Silverstone and Another v Absa Bank Limited (66156/12) [2018] ZAGPPHC 321 (10 May 2018)

Silverstone and Another v Absa Bank Limited (66156/12) [2018] ZAGPPHC 321 (10 May 2018)

The court found that the applicants failed to provide a reasonable and acceptable explanation for their default, as no affidavit from the correspondent attorney was submitted and no formal complaint was lodged. The applicants' reliance on the absence of the original loan agreement and the excipiability of secondary evidence was rejected, as the substantive law allows for secondary evidence where the original contract is destroyed. The court held that the applicants' defences lacked merit and were raised solely to frustrate the respondent's claim. Accordingly, the application for rescission of judgment was dismissed with costs.

Citation
[2018] ZAGPPHC 321
Parties
Applicant: Colin Waine Silverstone; Applicant: Nurit Silverstone; Respondent: Absa Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 May 2018
Case Number
66156/12
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs.
Judges
Petersen
Legal Topics
Rescission of Judgment, Rule 42, Default Judgment, Secondary Evidence, Mortgage Bond, Best Evidence Rule
Civil Procedure Rescission of Judgment Rule 42 Default Judgment Secondary Evidence Mortgage Bond Best Evidence Rule

Case Brief

Summary, issues, holding and outcome

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Parties

Colin Waine Silverstone

Applicant

Nurit Silverstone

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown sufficient or good cause for rescission of the default judgment.
  2. 2 Whether the absence of the original loan agreement and reliance on secondary evidence constitutes a bona fide defence.
  3. 3 Whether the explanation for the applicants' default is reasonable and acceptable.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable and acceptable explanation for their default, as no affidavit from the correspondent attorney was submitted and no formal complaint was lodged. The applicants' reliance on the absence of the original loan agreement and the excipiability of secondary evidence was rejected, as the substantive law allows for secondary evidence where the original contract is destroyed. The court held that the applicants' defences lacked merit and were raised solely to frustrate the respondent's claim. Accordingly, the application for rescission of judgment was dismissed with costs.

Court Disposition

Application for rescission of judgment dismissed with costs.

Orders

  • The application for rescission of judgment is dismissed with costs.