Rothauge v Nedbank Limited and Another (11860/2006) [2008] ZAGPHC 150 (3 June 2008)

Rothauge v Nedbank Limited and Another (11860/2006) [2008] ZAGPHC 150 (3 June 2008)

The court found that the applicant failed to comply with the time frames stipulated in Rule 31(2)(b), as she launched the application approximately 16 months after becoming aware of the default judgment. There was no application for condonation of the late filing. The applicant did not establish that the judgment was erroneously sought or granted under Rule 42, nor did she make out a case for rescission under the common law, as no grounds for restitution in integrum were shown. The applicant was aware of the judgment and chose not to act until after the sale in execution. The court concluded that the application lacked merit and should be dismissed.

Citation
[2008] ZAGPHC 150
Parties
Applicant: Ingrid Rothauge; Respondent: Nedbank Limited; Respondent: Jacobus M van Staden
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
3 June 2008
Case Number
11860/2006
Procedural Posture
Review Application / Application for Rescission of Default Judgment and Interim Interdict
Outcome
Application dismissed with costs.
Judges
Seriti
Legal Topics
Rescission of Default Judgment, Sale in Execution, Mortgage Bond Enforcement, Condonation, Rule 31 2 B, Rule 42 Uniform Rules
Civil Procedure Land and Property Rescission of Default Judgment Sale in Execution Mortgage Bond Enforcement Condonation Rule 31 2 B Rule 42 Uniform Rules

Case Brief

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Parties

Ingrid Rothauge

Applicant

Nedbank Limited

Respondent

Jacobus M van Staden

Respondent

Procedural Posture

Review Application / Application for Rescission of Default Judgment and Interim Interdict

Legal Issues

  1. 1 Whether the applicant has shown good cause for the rescission of the default judgment granted against her.
  2. 2 Whether the application for rescission was brought within the time frames stipulated by Rule 31(2)(b) of the Uniform Rules of Court.
  3. 3 Whether the applicant is entitled to relief under Rule 42 or the common law.

Ratio Decidendi

The court found that the applicant failed to comply with the time frames stipulated in Rule 31(2)(b), as she launched the application approximately 16 months after becoming aware of the default judgment. There was no application for condonation of the late filing. The applicant did not establish that the judgment was erroneously sought or granted under Rule 42, nor did she make out a case for rescission under the common law, as no grounds for restitution in integrum were shown. The applicant was aware of the judgment and chose not to act until after the sale in execution. The court concluded that the application lacked merit and should be dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the costs of the first respondent on a party and party scale.