Nedbank Ltd v Soneman and Another (290/2010) [2013] ZAECPEHC 8; 2013 (3) SA 526 (ECP) (14 February 2013)

Nedbank Ltd v Soneman and Another (290/2010) [2013] ZAECPEHC 8; 2013 (3) SA 526 (ECP) (14 February 2013)

The court held that the High Court does not have the power to rescind a properly obtained and satisfied judgment solely by consent of the parties for the purpose of improving the respondents' creditworthiness. The absence of a provision similar to Magistrates' Court Rule 49(5) in the Uniform Rules of Court means that rescission by consent is not permitted in the High Court. The common law does not allow for the falsification of the past to assist a judgment debtor, as this would undermine the rule of law and the statutory requirements of the National Credit Act. The court associated itself with the reasoning in Saphula v Nedcor Bank Ltd and other cases, which held that affected...

Citation
[2013] ZAECPEHC 8
Parties
Applicant: Nedbank Limited; Respondent: Mark Denzel Soneman; Respondent: Lelane Francisca Soneman
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
14 February 2013
Case Number
290/2010
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment by Consent
Outcome
Application for rescission of judgment dismissed.
Judges
E Revelas
Legal Topics
Rescission of Judgment, National Credit Act, Creditworthiness, Default Judgment, Mortgage Bond, Rule 42 Uniform Rules
Civil Procedure Banking and Finance Rescission of Judgment National Credit Act Creditworthiness Default Judgment Mortgage Bond Rule 42 Uniform Rules

Case Brief

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Parties

Nedbank Limited

Applicant

Mark Denzel Soneman

Respondent

Lelane Francisca Soneman

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment by Consent

Legal Issues

  1. 1 Whether the High Court may rescind a properly obtained and satisfied judgment by consent solely to restore the respondents' creditworthiness.
  2. 2 Whether the absence of a provision similar to Magistrates' Court Rule 49(5) in the Uniform Rules of Court permits rescission by consent in the High Court.
  3. 3 Whether the common law or Uniform Rules of Court allow for rescission of judgment in these circumstances.

Ratio Decidendi

The court held that the High Court does not have the power to rescind a properly obtained and satisfied judgment solely by consent of the parties for the purpose of improving the respondents' creditworthiness. The absence of a provision similar to Magistrates' Court Rule 49(5) in the Uniform Rules of Court means that rescission by consent is not permitted in the High Court. The common law does not allow for the falsification of the past to assist a judgment debtor, as this would undermine the rule of law and the statutory requirements of the National Credit Act. The court associated itself with the reasoning in Saphula v Nedcor Bank Ltd and other cases, which held that affected...

Court Disposition

Application for rescission of judgment dismissed.

Orders

  • The application for rescission of judgment is dismissed.