Mostert v Nedbank Limited (5709/2011) [2014] ZAKZPHC 20 (31 March 2014)

Mostert v Nedbank Limited (5709/2011) [2014] ZAKZPHC 20 (31 March 2014)

The court found that Mr Mostert failed to bring the rescission application within a reasonable time after becoming aware of the default judgment, as required under Rule 42(1)(a). The evidence showed that he was aware of the judgment by November 2011 at the latest, yet he delayed taking action without adequate explanation. Mr Mostert did not discharge the onus to prove that the judgment was erroneously granted due to lack of service, as the sheriff's return of service constituted prima facie evidence and was supported by other documentation and admissions. The application for referral to oral evidence was not made in limine and no exceptional circumstances were shown. The probabilities...

Citation
[2014] ZAKZPHC 20
Parties
Applicant: Schalk Willem Jacobus Mostert; Respondent: Nedbank Limited
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
31 March 2014
Case Number
5709/2011
Procedural Posture
Rescission Application / Hearing and Judgment
Outcome
Application dismissed with costs.
Judges
Gorven
Legal Topics
Rescission of Default Judgment, Service of Process, Condonation, Close Corporations Liability
Civil Procedure Rescission of Default Judgment Service of Process Condonation Close Corporations Liability

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Parties

Schalk Willem Jacobus Mostert

Applicant

Nedbank Limited

Respondent

Procedural Posture

Rescission Application / Hearing and Judgment

Legal Issues

  1. 1 Whether the application for rescission of default judgment was brought within a reasonable time under Rule 42(1)(a).
  2. 2 Whether Mr Mostert discharged the onus to prove that the judgment was erroneously granted due to lack of service of summons.
  3. 3 Whether condonation should be granted for the late launch of the rescission application.

Ratio Decidendi

The court found that Mr Mostert failed to bring the rescission application within a reasonable time after becoming aware of the default judgment, as required under Rule 42(1)(a). The evidence showed that he was aware of the judgment by November 2011 at the latest, yet he delayed taking action without adequate explanation. Mr Mostert did not discharge the onus to prove that the judgment was erroneously granted due to lack of service, as the sheriff's return of service constituted prima facie evidence and was supported by other documentation and admissions. The application for referral to oral evidence was not made in limine and no exceptional circumstances were shown. The probabilities...

Court Disposition

Application dismissed with costs.

Orders

  • The application for rescission of default judgment is dismissed.
  • The applicant is ordered to pay the costs of the application.