Mostert and Another v Standard Bank of South Africa Ltd and Another (1368/2011) [2013] ZAFSHC 83 (30 May 2013)

Mostert and Another v Standard Bank of South Africa Ltd and Another (1368/2011) [2013] ZAFSHC 83 (30 May 2013)

The court found that the applicants established a bona fide defence with prospects of success. The debt re-arrangement order of 14 February 2011, which revived the debt review, had not been set aside and its prima facie effect supported the applicants' defence. The applicants complied with the global payment required by the debt re-arrangement order at the time summons was issued. The determination of whether the applicants were in default under the debt re-arrangement order is a matter for the trial court. For the purposes of rescission, the applicants' defence is bona fide and carries prospects of success. Costs were ordered to be costs in the cause, as the default was attributed to...

Citation
[2013] ZAFSHC 83
Parties
Applicant: Izak Mostert; Applicant: Klara Erika Mostert; Respondent: The Standard Bank of South Africa Limited; Respondent: Alexander Fowly Hewetson
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 May 2013
Case Number
1368/2011
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Related Orders
Outcome
Application for rescission granted; applicants permitted to defend the action.
Judges
L.J. Lekale
Legal Topics
Rescission of Judgment, Debt Review, National Credit Act, Notice Requirements, Mortgage Bond Enforcement
Civil Procedure Banking and Finance Rescission of Judgment Debt Review National Credit Act Notice Requirements Mortgage Bond Enforcement

Case Brief

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Parties

Izak Mostert

Applicant

Klara Erika Mostert

Applicant

The Standard Bank of South Africa Limited

Respondent

Alexander Fowly Hewetson

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Related Orders

Legal Issues

  1. 1 Whether the applicants have a bona fide defence with prospects of success against the first respondent's claim.
  2. 2 Whether the debt review process was properly terminated and, if so, whether it was revived by the court order of 14 February 2011.
  3. 3 Whether the applicants were in default under the debt re-arrangement order at the time summons was issued.

Ratio Decidendi

The court found that the applicants established a bona fide defence with prospects of success. The debt re-arrangement order of 14 February 2011, which revived the debt review, had not been set aside and its prima facie effect supported the applicants' defence. The applicants complied with the global payment required by the debt re-arrangement order at the time summons was issued. The determination of whether the applicants were in default under the debt re-arrangement order is a matter for the trial court. For the purposes of rescission, the applicants' defence is bona fide and carries prospects of success. Costs were ordered to be costs in the cause, as the default was attributed to...

Court Disposition

Application for rescission granted; applicants permitted to defend the action.

Orders

  • Default judgment granted on 23 May 2011 under case number 1368/2011 is rescinded.
  • Order declaring the property specially executable granted on 15 September 2011 under case number 1368/2011 is rescinded.