Schoonwyk and Another v Standard Bank of South Africa (1292/2014) [2014] ZAFSHC 184 (9 October 2014)

Schoonwyk and Another v Standard Bank of South Africa (1292/2014) [2014] ZAFSHC 184 (9 October 2014)

The court found that the applicants' explanation for their default was unsatisfactory and improbable, given their education and the involvement of legal representatives and a debt counsellor. The applicants failed to act upon receiving the summons and termination notices, which were properly served and tracked. The...

Source-derived case information.

Citation
[2014] ZAFSHC 184
Parties
Applicant: Phillip Abrahm Schoonwyk; Applicant: Philanda Martina Schoonwyk; Respondent: The Standard Bank of South Africa
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 October 2014
Case Number
1292/2014
Procedural Posture
Rescission Application / Opposed Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs; condonation for late filing granted.
Judges
E K Tsatsi
Legal Topics
Rescission of Judgment, Default Judgment, National Credit Act, Mortgage Enforcement, Condonation, Constitutional Right to Housing
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment National Credit Act Mortgage Enforcement Condonation Constitutional Right to Housing

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Parties

Phillip Abrahm Schoonwyk

Applicant

Philanda Martina Schoonwyk

Applicant

The Standard Bank of South Africa

Respondent

Procedural Posture

Rescission Application / Opposed Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants' default was wilful and whether they have a bona fide defence to the respondent's claim.
  2. 2 Whether condonation for the late filing of the rescission application should be granted.
  3. 3 Whether the matter should be referred back to the Magistrate's Court for a finding under section 86(11) of the National Credit Act.

Ratio Decidendi

The court found that the applicants' explanation for their default was unsatisfactory and improbable, given their education and the involvement of legal representatives and a debt counsellor. The applicants failed to act upon receiving the summons and termination notices, which were properly served and tracked. The court held that the applicants did not demonstrate a bona fide defence or reasonable prospects of success on the merits. The respondent complied with statutory requirements for termination and enforcement under the National Credit Act. Section 26 of the Constitution was not implicated, as the right to adequate housing does not entitle a person to remain in a mortgaged property...

Court Disposition

Application for rescission of judgment dismissed with costs; condonation for late filing granted.

Orders

  • Condonation for the late filing of the applicants' papers is granted.
  • Application for rescission of judgment in favour of the respondent and against the applicants for payment in the sum of R159,973.19 and interest at 9% per annum, calculated daily and compounded monthly in arrears from 4 March 2014 until date of final payment, is dismissed with costs.