Ndzamela v ABSA Bank Limited (E3131/2017) [2019] ZAECGHC 40 (22 March 2019)

Ndzamela v ABSA Bank Limited (E3131/2017) [2019] ZAECGHC 40 (22 March 2019)

The court found that the applicant failed to establish that she was not in wilful default, as it was highly improbable that service at three different addresses did not come to her attention. Furthermore, the applicant did not provide evidence of a bona fide defence to the respondent's claim, as she did not deny entering into the mortgage loan agreement or the payment made towards the transfer of the property. Her denial regarding the attorneys involved was implausible, and there was documentary evidence supporting the respondent's position. Consequently, the applicant did not make out a case for rescission of the default judgment.

Citation
[2019] ZAECGHC 40
Parties
Applicant: Alice Nontuthuzelo Ndzamela; Respondent: ABSA Bank Limited
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
22 March 2019
Case Number
E3131/2017
Procedural Posture
Review Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment dismissed with costs.
Judges
NG Beshe
Legal Topics
Rescission of Judgment, Default Judgment, Mortgage Loan Agreement, Wilful Default
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment Mortgage Loan Agreement Wilful Default

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 2 Authorities cited 2 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Alice Nontuthuzelo Ndzamela

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Review Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant was in wilful default when the default judgment was granted.
  2. 2 Whether the applicant has shown a bona fide defence to the respondent's claim.
  3. 3 Whether the applicant is entitled to rescission of the default judgment.

Ratio Decidendi

The court found that the applicant failed to establish that she was not in wilful default, as it was highly improbable that service at three different addresses did not come to her attention. Furthermore, the applicant did not provide evidence of a bona fide defence to the respondent's claim, as she did not deny entering into the mortgage loan agreement or the payment made towards the transfer of the property. Her denial regarding the attorneys involved was implausible, and there was documentary evidence supporting the respondent's position. Consequently, the applicant did not make out a case for rescission of the default judgment.

Court Disposition

Application for rescission of default judgment dismissed with costs.

Orders

  • The application for the setting aside or rescission of the order granted against the applicant by default on 24 October 2017 is dismissed with costs.