Nkosi v ABSA Bank Limited and Others (73147/2013, 61861/2011) [2014] ZAGPPHC 1021 (9 December 2014)

Nkosi v ABSA Bank Limited and Others (73147/2013, 61861/2011) [2014] ZAGPPHC 1021 (9 December 2014)

The court found that the applicants failed to show good cause for rescission of the default judgments. Their explanations for delay were inadequate, and their founding affidavits consisted almost entirely of legal argument with no material facts supporting their defences. The applicants admitted their indebtedness and arrears, and the service of summons and Section 129 notices was properly effected. The cited constitutional and statutory provisions did not apply on the facts, and the applicants did not demonstrate any irregularity or non-compliance by the respondents. The applications were repetitive, generic, and appeared to be copied from previous unsuccessful applications, indicating a...

Citation
[2014] ZAGPPHC 1021
Parties
Applicant: Paulos Christiaan Nkosi; Applicant: Ivailo Ivanov; Respondent: ABSA Bank Limited; Respondent: Registrar of Deeds, Pretoria; Respondent: Sheriff of the High Court, Evander, Mpumalanga; Respondent: Andrew James; Respondent: Sheriff of the High Court Tshwane South East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 December 2014
Case Number
73147/2013, 61861/2011
Procedural Posture
Rescission Application / Opposed Motion Court; Application for Rescission of Default Judgment
Outcome
Applications for rescission by both applicants are dismissed with costs. Determination of the scale and order of costs is postponed sine die, pending further application.
Judges
S Strauss
Legal Topics
Rescission of Default Judgment, Condonation, Special Execution of Primary Residence, National Credit Act Compliance, Section 26 Constitution, Attorney and Client Costs
Civil Procedure Land and Property Rescission of Default Judgment Condonation Special Execution of Primary Residence National Credit Act Compliance Section 26 Constitution Attorney and Client Costs

Case Brief

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Parties

Paulos Christiaan Nkosi

Applicant

Ivailo Ivanov

Applicant

ABSA Bank Limited

Respondent

Registrar of Deeds, Pretoria

Respondent

Sheriff of the High Court, Evander, Mpumalanga

Respondent

Andrew James

Respondent

Sheriff of the High Court Tshwane South East

Respondent

Procedural Posture

Rescission Application / Opposed Motion Court; Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of default judgment.
  2. 2 Whether the applicants have provided a reasonable explanation for their default and delay.
  3. 3 Whether the applicants have established bona fide defences with prospects of success.

Ratio Decidendi

The court found that the applicants failed to show good cause for rescission of the default judgments. Their explanations for delay were inadequate, and their founding affidavits consisted almost entirely of legal argument with no material facts supporting their defences. The applicants admitted their indebtedness and arrears, and the service of summons and Section 129 notices was properly effected. The cited constitutional and statutory provisions did not apply on the facts, and the applicants did not demonstrate any irregularity or non-compliance by the respondents. The applications were repetitive, generic, and appeared to be copied from previous unsuccessful applications, indicating a...

Court Disposition

Applications for rescission by both applicants are dismissed with costs. Determination of the scale and order of costs is postponed sine die, pending further application.

Orders

  • The applications for rescission of both applicants are dismissed with costs.
  • The scale and order of costs are postponed sine die, to be enrolled by way of motion as set out in prayers 3-7.