Mthimkhulu v Nedbank Limited (91758/2015) [2018] ZAGPPHC 757 (10 April 2018)

Mthimkhulu v Nedbank Limited (91758/2015) [2018] ZAGPPHC 757 (10 April 2018)

The court found that the applicant failed to establish that the summary judgment was erroneously granted as contemplated by Rule 42(1)(a). The applicant was aware of the hearing date and did not provide sufficient evidence that an opposing affidavit was served or filed. The discrepancy on the court roll did not constitute an error under Rule 42(1)(a), as notice of set down had been given and the matter proceeded in accordance with the court's practice. However, the court determined that not all orders granted in the summary judgment were competent under Rule 32(1), as some did not fall within the claims permitted for summary judgment. Accordingly, the court rescinded and set aside the...

Citation
[2018] ZAGPPHC 757
Parties
Applicant: Mthimkhulu Mbuyiswa Samuel; Respondent: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 April 2018
Case Number
91758/2015
Procedural Posture
Rescission Application / Application for Rescission of Summary Judgment
Outcome
Application for rescission dismissed on the grounds advanced by the applicant; certain incompetent orders in the summary judgment rescinded by the court on its own motion.
Judges
Tsatsawane
Legal Topics
Rescission of Judgment, Summary Judgment, Rule 42, Rule 32, Court Roll Errors
Civil Procedure Rescission of Judgment Summary Judgment Rule 42 Rule 32 Court Roll Errors

Case Brief

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Parties

Mthimkhulu Mbuyiswa Samuel

Applicant

Nedbank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Summary Judgment

Legal Issues

  1. 1 Whether the summary judgment was erroneously granted in the absence of the applicant as contemplated by Rule 42(1)(a).
  2. 2 Whether the orders granted in the summary judgment were competent under Rule 32(1).

Ratio Decidendi

The court found that the applicant failed to establish that the summary judgment was erroneously granted as contemplated by Rule 42(1)(a). The applicant was aware of the hearing date and did not provide sufficient evidence that an opposing affidavit was served or filed. The discrepancy on the court roll did not constitute an error under Rule 42(1)(a), as notice of set down had been given and the matter proceeded in accordance with the court's practice. However, the court determined that not all orders granted in the summary judgment were competent under Rule 32(1), as some did not fall within the claims permitted for summary judgment. Accordingly, the court rescinded and set aside the...

Court Disposition

Application for rescission dismissed on the grounds advanced by the applicant; certain incompetent orders in the summary judgment rescinded by the court on its own motion.

Orders

  • Paragraphs 1, 3 and 4 of the summary judgment granted in this matter are rescinded and set aside.
  • The respondent's claims in respect of the above-mentioned orders shall proceed in the ordinary manner.