Moshesh v Standard Bank Of South Africa (EL: 1135/13, ECD: 2635/13) [2014] ZAECELLC 12 (30 September 2014)

Moshesh v Standard Bank Of South Africa (EL: 1135/13, ECD: 2635/13) [2014] ZAECELLC 12 (30 September 2014)

The court found that the applicant failed to establish any of the prerequisites for rescission of judgment. Her explanations for default were found to be false, as the sheriff's return confirmed proper service at her workplace with her knowledge. The alleged settlement agreement was concluded only after judgment had already been granted and could not constitute a defence. The claim of non-receipt of the section 129 notice was refuted by documentary evidence and the respondent's affidavit, showing that the notice was collected and that the applicant attempted to evade service. Consequently, the application for rescission was dismissed.

Citation
[2014] ZAECELLC 12
Parties
Applicant: Senate Moshesh; Respondent: The Standard Bank of South Africa
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
30 September 2014
Case Number
EL: 1135/13, ECD: 2635/13
Procedural Posture
Rescission Application / Hearing of Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs.
Judges
J.E Smith
Legal Topics
Rescission of Judgment, Default Judgment, National Credit Act, Service of Process
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment National Credit Act Service of Process

Case Brief

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Parties

Senate Moshesh

Applicant

The Standard Bank of South Africa

Respondent

Procedural Posture

Rescission Application / Hearing of Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant's default was not willful.
  2. 2 Whether the application for rescission is bona fide and not solely aimed at delaying the respondent's claim.
  3. 3 Whether the applicant has a bona fide defence to the respondent's claim.

Ratio Decidendi

The court found that the applicant failed to establish any of the prerequisites for rescission of judgment. Her explanations for default were found to be false, as the sheriff's return confirmed proper service at her workplace with her knowledge. The alleged settlement agreement was concluded only after judgment had already been granted and could not constitute a defence. The claim of non-receipt of the section 129 notice was refuted by documentary evidence and the respondent's affidavit, showing that the notice was collected and that the applicant attempted to evade service. Consequently, the application for rescission was dismissed.

Court Disposition

Application for rescission of judgment dismissed with costs.

Orders

  • The application is dismissed with costs, including all reserved costs.