Serekwane and Another v Absa Bank Limited and Another (2013/35928) [2018] ZAGPJHC 561 (10 October 2018)

Serekwane and Another v Absa Bank Limited and Another (2013/35928) [2018] ZAGPJHC 561 (10 October 2018)

The court found that the failure to attach the written loan agreements to the summons did not render the summons excipiable, as the claim was for a liquidated amount and the summons complied with the prescribed form. The explanation for the absence of the original agreements was provided in the summons, and the supporting mortgage bonds were attached. The applicants failed to bring the rescission application within a reasonable time, with no explanation for the delay between the withdrawal of the first application and the initiation of the current one. Furthermore, it was incompetent to seek to set aside a warrant of execution already carried out without joining the current owner of the...

Citation
[2018] ZAGPJHC 561
Parties
Applicant: Daniel Serekwane; Applicant: Jessie Thandi Serekwane; Respondent: Absa Bank Limited; Respondent: Sheriff, Roodepoort South
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 October 2018
Case Number
2013/35928
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs on an attorney and client scale.
Judges
Redman
Legal Topics
Rescission of Judgment, Default Judgment, Warrant of Execution, Mortgage Bond, Delay in Application
Civil Procedure Land and Property Rescission of Judgment Default Judgment Warrant of Execution Mortgage Bond Delay in Application

Case Brief

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Parties

Daniel Serekwane

Applicant

Jessie Thandi Serekwane

Applicant

Absa Bank Limited

Respondent

Sheriff, Roodepoort South

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the failure to attach written loan agreements to the summons renders the summons excipiable and justifies rescission of the default judgment.
  2. 2 Whether the application for rescission was brought within a reasonable time as required by Rule 42(1).
  3. 3 Whether it is competent to set aside a warrant of execution already carried out without joining the current owner of the property.

Ratio Decidendi

The court found that the failure to attach the written loan agreements to the summons did not render the summons excipiable, as the claim was for a liquidated amount and the summons complied with the prescribed form. The explanation for the absence of the original agreements was provided in the summons, and the supporting mortgage bonds were attached. The applicants failed to bring the rescission application within a reasonable time, with no explanation for the delay between the withdrawal of the first application and the initiation of the current one. Furthermore, it was incompetent to seek to set aside a warrant of execution already carried out without joining the current owner of the...

Court Disposition

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

Orders

  • The application for rescission of judgment is dismissed.
  • The applicants are to pay the costs of the application, jointly and severally, the one paying the other to be absolved, on the scale as between attorney and client.