Nkomo and Another v Firstrand Bank Ltd and Others (61704/2011) [2012] ZAGPPHC 108 (13 June 2012)

Nkomo and Another v Firstrand Bank Ltd and Others (61704/2011) [2012] ZAGPPHC 108 (13 June 2012)

The court found that the section 129 notice was properly served and its contents substantially complied with statutory requirements. The applicants admitted receiving the summons but failed to defend due to financial difficulties. The property was not the applicants' primary residence, and thus the Gundwana principle regarding execution against a home did not apply. The Registrar did not erroneously grant the default judgment, and the applicants had knowledge of the judgment and acquiesced by making payments. No bona fide defence was shown, and the application for rescission was not brought timeously. Consequently, the application for rescission and ancillary relief was dismissed with costs.

Citation
[2012] ZAGPPHC 108
Parties
Applicant: Nkomo, Khiwa Morgan; Applicant: Nkomo, Ntsele Junia; Respondent: Firstrand Bank Limited; Respondent: F.S van der Westhuizen; Respondent: M.P van der Westhuizen; Respondent: The Sheriff, Krugersdorp; Respondent: Registrar of Deeds, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 June 2012
Case Number
61704/2011
Procedural Posture
Rescission Application / Judgment
Outcome
Application for rescission of judgment and ancillary relief dismissed with costs.
Judges
MNGQIBISA-THUSI
Legal Topics
Rescission of Judgment, Sale in Execution, Section 129 Notice, Primary Residence Executability, Default Judgment, National Credit Act
Civil Procedure Land and Property Rescission of Judgment Sale in Execution Section 129 Notice Primary Residence Executability Default Judgment National Credit Act

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Parties

Nkomo, Khiwa Morgan

Applicant

Nkomo, Ntsele Junia

Applicant

Firstrand Bank Limited

Respondent

F.S van der Westhuizen

Respondent

M.P van der Westhuizen

Respondent

The Sheriff, Krugersdorp

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Rescission Application / Judgment

Legal Issues

  1. 1 Whether the default judgment granted against the applicants on 12 March 2010 should be rescinded.
  2. 2 Whether the warrant of execution and subsequent sale in execution of the applicants' immovable property should be set aside.
  3. 3 Whether the section 129 notice complied with statutory requirements and was properly served.

Ratio Decidendi

The court found that the section 129 notice was properly served and its contents substantially complied with statutory requirements. The applicants admitted receiving the summons but failed to defend due to financial difficulties. The property was not the applicants' primary residence, and thus the Gundwana principle regarding execution against a home did not apply. The Registrar did not erroneously grant the default judgment, and the applicants had knowledge of the judgment and acquiesced by making payments. No bona fide defence was shown, and the application for rescission was not brought timeously. Consequently, the application for rescission and ancillary relief was dismissed with costs.

Court Disposition

Application for rescission of judgment and ancillary relief dismissed with costs.

Orders

  • The application for the rescission of the judgment granted on 12 March 2010 and ancillary relief is dismissed with costs.