Nkutha and Another v Standard Bank of South Africa Limited and Others (23213/2011) [2017] ZAGPJHC 282 (11 August 2017)

Nkutha and Another v Standard Bank of South Africa Limited and Others (23213/2011) [2017] ZAGPJHC 282 (11 August 2017)

The court found that service of the summons and s.129 notice was effected at the agreed domicilium citandi et executandi, which is lawful and in accordance with both the rules of court and the National Credit Act. The applicants failed to notify the bank of any change in domicilium, and their failure to collect the registered post does not render service defective. The sale in execution and subsequent transfer to the bona fide purchaser (second respondent) are unimpeachable, as there was no defect in the process or the underlying judgment. The applicants did not provide a reasonable explanation for the inordinate delay in bringing the rescission application, nor did they establish a bona...

Citation
[2017] ZAGPJHC 282
Parties
Applicant: Nkutha, Bonginkosi Selby; Applicant: Nkutha, Nogufa Alina; Respondent: Standard Bank of South Africa Limited; Respondent: Dikobe, Maosi Abel; Respondent: Sheriff of the High Court (Soweto West); Respondent: Registrar of Deeds (Johannesburg)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 August 2017
Case Number
23213/2011
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Setting Aside of Sale in Execution
Outcome
Application dismissed with costs.
Judges
Van der Linde
Legal Topics
Rescission of Judgment, Sale in Execution, Bona Fide Purchaser, Service of Process, National Credit Act, Delay in Application
Civil Procedure Land and Property Rescission of Judgment Sale in Execution Bona Fide Purchaser Service of Process National Credit Act Delay in Application

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 8 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Nkutha, Bonginkosi Selby

Applicant

Nkutha, Nogufa Alina

Applicant

Standard Bank of South Africa Limited

Respondent

Dikobe, Maosi Abel

Respondent

Sheriff of the High Court (Soweto West)

Respondent

Registrar of Deeds (Johannesburg)

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Setting Aside of Sale in Execution

Legal Issues

  1. 1 Whether the default judgment granted against the applicants is susceptible to rescission.
  2. 2 Whether the sale in execution and subsequent transfer of the property to a bona fide purchaser can be set aside.
  3. 3 Whether service of the summons and s.129 notice was effected in accordance with the rules and the National Credit Act.

Ratio Decidendi

The court found that service of the summons and s.129 notice was effected at the agreed domicilium citandi et executandi, which is lawful and in accordance with both the rules of court and the National Credit Act. The applicants failed to notify the bank of any change in domicilium, and their failure to collect the registered post does not render service defective. The sale in execution and subsequent transfer to the bona fide purchaser (second respondent) are unimpeachable, as there was no defect in the process or the underlying judgment. The applicants did not provide a reasonable explanation for the inordinate delay in bringing the rescission application, nor did they establish a bona...

Court Disposition

Application dismissed with costs.

Orders

  • The application for rescission of judgment and setting aside of sale in execution and transfer is dismissed.
  • The applicants are ordered to pay the costs of the application.