Musasike and Another v Standard Bank of SA Limited (34170/2014) [2018] ZAGPJHC 422 (31 May 2018)

Musasike and Another v Standard Bank of SA Limited (34170/2014) [2018] ZAGPJHC 422 (31 May 2018)

The applicants failed to meet the requirements for rescission of the default judgment under common law. At the time of judgment, they were in breach of the loan agreement and admitted the respondent had a valid cause of action. Their mistaken belief regarding the need to oppose was not a reasonable or acceptable explanation for their default. No bona fide defence with prospects of success was established. The absence of opposition from the respondent does not entitle the applicants to rescission as it is not granted automatically. The cited unreported case was distinguishable on its facts and did not assist the applicants.

Citation
[2018] ZAGPJHC 422
Parties
Applicant: Lewis Maxwell Musasike; Applicant: Tsitsi Musasike; Respondent: Standard Bank of SA Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
31 May 2018
Case Number
34170/2014
Procedural Posture
Review Application / Application for Rescission of Default Judgment
Outcome
Application for rescission refused.
Judges
D S S Moshidi
Legal Topics
Rescission of Default Judgment, Common Law Requirements, Loan Agreement Breach
Civil Procedure Banking and Finance Rescission of Default Judgment Common Law Requirements Loan Agreement Breach

Case Brief

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Parties

Lewis Maxwell Musasike

Applicant

Tsitsi Musasike

Applicant

Standard Bank of SA Limited

Respondent

Procedural Posture

Review Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown sufficient cause for rescission of the default judgment under common law.
  2. 2 Whether the applicants provided a reasonable and acceptable explanation for their default.
  3. 3 Whether the applicants have established a bona fide defence with prospects of success.

Ratio Decidendi

The applicants failed to meet the requirements for rescission of the default judgment under common law. At the time of judgment, they were in breach of the loan agreement and admitted the respondent had a valid cause of action. Their mistaken belief regarding the need to oppose was not a reasonable or acceptable explanation for their default. No bona fide defence with prospects of success was established. The absence of opposition from the respondent does not entitle the applicants to rescission as it is not granted automatically. The cited unreported case was distinguishable on its facts and did not assist the applicants.

Court Disposition

Application for rescission refused.

Orders

  • The application for rescission is refused.
  • There shall be no order as to costs.