Motsepe v Nedbank Limited (19618/15) [2016] ZAGPPHC 932 (4 October 2016)

Motsepe v Nedbank Limited (19618/15) [2016] ZAGPPHC 932 (4 October 2016)

The court held that the applicant failed to comply with the requirements for rescission of the default judgment and the declaration of executability. The applicant did not provide a reasonable explanation for the delay of seven to eight years in bringing the application, nor did she set out a bona fide defence to the Bank's claim, having admitted breach of the credit agreement and mortgage bond. The alleged procedural irregularities were not raised in the founding affidavit and could not be considered. The Gundwana decision, which declared it unconstitutional for the registrar to declare immovable property executable when granting default judgment, does not apply retrospectively to...

Citation
[2016] ZAGPPHC 932
Parties
Applicant: Nobuntu Kanyisa Motsepe; Respondent: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 October 2016
Case Number
19618/15
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs.
Judges
P.M. Mabuse
Legal Topics
Rescission of Default Judgment, Mortgage Bond Enforcement, Rule 31 5 Procedure, National Credit Act Compliance, Declaration of Executability, Constitutional Right to Housing
Civil Procedure Banking and Finance Rescission of Default Judgment Mortgage Bond Enforcement Rule 31 5 Procedure National Credit Act Compliance Declaration of Executability Constitutional Right to Housing

Case Brief

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Parties

Nobuntu Kanyisa Motsepe

Applicant

Nedbank Limited

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the registrar should have referred the Bank's application for default judgment to open court for judicial consideration.
  2. 2 Whether the Bank was entitled to use a simple summons to enforce rights arising from a mortgage bond or credit agreement.
  3. 3 Whether it was proper for the registrar to declare the judgment debtor's property executable.

Ratio Decidendi

The court held that the applicant failed to comply with the requirements for rescission of the default judgment and the declaration of executability. The applicant did not provide a reasonable explanation for the delay of seven to eight years in bringing the application, nor did she set out a bona fide defence to the Bank's claim, having admitted breach of the credit agreement and mortgage bond. The alleged procedural irregularities were not raised in the founding affidavit and could not be considered. The Gundwana decision, which declared it unconstitutional for the registrar to declare immovable property executable when granting default judgment, does not apply retrospectively to...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission, as well as for the relief sought in the alternative, is hereby dismissed with costs.