Shakes v Nedbank Limited and Another (5118/2017) [2023] ZALMPPHC 4 (19 January 2023)

Shakes v Nedbank Limited and Another (5118/2017) [2023] ZALMPPHC 4 (19 January 2023)

The court found that the dismissal order of 8 June 2020 was granted in the absence of the applicant, who was not properly notified due to service at incorrect addresses and lack of communication from his former attorneys. The merits of the rescission application were not considered in the initial dismissal, and the applicant was deprived of an opportunity to be heard. The court held that the order was a default judgment and, given the erroneous service and lack of disclosure of material facts, rescission was warranted under Rule 42(1). The respondent's point in limine was dismissed, and the order of 8 June 2020 was rescinded.

Citation
[2023] ZALMPPHC 4
Parties
Applicant: Dlamini Mthunzi Shakes; Respondent: Nedbank Limited; Respondent: The Sheriff Polokwane
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
19 January 2023
Case Number
5118/2017
Procedural Posture
Rescission Application / Second Rescission Application Following Dismissal of First Rescission Application
Outcome
The application for rescission is granted; the order of 8 June 2020 is rescinded and set aside.
Judges
Kganyago
Legal Topics
Rescission of Judgment, Service of Process, Default Judgment, National Credit Act Compliance
Civil Procedure Rescission of Judgment Service of Process Default Judgment National Credit Act Compliance

Case Brief

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Parties

Dlamini Mthunzi Shakes

Applicant

Nedbank Limited

Respondent

The Sheriff Polokwane

Respondent

Procedural Posture

Rescission Application / Second Rescission Application Following Dismissal of First Rescission Application

Legal Issues

  1. 1 Whether the dismissal order of 8 June 2020 was a final order precluding a rescission application.
  2. 2 Whether the order of 8 June 2020 was erroneously granted in the absence of the applicant.
  3. 3 Whether the applicant provided sufficient cause for rescission under common law and the Uniform Rules of Court.

Ratio Decidendi

The court found that the dismissal order of 8 June 2020 was granted in the absence of the applicant, who was not properly notified due to service at incorrect addresses and lack of communication from his former attorneys. The merits of the rescission application were not considered in the initial dismissal, and the applicant was deprived of an opportunity to be heard. The court held that the order was a default judgment and, given the erroneous service and lack of disclosure of material facts, rescission was warranted under Rule 42(1). The respondent's point in limine was dismissed, and the order of 8 June 2020 was rescinded.

Court Disposition

The application for rescission is granted; the order of 8 June 2020 is rescinded and set aside.

Orders

  • The order of 8 June 2020 is rescinded and set aside.
  • The first respondent is ordered to pay the applicant's costs on a party and party scale.