear at the hearing. The law distinguishes between default in trial actions and summary judgment proceedings where an affidavit is before the court. In summary judgment proceedings, the absence of a party does not amount to default if an affidavit has been filed. Therefore, the application for rescission is not competent, and the applicants' remedy lies in seeking leave to appeal, not rescission.

Citation
[2016] ZAGPJHC 364
Parties
Applicant: Mncube Vusumuzi Stanley; Applicant: Mncube Nonqhele Nonkululeko; Respondent: Absa Bank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 November 2016
Case Number
12942/2013
Procedural Posture
Rescission Application / Application for Rescission of Summary Judgment
Outcome
Application for rescission dismissed with costs.
Judges
Weiner
Legal Topics
Rescission of Judgment, Summary Judgment, Default Judgment, Leave to Appeal
Civil Procedure Rescission of Judgment Summary Judgment Default Judgment Leave to Appeal

Case Brief

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Parties

Mncube Vusumuzi Stanley

Applicant

Mncube Nonqhele Nonkululeko

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Summary Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to rescission of summary judgment where an opposing affidavit was filed but no appearance was made at the hearing.
  2. 2 Whether failure to appear at the summary judgment hearing constitutes default for purposes of rescission.

Ratio Decidendi

The court held that the applicants, having filed an affidavit opposing summary judgment, were not in default merely because they failed to appear at the hearing. The law distinguishes between default in trial actions and summary judgment proceedings where an affidavit is before the court. In summary judgment proceedings, the absence of a party does not amount to default if an affidavit has been filed. Therefore, the application for rescission is not competent, and the applicants' remedy lies in seeking leave to appeal, not rescission.

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission is dismissed with costs.