Motake and Another v Nedbank Limited (2015 / 21199) [2016] ZAGPJHC 176 (24 June 2016)

Motake and Another v Nedbank Limited (2015 / 21199) [2016] ZAGPJHC 176 (24 June 2016)

The court found that the applicants were properly served with all relevant notices and had knowledge of the proceedings at every stage. Their failure to oppose the application or attend court was deliberate and constituted wilful default. The applicants did not provide a reasonable explanation for their default, nor did they disclose a bona fide defence to the respondent's claim. The payment arrangement of 26 May 2014 did not constitute settlement of the arrears, as the applicants failed to adhere to its terms. The requirements for rescission under Rule 42(1)(a), Rule 31, and common law were not satisfied. Accordingly, the judgment was not granted in error and there were no grounds for...

Citation
[2016] ZAGPJHC 176
Parties
Applicant: Agente Ezekiel Motake; Applicant: Liziwe Joyce Motake; Respondent: Nedbank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 June 2016
Case Number
2015 / 21199
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs on the attorney and client scale.
Judges
Mashile
Legal Topics
Rescission of Judgment, Default Judgment, Mortgage Bond Enforcement, National Credit Act, Wilful Default
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment Mortgage Bond Enforcement National Credit Act Wilful Default

Case Brief

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Parties

Agente Ezekiel Motake

Applicant

Liziwe Joyce Motake

Applicant

Nedbank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 31 July 2014 was erroneously sought or granted in the absence of the applicants under Rule 42(1)(a).
  2. 2 Whether the applicants have shown sufficient grounds for rescission of judgment.
  3. 3 Whether the applicants were in wilful default and failed to provide a bona fide defence.

Ratio Decidendi

The court found that the applicants were properly served with all relevant notices and had knowledge of the proceedings at every stage. Their failure to oppose the application or attend court was deliberate and constituted wilful default. The applicants did not provide a reasonable explanation for their default, nor did they disclose a bona fide defence to the respondent's claim. The payment arrangement of 26 May 2014 did not constitute settlement of the arrears, as the applicants failed to adhere to its terms. The requirements for rescission under Rule 42(1)(a), Rule 31, and common law were not satisfied. Accordingly, the judgment was not granted in error and there were no grounds for...

Court Disposition

Application for rescission dismissed with costs on the attorney and client scale.

Orders

  • The application is dismissed with costs as at the scale between attorney and client.