Polizzi and Another v Standard Bank of South Africa Limited and Others (12598/2009) [2017] ZAWCHC 73 (30 May 2017)

Polizzi and Another v Standard Bank of South Africa Limited and Others (12598/2009) [2017] ZAWCHC 73 (30 May 2017)

The court found that the applicants failed to provide a reasonable and acceptable explanation for their default, as their delay in bringing the rescission application was inordinate and motivated by strategic considerations rather than genuine belief in the merits. The applicants did not act promptly upon learning of the judgment, nor did they take steps to prevent the sale in execution or transfer of the property. Their defences lacked merit: the bank remained the registered mortgagee, the amount claimed was not overstated, and no evidence supported the claim of securitisation. The constitutional right to housing did not preclude execution, and any such rights could be asserted in...

Citation
[2017] ZAWCHC 73
Parties
Applicant: Devanayagie Polizzi; Applicant: Salvatore Polizzi; Respondent: Standard Bank of South Africa Limited; Respondent: Registrar of Deeds, Cape Town; Respondent: Tri-Action Investment Trust (IT4241/2005); Respondent: Sheriff of the High Court
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
30 May 2017
Case Number
12598/2009
Procedural Posture
Civil Application / Application for Rescission of Judgment and Setting Aside of Sale in Execution
Outcome
Application dismissed with costs.
Judges
Binns-Ward
Legal Topics
Rescission of Judgment, Sale in Execution, Mortgage Enforcement, Condonation, Constitutional Right to Housing
Civil Procedure Land and Property Rescission of Judgment Sale in Execution Mortgage Enforcement Condonation Constitutional Right to Housing

Case Brief

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Parties

Devanayagie Polizzi

Applicant

Salvatore Polizzi

Applicant

Standard Bank of South Africa Limited

Respondent

Registrar of Deeds, Cape Town

Respondent

Tri-Action Investment Trust (IT4241/2005)

Respondent

Sheriff of the High Court

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the applicants have shown sufficient cause for rescission of the judgment entered against them.
  2. 2 Whether the sale in execution of the applicants' property should be set aside for non-compliance with rule 46(7)(b).
  3. 3 Whether the applicants' constitutional rights under section 26 have been infringed by the sale and eviction proceedings.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable and acceptable explanation for their default, as their delay in bringing the rescission application was inordinate and motivated by strategic considerations rather than genuine belief in the merits. The applicants did not act promptly upon learning of the judgment, nor did they take steps to prevent the sale in execution or transfer of the property. Their defences lacked merit: the bank remained the registered mortgagee, the amount claimed was not overstated, and no evidence supported the claim of securitisation. The constitutional right to housing did not preclude execution, and any such rights could be asserted in...

Court Disposition

Application dismissed with costs.

Orders

  • The application for rescission of judgment is refused.
  • The application to set aside the sale in execution is refused.