Tibane Mashianoke Trading v Ras and Another (81006/2015) [2017] ZAGPPHC 819 (24 February 2017)

Tibane Mashianoke Trading v Ras and Another (81006/2015) [2017] ZAGPPHC 819 (24 February 2017)

The court found that the applicant failed to provide a reasonable explanation for its default, as the sheriff's return of service and supporting affidavit established that service was effected at the chosen domicilium. The applicant's denial of the agreements and the existence of the mortgage bond was not credible, as the objective facts showed that the mortgage bond was registered in favour of the respondents as security for the loan. The applicant did not adequately explain how the mortgage bond was registered if no agreement existed. Furthermore, the applicant failed to make out a bona fide defence with prospects of success, as its denials were unsupported and did not address the...

Citation
[2017] ZAGPPHC 819
Parties
Applicant: Tibane Mashianoke Trading; Respondent: Anton Ras; Respondent: Judith Ras
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 February 2017
Case Number
81006/2015
Procedural Posture
Rescission Application / Application to Rescind Default Judgment
Outcome
Application to rescind the default judgment is dismissed with costs.
Judges
Molahlehi
Legal Topics
Rescission of Default Judgment, Service of Process, Mortgage Bond Registration, Bona Fide Defence
Civil Procedure Land and Property Rescission of Default Judgment Service of Process Mortgage Bond Registration Bona Fide Defence

Case Brief

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Parties

Tibane Mashianoke Trading

Applicant

Anton Ras

Respondent

Judith Ras

Respondent

Procedural Posture

Rescission Application / Application to Rescind Default Judgment

Legal Issues

  1. 1 Whether the applicant provided a reasonable explanation for its default in failing to oppose the claim.
  2. 2 Whether the applicant demonstrated a bona fide defence with prospects of success to justify rescission of the default judgment.
  3. 3 Whether service of summons was properly effected on the applicant in accordance with the Rules.

Ratio Decidendi

The court found that the applicant failed to provide a reasonable explanation for its default, as the sheriff's return of service and supporting affidavit established that service was effected at the chosen domicilium. The applicant's denial of the agreements and the existence of the mortgage bond was not credible, as the objective facts showed that the mortgage bond was registered in favour of the respondents as security for the loan. The applicant did not adequately explain how the mortgage bond was registered if no agreement existed. Furthermore, the applicant failed to make out a bona fide defence with prospects of success, as its denials were unsupported and did not address the...

Court Disposition

Application to rescind the default judgment is dismissed with costs.

Orders

  • The applicant's application to rescind the default judgment made on 18 February 2016 is dismissed with costs.