Nelwamondo v Nedbank Ltd (2296/2010) [2013] ZAFSHC 161 (5 September 2013)

Nelwamondo v Nedbank Ltd (2296/2010) [2013] ZAFSHC 161 (5 September 2013)

The court found that although the applicant delayed excessively in bringing the rescission application, the explanation for the delay was acceptable given the circumstances, including the cessation of business activities and the manner of service of summons. The applicant demonstrated reasonable prospects of success in the rescission application, as the issues regarding the alleged forgery of the suretyship signature and delivery of goods are triable and should be determined by the trial court. The applicant's conduct did not conclusively undermine his bona fides, and the explanation for default was satisfactory. Consequently, condonation for the late application was granted, and the...

Citation
[2013] ZAFSHC 161
Parties
Applicant: Khorommbi Cuthwell Nelwamondo; Respondent: Nedbank Limited
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 September 2013
Case Number
2296/2010
Procedural Posture
Rescission Application / Application for Condonation and Rescission of Default Judgment
Outcome
Condonation for the late application for rescission is granted. The default judgment is rescinded and the applicant is granted leave to defend. The applicant is ordered to pay the respondent's costs.
Judges
L J Lekale
Legal Topics
Rescission of Judgment, Condonation of Late Application, Default Judgment, Bona Fide Defence
Civil Procedure Rescission of Judgment Condonation of Late Application Default Judgment Bona Fide Defence

Case Brief

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Parties

Khorommbi Cuthwell Nelwamondo

Applicant

Nedbank Limited

Respondent

Procedural Posture

Rescission Application / Application for Condonation and Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant has shown good cause for condonation of the late application for rescission of default judgment.
  2. 2 Whether good cause exists for rescission of the default judgment entered against the applicant.

Ratio Decidendi

The court found that although the applicant delayed excessively in bringing the rescission application, the explanation for the delay was acceptable given the circumstances, including the cessation of business activities and the manner of service of summons. The applicant demonstrated reasonable prospects of success in the rescission application, as the issues regarding the alleged forgery of the suretyship signature and delivery of goods are triable and should be determined by the trial court. The applicant's conduct did not conclusively undermine his bona fides, and the explanation for default was satisfactory. Consequently, condonation for the late application was granted, and the...

Court Disposition

Condonation for the late application for rescission is granted. The default judgment is rescinded and the applicant is granted leave to defend. The applicant is ordered to pay the respondent's costs.

Orders

  • Condonation of the late application for rescission of default judgment is granted.
  • The default judgment entered against the applicant on 5 October 2010 is rescinded.