Mncwanga v Absa Bank Limited (13922/2018) [2022] ZAKZPHC 61 (21 October 2022)

Mncwanga v Absa Bank Limited (13922/2018) [2022] ZAKZPHC 61 (21 October 2022)

The court found that the respondent did not dispute the applicant's factual averments regarding the purchase and possession of the motor vehicle. The respondent's conduct in failing to consent to rescission and condonation prior to the application necessitated a substantive opposed application, resulting in additional costs. By indicating that it would abide the court's decision on the main relief but opposing the costs order, the respondent caused the matter to be heard on an opposed basis. The court held that the respondent should bear the costs incurred from the date of its answering affidavit, including reserved and opposed application costs.

Citation
[2022] ZAKZPHC 61
Parties
Applicant: Raymond Cebon Mncwanga; Respondent: Absa Bank Limited
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
21 October 2022
Case Number
13922/2018
Procedural Posture
Review Application / Application for Rescission of Judgment and Condonation for Late Filing
Outcome
Application for rescission and condonation granted; respondent ordered to pay costs from the date of its answering affidavit.
Judges
Bezuidenhout
Legal Topics
Rescission of Judgment, Condonation for Late Filing, Costs Award, Rule 31 6 a
Civil Procedure Rescission of Judgment Condonation for Late Filing Costs Award Rule 31 6 a

Case Brief

Summary, issues, holding and outcome

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Parties

Raymond Cebon Mncwanga

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Review Application / Application for Rescission of Judgment and Condonation for Late Filing

Legal Issues

  1. 1 Whether the applicant is entitled to rescission of the default judgment granted against him.
  2. 2 Whether condonation for the late filing of the rescission application should be granted.
  3. 3 Who should bear the costs of the application.

Ratio Decidendi

The court found that the respondent did not dispute the applicant's factual averments regarding the purchase and possession of the motor vehicle. The respondent's conduct in failing to consent to rescission and condonation prior to the application necessitated a substantive opposed application, resulting in additional costs. By indicating that it would abide the court's decision on the main relief but opposing the costs order, the respondent caused the matter to be heard on an opposed basis. The court held that the respondent should bear the costs incurred from the date of its answering affidavit, including reserved and opposed application costs.

Court Disposition

Application for rescission and condonation granted; respondent ordered to pay costs from the date of its answering affidavit.

Orders

  • Respondent is ordered to pay the costs of the applicant from the date of the filing of respondent's answering affidavit on 8 July 2022, including reserved costs and costs of the opposed application.