Tozamile v RMB Private Bank (A Division for Firstrand Bank Limited) (3964/2010) [2016] ZAGPPHC 109 (24 March 2016)

Tozamile v RMB Private Bank (A Division for Firstrand Bank Limited) (3964/2010) [2016] ZAGPPHC 109 (24 March 2016)

The court found that both parties operated under the mistaken belief that the rule 46(1)(a)(ii) application had been postponed on 8 May 2014. The respondent's conduct, including allowing the applicant to file an answering affidavit and submitting a replying affidavit, confirmed this shared misunderstanding. The order of 8 May 2014 was granted in circumstances tainted by procedural irregularity and miscommunication. The respondent's reliance on the validity of the order was deemed opportunistic and unconscionable. The court held that the order was erroneously sought and granted, and that rescission was warranted. The respondent was ordered to pay costs on an attorney and client scale due...

Citation
[2016] ZAGPPHC 109
Parties
Applicant: Botha Tozamile; Respondent: RMB Private Bank (A Division for Firstrand Bank Limited)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 March 2016
Case Number
3964/2010
Procedural Posture
Rescission Application / Opposed Application for Rescission of Order Under Rule 46(1)(a)(ii)
Outcome
Application for rescission granted; respondent ordered to pay costs on attorney and client scale.
Judges
Jansen
Legal Topics
Rescission of Judgment, Rule 46 Application, Mortgage Bond Enforcement, Primary Residence Protection
Civil Procedure Land and Property Rescission of Judgment Rule 46 Application Mortgage Bond Enforcement Primary Residence Protection

Case Brief

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Parties

Botha Tozamile

Applicant

RMB Private Bank (A Division for Firstrand Bank Limited)

Respondent

Procedural Posture

Rescission Application / Opposed Application for Rescission of Order Under Rule 46(1)(a)(ii)

Legal Issues

  1. 1 Whether the order granted on 8 May 2014 under rule 46(1)(a)(ii) should be rescinded.
  2. 2 Whether the respondent was aware of the applicant's application for postponement on 8 May 2014.
  3. 3 Whether the applicant should be held liable for the respondent's attorneys' oversight regarding the postponement and subsequent affidavits.

Ratio Decidendi

The court found that both parties operated under the mistaken belief that the rule 46(1)(a)(ii) application had been postponed on 8 May 2014. The respondent's conduct, including allowing the applicant to file an answering affidavit and submitting a replying affidavit, confirmed this shared misunderstanding. The order of 8 May 2014 was granted in circumstances tainted by procedural irregularity and miscommunication. The respondent's reliance on the validity of the order was deemed opportunistic and unconscionable. The court held that the order was erroneously sought and granted, and that rescission was warranted. The respondent was ordered to pay costs on an attorney and client scale due...

Court Disposition

Application for rescission granted; respondent ordered to pay costs on attorney and client scale.

Orders

  • The order granted under case number 3964/2010 on 8 May 2014 is rescinded.
  • The respondent is to pay the costs of the application on an attorney and client scale.