Theu and Another v SB Guarantee Company (RF) Pty Limited and Another [2023] ZAGPPHC 220; 87167/2019 (17 March 2023)

Theu and Another v SB Guarantee Company (RF) Pty Limited and Another [2023] ZAGPPHC 220; 87167/2019 (17 March 2023)

The court found that the applicants failed to establish that the summary judgment was erroneously sought or granted in terms of Rule 42(1)(a). The evidence showed that the judgment was granted by a Judge, not the Registrar, and the applicants' allegations to the contrary were unsupported and speculative. The court further held that the issue of service of the Section 129(1) Notice had already been considered and decided by the Judge who granted the summary judgment, and there was no procedural irregularity unknown to the court at the time. As the applicants could not satisfy the requirements for rescission under Rule 42(1)(a), the application was dismissed.

Citation
[2023] ZAGPPHC 220
Parties
Applicant: Charles Theu; Applicant: Consolation Theu; Respondent: SB Guarantee Company (RF) Pty Limited; Respondent: Sheriff Centurion West
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 March 2023
Case Number
87167/2019
Procedural Posture
Rescission Application / Application for Rescission of Summary Judgment
Outcome
Application for rescission dismissed with costs.
Judges
E.M Kubushi
Legal Topics
Rescission of Judgment, National Credit Act Compliance, Service of Process, Summary Judgment, Default Judgment
Civil Procedure Banking and Finance Rescission of Judgment National Credit Act Compliance Service of Process Summary Judgment Default Judgment

Case Brief

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Parties

Charles Theu

Applicant

Consolation Theu

Applicant

SB Guarantee Company (RF) Pty Limited

Respondent

Sheriff Centurion West

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Summary Judgment

Legal Issues

  1. 1 Whether the summary judgment was erroneously sought or granted in terms of Rule 42(1)(a).
  2. 2 Whether the First Respondent complied with the notice requirements under section 129(1) and section 130 of the National Credit Act.
  3. 3 Whether the summary judgment was granted by the Registrar instead of a Judge, contrary to section 130 of the National Credit Act.

Ratio Decidendi

The court found that the applicants failed to establish that the summary judgment was erroneously sought or granted in terms of Rule 42(1)(a). The evidence showed that the judgment was granted by a Judge, not the Registrar, and the applicants' allegations to the contrary were unsupported and speculative. The court further held that the issue of service of the Section 129(1) Notice had already been considered and decided by the Judge who granted the summary judgment, and there was no procedural irregularity unknown to the court at the time. As the applicants could not satisfy the requirements for rescission under Rule 42(1)(a), the application was dismissed.

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed with costs.
  • The Registrar of this Division of the High Court is ordered to make the Legal Practice Council aware of this judgment.