Rossitter & Others v Nedbank Ltd (96/2014) [2015] ZASCA 196 (1 December 2015)

Rossitter & Others v Nedbank Ltd (96/2014) [2015] ZASCA 196 (1 December 2015)

The Supreme Court of Appeal held that the default judgment was erroneously granted because the respondent failed to comply with the procedural requirements of Uniform rule 31(5)(a) and paragraph 2.3 of the KwaZulu-Natal Practice Manual. The notice of intention to apply for default judgment did not specify a date and time, as required when the application is made more than six months after service of summons. This procedural defect meant the appellants were not properly notified, and the judgment was granted in their absence. The court further found that the appellants' conduct did not amount to acquiescence or peremption of the appeal, as their actions demonstrated a clear intention to...

Citation
[2015] ZASCA 196
Parties
Appellant: Terence John Rossitter; Appellant: Terence John Rossitter NO; Appellant: Gail Wingrove Rossiter NO; Respondent: Nedbank Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2015
Case Number
96/2014
Procedural Posture
Civil Appeal / Appeal From Kwa Zulu Natal Division of the High Court, Pietermaritzburg
Outcome
Appeal upheld; order of the court a quo set aside; rescission of default judgment granted.
Judges
Navsa, Shongwe, Mbha, Mathopo, Baartman
Legal Topics
Rescission of Judgment, Uniform Rule 42, Default Judgment, Practice Manual Compliance
Civil Procedure Rescission of Judgment Uniform Rule 42 Default Judgment Practice Manual Compliance

Case Brief

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Parties

Terence John Rossitter

Appellant

Terence John Rossitter NO

Appellant

Gail Wingrove Rossiter NO

Appellant

Nedbank Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Kwa Zulu Natal Division of the High Court, Pietermaritzburg

Legal Issues

  1. 1 Whether the default judgment granted by the registrar was erroneously sought and granted in the absence of the appellants.
  2. 2 Whether procedural requirements under Uniform rule 31(5)(a) and the KwaZulu-Natal Practice Manual were complied with.
  3. 3 Whether the appellants' conduct amounted to acquiescence in the default judgment, rendering the appeal perempted.

Ratio Decidendi

The Supreme Court of Appeal held that the default judgment was erroneously granted because the respondent failed to comply with the procedural requirements of Uniform rule 31(5)(a) and paragraph 2.3 of the KwaZulu-Natal Practice Manual. The notice of intention to apply for default judgment did not specify a date and time, as required when the application is made more than six months after service of summons. This procedural defect meant the appellants were not properly notified, and the judgment was granted in their absence. The court further found that the appellants' conduct did not amount to acquiescence or peremption of the appeal, as their actions demonstrated a clear intention to...

Court Disposition

Appeal upheld; order of the court a quo set aside; rescission of default judgment granted.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and substituted with: (a) The application for rescission of the default judgment granted by the Registrar of the High Court on 30 May 2014 is granted and the default judgment is set aside. (b) The respondent is ordered to pay the costs of the application.