Ramolibe and Another v Nusun Development (Pty) Ltd and Another (4882/2011) [2012] ZAFSHC 102 (24 May 2012)

Ramolibe and Another v Nusun Development (Pty) Ltd and Another (4882/2011) [2012] ZAFSHC 102 (24 May 2012)

The court held that the applicants were not entitled to rescission under Uniform rule 31(2)(b) as the default judgment was granted by the registrar under rule 31(5). The registrar had not erred, and the applicants' remedy lay under the common law, requiring them to show good cause. The applicants failed to advance a bona fide defence with prospects of success, as the evidence showed a written loan agreement and a second mortgage bond were concluded and signed by the applicants. Service of summons at the chosen domicilium was valid and lawful. The applicants' arguments regarding invalid service and lack of agreement were rejected. The application was not bona fide and had no prospect of...

Citation
[2012] ZAFSHC 102
Parties
Applicant: Bogatsu David Ramolibe; Applicant: Maria Ramolibe; Respondent: Nusun Development (Pty) Ltd; Respondent: Hsu-Lieh Ho: Manager-Nusun
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 May 2012
Case Number
4882/2011
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment Granted by Registrar
Outcome
Application for rescission of default judgment dismissed with costs.
Judges
Snellenburg
Legal Topics
Rescission of Default Judgment, Uniform Rules of Court, Service at Domicilium, Bona Fide Defence, Mortgage Bond, Loan Agreement
Civil Procedure Rescission of Default Judgment Uniform Rules of Court Service at Domicilium Bona Fide Defence Mortgage Bond Loan Agreement

Case Brief

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Parties

Bogatsu David Ramolibe

Applicant

Maria Ramolibe

Applicant

Nusun Development (Pty) Ltd

Respondent

Hsu-Lieh Ho: Manager-Nusun

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment Granted by Registrar

Legal Issues

  1. 1 Whether the applicants are entitled to rescission of the default judgment granted by the registrar.
  2. 2 Whether Uniform rule 31(2)(b) or rule 31(5)(d) applies to the rescission application.
  3. 3 Whether service of summons at the chosen domicilium was valid.

Ratio Decidendi

The court held that the applicants were not entitled to rescission under Uniform rule 31(2)(b) as the default judgment was granted by the registrar under rule 31(5). The registrar had not erred, and the applicants' remedy lay under the common law, requiring them to show good cause. The applicants failed to advance a bona fide defence with prospects of success, as the evidence showed a written loan agreement and a second mortgage bond were concluded and signed by the applicants. Service of summons at the chosen domicilium was valid and lawful. The applicants' arguments regarding invalid service and lack of agreement were rejected. The application was not bona fide and had no prospect of...

Court Disposition

Application for rescission of default judgment dismissed with costs.

Orders

  • The application for rescission is dismissed with costs.
  • Reserved costs from the postponed hearing are awarded to the first respondent.