Mothlabane v ABSA Bank Limited (2318/2017) [2019] ZAECPEHC 60 (25 September 2019)

Mothlabane v ABSA Bank Limited (2318/2017) [2019] ZAECPEHC 60 (25 September 2019)

The applicant provided a reasonable explanation for her default, having relied on the bank's assurance that payment of the arrears would halt legal proceedings. Her version was supported by the account statements and was not contradicted by the respondent. The applicant raised a bona fide defence with prospects of success, namely that the credit agreement was reinstated by payment of the arrears, or alternatively, that an agreement was reached not to proceed with legal action upon such payment. The respondent failed to challenge the applicant's factual averments and did not provide evidence to refute her account. The requirements for rescission under common law were met, and both the...

Citation
[2019] ZAECPEHC 60
Parties
Applicant: Matshediso Daphne Mothlabane; Respondent: ABSA Bank Limited
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
25 September 2019
Case Number
2318/2017
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Order Declaring Property Executable
Outcome
Application for rescission granted; both default judgment and order declaring property executable are rescinded.
Judges
Goosen
Legal Topics
Rescission of Judgment, Default Judgment, National Credit Act, Mortgage Bond Enforcement, Reinstatement of Credit Agreement
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment National Credit Act Mortgage Bond Enforcement Reinstatement of Credit Agreement

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 4 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Matshediso Daphne Mothlabane

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Order Declaring Property Executable

Legal Issues

  1. 1 Whether the applicant provided a reasonable and acceptable explanation for her default in defending the action.
  2. 2 Whether the applicant has raised a bona fide defence with prospects of success to justify rescission of the default judgment and the order declaring the property executable.
  3. 3 Whether payment of arrears by the applicant resulted in reinstatement of the credit agreement under s 129(3) of the National Credit Act.

Ratio Decidendi

The applicant provided a reasonable explanation for her default, having relied on the bank's assurance that payment of the arrears would halt legal proceedings. Her version was supported by the account statements and was not contradicted by the respondent. The applicant raised a bona fide defence with prospects of success, namely that the credit agreement was reinstated by payment of the arrears, or alternatively, that an agreement was reached not to proceed with legal action upon such payment. The respondent failed to challenge the applicant's factual averments and did not provide evidence to refute her account. The requirements for rescission under common law were met, and both the...

Court Disposition

Application for rescission granted; both default judgment and order declaring property executable are rescinded.

Orders

  • The judgments of 20 February 2018 and 19 June 2018 under case number 2318/2017 are hereby rescinded.
  • The respondent is ordered to pay the costs of the application to rescind the judgments.