Twala and Another v Standard Bank of South Africa Limited (40281/2012) [2021] ZAGPPHC 537 (18 August 2021)

Twala and Another v Standard Bank of South Africa Limited (40281/2012) [2021] ZAGPPHC 537 (18 August 2021)

The court found that the application for rescission was incompetent in law because the judgment sought to be rescinded was granted after an opposed summary judgment hearing, for which the proper remedy is appeal, not rescission. There was no evidence of non-service or a bona fide defence to the order declaring the property specially executable. The Second Applicant was not properly before the court, as she had no knowledge of the proceedings and did not sign a confirmatory affidavit. The conduct of the First Applicant's attorney, including failure to comply with practice directives and inadequate preparation, warranted a de bonis propriis costs order. The application was dismissed, and...

Citation
[2021] ZAGPPHC 537
Parties
Applicant: Solomon Twala; Applicant: Nonkanyiso Octavia Mbese; Respondent: The Standard Bank of South Africa Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 August 2021
Case Number
40281/2012
Procedural Posture
Urgent Application / Opposed Motion for Rescission of Judgment
Outcome
Application for rescission of judgment dismissed; costs awarded against First Applicant and his attorney de bonis propriis.
Judges
Nochumsohn
Legal Topics
Rescission of Judgment, Summary Judgment, Special Executability, Practice Directive Compliance
Civil Procedure Land and Property Rescission of Judgment Summary Judgment Special Executability Practice Directive Compliance

Case Brief

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Parties

Solomon Twala

Applicant

Nonkanyiso Octavia Mbese

Applicant

The Standard Bank of South Africa Limited

Respondent

Procedural Posture

Urgent Application / Opposed Motion for Rescission of Judgment

Legal Issues

  1. 1 Whether the application for rescission of judgment is competent in law after an opposed summary judgment was granted.
  2. 2 Whether the applicants have established grounds for rescission of the order declaring the property specially executable.
  3. 3 Whether the conduct of the applicants' attorney warrants a de bonis propriis costs order.

Ratio Decidendi

The court found that the application for rescission was incompetent in law because the judgment sought to be rescinded was granted after an opposed summary judgment hearing, for which the proper remedy is appeal, not rescission. There was no evidence of non-service or a bona fide defence to the order declaring the property specially executable. The Second Applicant was not properly before the court, as she had no knowledge of the proceedings and did not sign a confirmatory affidavit. The conduct of the First Applicant's attorney, including failure to comply with practice directives and inadequate preparation, warranted a de bonis propriis costs order. The application was dismissed, and...

Court Disposition

Application for rescission of judgment dismissed; costs awarded against First Applicant and his attorney de bonis propriis.

Orders

  • The application for rescission of judgment is dismissed.
  • The First Applicant's instructing attorney, Mr Antonio Ledwaba, is ordered to pay the wasted costs of 18 August 2021 de bonis propriis, on an attorney and client scale, with such costs not to be billed to the First or Second Applicant.