Shabalala v Standard Bank Ltd and Others (1651/2012) [2017] ZAGPPHC 807 (23 February 2017)

Shabalala v Standard Bank Ltd and Others (1651/2012) [2017] ZAGPPHC 807 (23 February 2017)

The court found that the applicant was not in wilful default, as he was not properly served with the rescission application and only became aware of the proceedings after the order had been granted. The explanation for the default was reasonable and credible. The applicant demonstrated a bona fide defence, having lawfully purchased the property at a sale in execution and obtained transfer and eviction orders. The procedural objection regarding case numbers was dismissed as the respondents themselves had conflated the case numbers in their own application. The grounds of opposition were found to be without merit, and a punitive costs order was justified.

Citation
[2017] ZAGPPHC 807
Parties
Applicant: Andrew Lesiba Shabalala; Respondent: Standard Bank Ltd; Respondent: Sheriff of the High Court, Wonderboom; Respondent: Registrar of Deeds, Pretoria; Respondent: City of Tshwane Metropolitan Municipality; Respondent: Qhubekisa Projects (Pty) Ltd; Respondent: Joelblandhlabangane; Respondent: Muriel Matshidiso Hlabangane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 February 2017
Case Number
1651/2012
Procedural Posture
Rescission Application / Application for Rescission of a Prior Court Order
Outcome
The application for rescission is granted; the order of 6 February 2014 is set aside.
Judges
Kollapen
Legal Topics
Rescission of Judgment, Sale in Execution, Eviction Order, Service of Process, Bona Fide Defence
Civil Procedure Land and Property Rescission of Judgment Sale in Execution Eviction Order Service of Process Bona Fide Defence

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Parties

Andrew Lesiba Shabalala

Applicant

Standard Bank Ltd

Respondent

Sheriff of the High Court, Wonderboom

Respondent

Registrar of Deeds, Pretoria

Respondent

City of Tshwane Metropolitan Municipality

Respondent

Qhubekisa Projects (Pty) Ltd

Respondent

Joelblandhlabangane

Respondent

Muriel Matshidiso Hlabangane

Respondent

Procedural Posture

Rescission Application / Application for Rescission of a Prior Court Order

Legal Issues

  1. 1 Whether the applicant was in wilful default in failing to oppose the rescission application heard on 6 February 2014.
  2. 2 Whether the order granted by Rabie J on 6 February 2014 should be rescinded.
  3. 3 Whether the applicant has a bona fide defence to the claims of the seventh and eighth respondents.

Ratio Decidendi

The court found that the applicant was not in wilful default, as he was not properly served with the rescission application and only became aware of the proceedings after the order had been granted. The explanation for the default was reasonable and credible. The applicant demonstrated a bona fide defence, having lawfully purchased the property at a sale in execution and obtained transfer and eviction orders. The procedural objection regarding case numbers was dismissed as the respondents themselves had conflated the case numbers in their own application. The grounds of opposition were found to be without merit, and a punitive costs order was justified.

Court Disposition

The application for rescission is granted; the order of 6 February 2014 is set aside.

Orders

  • The order granted on 6 February 2014 by Rabie J under case number 1651/2012, incorporating relief under case number 17638/2013, is rescinded and set aside in its entirety.
  • The seventh and eighth respondents are to pay the costs of this application on an attorney and client scale, including the costs of the applicant and the first respondent.