Nophale v ABSA Bank Ltd and Others (489/2012) [2012] ZAFSHC 208 (21 June 2012)

Nophale v ABSA Bank Ltd and Others (489/2012) [2012] ZAFSHC 208 (21 June 2012)

The court found that the applicant failed to provide a sufficient and credible explanation for her delay in bringing the rescission application, which spanned over two years after she became aware of the sale and transfer. The applicant did not establish a bona fide defence to the claim sounding in money, as she...

Source-derived case information.

Citation
[2012] ZAFSHC 208
Parties
Applicant: Nonhlupheko Sina Nophale; Respondent: ABSA Bank Limited; Respondent: Kheletso Petrus Khutlane; Respondent: Masebolai Lydia Khutlane; Respondent: Sheriff, Bloemfontein East; Respondent: Registrar of Deeds
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 June 2012
Case Number
489/2012
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment and Setting Aside of Transfer of Immovable Property
Outcome
Application dismissed with costs.
Judges
Snellenburg, AJ
Legal Topics
Rescission of Default Judgment, Judicial Oversight of Execution, Section 26 Constitution, Sale in Execution, Transfer of Immovable Property
Civil Procedure Land and Property Rescission of Default Judgment Judicial Oversight of Execution Section 26 Constitution Sale in Execution Transfer of Immovable Property

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Parties

Nonhlupheko Sina Nophale

Applicant

ABSA Bank Limited

Respondent

Kheletso Petrus Khutlane

Respondent

Masebolai Lydia Khutlane

Respondent

Sheriff, Bloemfontein East

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment and Setting Aside of Transfer of Immovable Property

Legal Issues

  1. 1 Whether the applicant has satisfied the requirements for rescission of the default judgment granted in her absence.
  2. 2 Whether the execution order and subsequent sale and transfer of the applicant's home should be set aside due to constitutional invalidity.
  3. 3 Whether the applicant provided a reasonable explanation for her delay in bringing the rescission application.

Ratio Decidendi

The court found that the applicant failed to provide a sufficient and credible explanation for her delay in bringing the rescission application, which spanned over two years after she became aware of the sale and transfer. The applicant did not establish a bona fide defence to the claim sounding in money, as she remained in persistent default and her payment did not purge the arrears. Although the execution order was constitutionally invalid due to lack of judicial oversight, the applicant did not satisfy the additional requirements set out in Gundwana, namely that a court would have refused execution with full knowledge of the facts. The interests of the innocent purchasers, who had paid...

Court Disposition

Application dismissed with costs.

Orders

  • The application for rescission of the default judgment and setting aside of the transfer is dismissed with costs.