Molaudzi v S (72853/12) [2014] ZAGPPHC 582 (31 July 2014)

Molaudzi v S (72853/12) [2014] ZAGPPHC 582 (31 July 2014)

The court found that the respondent failed to serve the s 129 notice and summons at the applicant's chosen address for correspondence and domicilium, as required by the agreement and the National Credit Act. Service by the Sheriff of the Magistrates' Court was irregular in High Court proceedings. Although irregular service does not automatically vitiate proceedings, the court has discretion to stop proceedings and direct proper service. The court exercised its discretion to rescind the default judgment and ordered the respondent to serve the s 129 notice de novo at the correct address before proceeding further.

Citation
[2014] ZAGPPHC 582
Parties
Applicant: Lazarus Randileni Molaudzi; Respondent: ABSA Bank Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 July 2014
Case Number
72853/12
Procedural Posture
Review Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment rescinded and set aside.
Judges
N.M. Mavundla
Legal Topics
Rescission of Judgment, Service of Process, National Credit Act, Default Judgment, Consumer Protection
Civil Procedure Banking and Finance Rescission of Judgment Service of Process National Credit Act Default Judgment Consumer Protection

Case Brief

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Parties

Lazarus Randileni Molaudzi

Applicant

ABSA Bank Ltd

Respondent

Procedural Posture

Review Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the s 129 letter of demand and summons were properly served on the applicant.
  2. 2 Whether service at an address other than the chosen domicilium is valid.
  3. 3 Whether irregular service by the Sheriff of the Magistrates' Court invalidates proceedings in the High Court.

Ratio Decidendi

The court found that the respondent failed to serve the s 129 notice and summons at the applicant's chosen address for correspondence and domicilium, as required by the agreement and the National Credit Act. Service by the Sheriff of the Magistrates' Court was irregular in High Court proceedings. Although irregular service does not automatically vitiate proceedings, the court has discretion to stop proceedings and direct proper service. The court exercised its discretion to rescind the default judgment and ordered the respondent to serve the s 129 notice de novo at the correct address before proceeding further.

Court Disposition

Application for rescission granted; default judgment rescinded and set aside.

Orders

  • The default judgment granted against the applicant on 5 April 2013 is rescinded and set aside.
  • The respondent/plaintiff must serve de novo the s 129 notice at 58 Dzanani in terms of Rule 4(1) of the High Court Rules, indicating that the action has already commenced and the purpose is to regularize the action.