Moshoeshoe and Another v Firstrand Bank Ltd and Others (40290/12) [2018] ZAGPJHC 8; [2018] 2 All SA 236 (GJ) (25 January 2018)

Moshoeshoe and Another v Firstrand Bank Ltd and Others (40290/12) [2018] ZAGPJHC 8; [2018] 2 All SA 236 (GJ) (25 January 2018)

The court found that the applicants were never properly served with the summons due to an incorrect address, resulting in their ignorance of the proceedings and default judgment. The subsequent sale in execution and eviction occurred without proper judicial oversight and in circumstances that were unfair and unjust. The applicants provided a reasonable explanation for their default, acted bona fide, and demonstrated a bona fide case with prospects of success in overturning the Registrar's order. The arguments of res judicata and lis pendens raised by the bank were dismissed, as the order of Dodson AJ was granted without consideration of the merits and is therefore susceptible to...

Citation
[2018] ZAGPJHC 8
Parties
Applicant: Moshoeshoe GT; Applicant: Moshoeshoe EM; Respondent: Firstrand Bank Ltd; Respondent: Seponono AM; Respondent: Mathapelo JS; Respondent: Ngcobo J; Respondent: The Sheriff of the High Court, Benoni
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 January 2018
Case Number
40290/12
Procedural Posture
Rescission Application / Application for Rescission of a Default Judgment and Condonation for Late Filing
Outcome
Application for rescission granted; judgment and order of Dodson AJ rescinded and set aside.
Judges
Vally
Legal Topics
Rescission of Judgment, Service of Process, Condonation, Sale in Execution, Mortgage Foreclosure
Civil Procedure Land and Property Rescission of Judgment Service of Process Condonation Sale in Execution Mortgage Foreclosure

Case Brief

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Parties

Moshoeshoe GT

Applicant

Moshoeshoe EM

Applicant

Firstrand Bank Ltd

Respondent

Seponono AM

Respondent

Mathapelo JS

Respondent

Ngcobo J

Respondent

The Sheriff of the High Court, Benoni

Respondent

Procedural Posture

Rescission Application / Application for Rescission of a Default Judgment and Condonation for Late Filing

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment granted by Dodson AJ.
  2. 2 Whether the applicants provided a reasonable explanation for their default and acted bona fide.
  3. 3 Whether the order of Dodson AJ is susceptible to rescission or is res judicata.

Ratio Decidendi

The court found that the applicants were never properly served with the summons due to an incorrect address, resulting in their ignorance of the proceedings and default judgment. The subsequent sale in execution and eviction occurred without proper judicial oversight and in circumstances that were unfair and unjust. The applicants provided a reasonable explanation for their default, acted bona fide, and demonstrated a bona fide case with prospects of success in overturning the Registrar's order. The arguments of res judicata and lis pendens raised by the bank were dismissed, as the order of Dodson AJ was granted without consideration of the merits and is therefore susceptible to...

Court Disposition

Application for rescission granted; judgment and order of Dodson AJ rescinded and set aside.

Orders

  • Non-compliance with rules of the Court is condoned.
  • The judgment and order of Dodson AJ issued on 27 January 2014 is rescinded and set aside.