Sithole v Firstrand Bank Limited t/a Wesbank (6576/2017) [2019] ZAFSHC 233 (3 December 2019)

Sithole v Firstrand Bank Limited t/a Wesbank (6576/2017) [2019] ZAFSHC 233 (3 December 2019)

The court found that the applicant's application for rescission of default judgment was filed out of time and no condonation was sought, rendering the application fatally defective. The applicant failed to provide a reasonable explanation for the delay, did not disclose a bona fide defence, and presented evidence that was unsatisfactory and mendacious. The respondent complied with all statutory requirements, including proper service of section 129 notice and other documents. The applicant was unable to remedy the default before cancellation of the agreement and failed to settle the arrears despite multiple opportunities. The court applied the test for leave to appeal under section...

Citation
[2019] ZAFSHC 233
Parties
Applicant: Penene Jacob Sithole (substituted by executor of estate); Respondent: Firstrand Bank Limited t/a Wesbank
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 December 2019
Case Number
6576/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
Opperman
Legal Topics
Rescission of Default Judgment, Condonation, National Credit Act, Section 129 Notice, Leave to Appeal, Instalment Sale Agreement
Civil Procedure Banking and Finance Rescission of Default Judgment Condonation National Credit Act Section 129 Notice Leave to Appeal Instalment Sale Agreement

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Parties

Penene Jacob Sithole (substituted by executor of estate)

Applicant

Firstrand Bank Limited t/a Wesbank

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application

Legal Issues

  1. 1 Whether the applicant's application for rescission of default judgment was properly dismissed for being out of time without condonation.
  2. 2 Whether the applicant had prospects of success on appeal regarding the rescission of the default judgment.
  3. 3 Whether section 129 of the National Credit Act was properly complied with by the respondent.

Ratio Decidendi

The court found that the applicant's application for rescission of default judgment was filed out of time and no condonation was sought, rendering the application fatally defective. The applicant failed to provide a reasonable explanation for the delay, did not disclose a bona fide defence, and presented evidence that was unsatisfactory and mendacious. The respondent complied with all statutory requirements, including proper service of section 129 notice and other documents. The applicant was unable to remedy the default before cancellation of the agreement and failed to settle the arrears despite multiple opportunities. The court applied the test for leave to appeal under section...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.