Nkhathi and Another v ABSA Bank Limited and Another (434/2015) [2017] ZAGPPHC 1276 (15 December 2017)

Nkhathi and Another v ABSA Bank Limited and Another (434/2015) [2017] ZAGPPHC 1276 (15 December 2017)

The applicants failed to provide a reasonable explanation for their default, did not challenge the validity of service, and did not set out a bona fide defence to the respondent's claim. The court found that service was properly effected at the chosen domicilium and that the applicants' assertion of non-receipt was unsupported by facts. The rescission application was brought well after the default judgment, and the applicants did not satisfy the requirements for rescission under Rule 31(2)(b). The respondent's conduct in holding transfer pending the outcome of the application was reasonable. In the interest of justice, the court ordered engagement regarding the offer to purchase and set a...

Citation
[2017] ZAGPPHC 1276
Parties
Applicant: Thabo Xolani Nkhathi; Applicant: Refiloe Khoali; Respondent: ABSA Bank Limited; Respondent: Sheriff of the Court (Roodepoort North)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 December 2017
Case Number
434/2015
Procedural Posture
Rescission Application / Final Judgment
Outcome
Rescission application dismissed with costs. Directions given regarding engagement on the offer to purchase and minimum sale price.
Judges
Mokoena
Legal Topics
Rescission of Default Judgment, Service of Process, Mortgage Bond Enforcement, Sale in Execution
Civil Procedure Land and Property Rescission of Default Judgment Service of Process Mortgage Bond Enforcement Sale in Execution

Case Brief

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Parties

Thabo Xolani Nkhathi

Applicant

Refiloe Khoali

Applicant

ABSA Bank Limited

Respondent

Sheriff of the Court (Roodepoort North)

Respondent

Procedural Posture

Rescission Application / Final Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment.
  2. 2 Whether service of summons was properly effected at the applicants' domicilium.
  3. 3 Whether the applicants provided a bona fide defence to the respondent's claim.

Ratio Decidendi

The applicants failed to provide a reasonable explanation for their default, did not challenge the validity of service, and did not set out a bona fide defence to the respondent's claim. The court found that service was properly effected at the chosen domicilium and that the applicants' assertion of non-receipt was unsupported by facts. The rescission application was brought well after the default judgment, and the applicants did not satisfy the requirements for rescission under Rule 31(2)(b). The respondent's conduct in holding transfer pending the outcome of the application was reasonable. In the interest of justice, the court ordered engagement regarding the offer to purchase and set a...

Court Disposition

Rescission application dismissed with costs. Directions given regarding engagement on the offer to purchase and minimum sale price.

Orders

  • The rescission application is dismissed with costs.
  • The first respondent is ordered to engage with the applicants regarding the offer to purchase the property for R1,000,000.00 from Michell Morris.