Mpofu and Another v Standard Bank of South Africa Limited and Another (3858/2007) [2017] ZAGPPHC 846 (10 November 2017)

Mpofu and Another v Standard Bank of South Africa Limited and Another (3858/2007) [2017] ZAGPPHC 846 (10 November 2017)

The applicants failed to provide a reasonable explanation for their default, were in wilful default, and did not advance any bona fide defence with prospects of success. The evidence shows they were aware of the proceedings and failed to take necessary steps to oppose summary judgment. The section 129 notices were properly issued and the summons was not premature. The constitutional right to adequate housing does not entitle the applicants to remain in a property beyond their means or prevent execution for a valid judgment debt. The application for rescission is without merit and constitutes an abuse of court process, justifying dismissal with costs on an attorney and client scale.

Citation
[2017] ZAGPPHC 846
Parties
Applicant: Thamsanqa Mbotshwa Mpofu; Applicant: Lungile Mpofu; Respondent: Standard Bank of South Africa Limited; Respondent: The Deputy Sheriff of the High Court Randburg West
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 November 2017
Case Number
3858/2007
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application dismissed with costs on the attorney and client scale.
Judges
Mudau
Legal Topics
Rescission of Judgment, Mortgage Bond Enforcement, Default Judgment, Section 129 Notice, Adequate Housing Rights
Civil Procedure Banking and Finance Rescission of Judgment Mortgage Bond Enforcement Default Judgment Section 129 Notice Adequate Housing Rights

Case Brief

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Parties

Thamsanqa Mbotshwa Mpofu

Applicant

Lungile Mpofu

Applicant

Standard Bank of South Africa Limited

Respondent

The Deputy Sheriff of the High Court Randburg West

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment.
  2. 2 Whether the applicants provided a reasonable explanation for their default and absence of wilfulness.
  3. 3 Whether the applicants have a bona fide defence with prospects of success.

Ratio Decidendi

The applicants failed to provide a reasonable explanation for their default, were in wilful default, and did not advance any bona fide defence with prospects of success. The evidence shows they were aware of the proceedings and failed to take necessary steps to oppose summary judgment. The section 129 notices were properly issued and the summons was not premature. The constitutional right to adequate housing does not entitle the applicants to remain in a property beyond their means or prevent execution for a valid judgment debt. The application for rescission is without merit and constitutes an abuse of court process, justifying dismissal with costs on an attorney and client scale.

Court Disposition

Application dismissed with costs on the attorney and client scale.

Orders

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