Rossouw v Absa Bank Limited; Absa Bank Limited v Rossouw (49258/2013; 59908/2013) [2016] ZAGPPHC 92 (23 February 2016)

Rossouw v Absa Bank Limited; Absa Bank Limited v Rossouw (49258/2013; 59908/2013) [2016] ZAGPPHC 92 (23 February 2016)

The court found that the defence of lis alibi pendens could not succeed because the previous claim under case number 19260/2010 had been rescinded and was no longer pending; there was no cause of action left. The claim under case number 49258/2013 arose from a new default and was unrelated to the previous claim. The court also determined that the applicant's assertion of ongoing negotiations was not supported by the evidence, as communications had ceased and no settlement was forthcoming. The court granted condonation for the late filing of the answering affidavit and consented to the rescission of the judgment under case number 59908/2013. Costs were allocated according to the success or...

Citation
[2016] ZAGPPHC 92
Parties
Applicant: Willem Albertus Rossouw; Respondent: Absa Bank Limited; Applicant: Absa Bank Limited; Respondent: Willem Albertus Rossouw
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 February 2016
Case Number
49258/2013; 59908/2013
Procedural Posture
Rescission Application / Judgment on Applications for Rescission of Default Judgments, Variation, and Condonation
Outcome
Rescission application under case number 49258/2013 dismissed with costs; rescission application under case number 59908/2013 granted with costs against plaintiff; condonation and variation applications granted.
Judges
Msimeki
Legal Topics
Rescission of Judgment, Lis Pendens, Res Judicata, Condonation, Variation of Order
Civil Procedure Banking and Finance Rescission of Judgment Lis Pendens Res Judicata Condonation Variation of Order

Case Brief

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Parties

Willem Albertus Rossouw

Applicant

Absa Bank Limited

Respondent

Absa Bank Limited

Applicant

Willem Albertus Rossouw

Respondent

Procedural Posture

Rescission Application / Judgment on Applications for Rescission of Default Judgments, Variation, and Condonation

Legal Issues

  1. 1 Whether lis alibi pendens can be successfully raised by the defendant in the application for rescission under case number 49258/2013.
  2. 2 Whether the defendant should be held liable for costs in the two applications, including costs related to the variation and condonation applications.
  3. 3 Whether the parties were engaged in negotiations post June 2012 up to the date of the applications.

Ratio Decidendi

The court found that the defence of lis alibi pendens could not succeed because the previous claim under case number 19260/2010 had been rescinded and was no longer pending; there was no cause of action left. The claim under case number 49258/2013 arose from a new default and was unrelated to the previous claim. The court also determined that the applicant's assertion of ongoing negotiations was not supported by the evidence, as communications had ceased and no settlement was forthcoming. The court granted condonation for the late filing of the answering affidavit and consented to the rescission of the judgment under case number 59908/2013. Costs were allocated according to the success or...

Court Disposition

Rescission application under case number 49258/2013 dismissed with costs; rescission application under case number 59908/2013 granted with costs against plaintiff; condonation and variation applications granted.

Orders

  • The application for rescission of the judgment by default granted on 29 October 2013 under case number 49258/2013 is dismissed.
  • Defendant (applicant) is ordered to pay the costs of the application under case number 49258/2013.