Selma Daude Da Cunha (Pty) Ltd v First Rand Bank Ltd t/a Wesbank (1562/2022) [2023] ZAMPMHC 35 (17 October 2023)

Selma Daude Da Cunha (Pty) Ltd v First Rand Bank Ltd t/a Wesbank (1562/2022) [2023] ZAMPMHC 35 (17 October 2023)

The court found that the applicant failed to prove that Ms Da Cunha was authorized to institute the rescission application on behalf of the company, conflating the authority to depose to an affidavit with the authority to act for the company. The applicant did not make the necessary averment in the founding affidavit and did not provide a company resolution, despite the challenge to authority. On the merits, the applicant did not provide a reasonable explanation for its default, failing to explain how it became aware of the summons and not adequately rebutting the sheriff's return of service. The applicant's defence regarding the validity of the agreement and the applicability of the...

Citation
[2023] ZAMPMHC 35
Parties
Applicant: Selma Daude Da Cunha (Pty) Ltd; Respondent: First Rand Bank Ltd t/a Wesbank
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
17 October 2023
Case Number
1562/2022
Procedural Posture
Rescission Application / Opposed Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs on attorney and client scale.
Judges
MBG Langa
Legal Topics
Rescission of Judgment, Default Judgment, Authority to Act, Electronic Signatures, National Credit Act
Civil Procedure Banking and Finance Rescission of Judgment Default Judgment Authority to Act Electronic Signatures National Credit Act

Case Brief

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Parties

Selma Daude Da Cunha (Pty) Ltd

Applicant

First Rand Bank Ltd t/a Wesbank

Respondent

Procedural Posture

Rescission Application / Opposed Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant proved authority to institute the rescission application on behalf of the company.
  2. 2 Whether the applicant provided a reasonable explanation for its default in defending the main action.
  3. 3 Whether the applicant demonstrated a bona fide defence with prospects of success to justify rescission of the default judgment.

Ratio Decidendi

The court found that the applicant failed to prove that Ms Da Cunha was authorized to institute the rescission application on behalf of the company, conflating the authority to depose to an affidavit with the authority to act for the company. The applicant did not make the necessary averment in the founding affidavit and did not provide a company resolution, despite the challenge to authority. On the merits, the applicant did not provide a reasonable explanation for its default, failing to explain how it became aware of the summons and not adequately rebutting the sheriff's return of service. The applicant's defence regarding the validity of the agreement and the applicability of the...

Court Disposition

Application for rescission of judgment dismissed with costs on attorney and client scale.

Orders

  • The application for rescission of the judgment is dismissed with costs on attorney and client scale.