Standard Bank of South Africa Ltd v Squirrel Investments 12 CC and Others (1488/10) [2010] ZAWCHC 348 (10 December 2010)
The court found that, in the absence of any answering affidavit or evidence from the respondents, the applicants' version was uncontested. The arguments raised by the respondents in court, without supporting affidavits, could not be considered as evidence. The court therefore accepted the applicants' allegations as...
Source-derived case information.
- Citation
- [2010] ZAWCHC 348
- Parties
- Plaintiff: Standard Bank of South Africa Limited; Defendant: Squirrel Investments 12 CC; Defendant: Johann Anton Bartman; Defendant: Abraham Bosmann Slabber
- Court
- Western Cape High Court, Cape Town
- Jurisdiction
- South Africa
- Case Number
- 1488/10
- Procedural Posture
- Civil Procedure / Application for Rescission of Default Judgment
- Outcome
- Application for condonation and rescission of judgment granted; defendants granted leave to defend; execution steps stayed; costs reserved for trial.
- Judges
- Henney
- Legal Topics
- Rescission of Judgment, Condonation, Default Judgment, Leave to Defend, Stay of Execution
Source-derived case record
Summary, issues, holding and outcome
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Parties
Standard Bank of South Africa Limited
Plaintiff
Squirrel Investments 12 CC
Defendant
Johann Anton Bartman
Defendant
Abraham Bosmann Slabber
Defendant
Procedural Posture
Civil Procedure / Application for Rescission of Default Judgment
Legal Issues
- 1 Whether condonation should be granted for the late filing of the application for rescission of judgment.
- 2 Whether the default judgment granted by the Registrar should be rescinded.
- 3 Whether the Defendants should be granted leave to defend the action.
Ratio Decidendi
The court found that, in the absence of any answering affidavit or evidence from the respondents, the applicants' version was uncontested. The arguments raised by the respondents in court, without supporting affidavits, could not be considered as evidence. The court therefore accepted the applicants' allegations as stated in their founding affidavit. Condonation for the late filing of the rescission application was granted. The default judgment previously granted by the Registrar was rescinded, and the defendants were granted leave to defend the action. The writ of attachment and all other execution steps were stayed pending trial. The costs of the application for rescission were reserved...
Court Disposition
Application for condonation and rescission of judgment granted; defendants granted leave to defend; execution steps stayed; costs reserved for trial.
Orders
- Condonation is granted for the extension of the time limit in which the application should have been brought.
- The default judgment granted by the Registrar on 12 May 2010 is rescinded.
Full Case Text
Judgment text and source record
24 paragraphs
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE No: 1488/10
In the matter between;
THE STANDARD BANK OF SOUTH AFRICA LIMITED …...............................................Plaintiff
(Registration number: 62/000738/06)
And
SQUIRREL INVESTMENTS 12 CC …......................................................................First Defendant
(Registration Number 2005/111844/23)
JOHANN ANTON BARTMAN …........................................................................Second Defendant
(IDENTITY NO. )
ABRAHAM BOSMANN SLABBER …....................................................................Third Defendant
JUDGMENT DELIVERED ON 10 DECEMBER 2010
HENNEY, AJ:
[1] This application was heard by this court on 2 December 2010. Although this matter was opposed, by the Respondent, no opposing papers were filed with the result that the application had to be adjudicated completely on the version of the applicants. There was no Answering Affidavit from the Respondent to serve as evidence upon which the Court could adjudicate this application.
The mere arguments raised by the Respondents about the issues raised by the Applicants on the face of it, might seem farfetched, but it cannot be regarded as evidence upon which the Court would be able to adjudicate the application. The Respondents had to do this by filing an Answering Affidavit. There is therefore no answer to the allegations of the Applicants as stated in their Founding Affidavit.
In the result therefore, the following order is made:
The application for condonation is granted for the extension of the time limit in which the application should have been brought.
The Default Judgment granted by the Registrar on 12 May 2010 is rescinded.
The Defendants is granted leave to defend the action.
The writ of attachment of immovable property granted by the Registrar is stayed and all other execution steps instituted by the Plaintiff is suspended.
5) The costs of the application for the Rescission of Judgment shall stand over for the determination of trial.
HENNEY, AJ