Van der Schyff and Another v Firstrand Bank Limited and Another (2838/2017) [2020] ZAMPMHC 7 (19 May 2020)

Van der Schyff and Another v Firstrand Bank Limited and Another (2838/2017) [2020] ZAMPMHC 7 (19 May 2020)

The court found that the applicants failed to provide a full and reasonable explanation for the delay in filing the rescission application. The evidence showed that their attorneys were aware of the judgment shortly after it was granted, and the applicants did not take the court into their confidence regarding the period between the judgment and the writ of execution. Furthermore, the applicants did not disclose any defence to the respondent's claim, admitting liability and only seeking to delay execution. The court held that condonation is not for the mere taking and must be supported by a comprehensive explanation and prospects of success, both of which were lacking. Accordingly,...

Citation
[2020] ZAMPMHC 7
Parties
Applicant: Lourens van der Schyff; Applicant: Susan van der Schyff; Respondent: Firstrand Bank Limited; Respondent: The Sheriff, Volksrus
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
19 May 2020
Case Number
2838/2017
Procedural Posture
Urgent Application / Application for Condonation and Rescission of Default Judgment
Outcome
Application for condonation dismissed; applicants ordered to pay costs on attorney and client scale, jointly and severally.
Judges
HF Brauckmann
Legal Topics
Rescission of Judgment, Condonation, Default Judgment, Suretyship, Prospects of Success
Civil Procedure Rescission of Judgment Condonation Default Judgment Suretyship Prospects of Success

Case Brief

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Parties

Lourens van der Schyff

Applicant

Susan van der Schyff

Applicant

Firstrand Bank Limited

Respondent

The Sheriff, Volksrus

Respondent

Procedural Posture

Urgent Application / Application for Condonation and Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants provided a reasonable and full explanation for the delay in filing the rescission application.
  2. 2 Whether the applicants have demonstrated reasonable prospects of success in the rescission application.
  3. 3 Whether condonation for the late filing of the rescission application should be granted.

Ratio Decidendi

The court found that the applicants failed to provide a full and reasonable explanation for the delay in filing the rescission application. The evidence showed that their attorneys were aware of the judgment shortly after it was granted, and the applicants did not take the court into their confidence regarding the period between the judgment and the writ of execution. Furthermore, the applicants did not disclose any defence to the respondent's claim, admitting liability and only seeking to delay execution. The court held that condonation is not for the mere taking and must be supported by a comprehensive explanation and prospects of success, both of which were lacking. Accordingly,...

Court Disposition

Application for condonation dismissed; applicants ordered to pay costs on attorney and client scale, jointly and severally.

Orders

  • The application for condonation is dismissed.
  • The applicants are ordered to pay the costs of the application on a scale as between attorney and client, jointly and severally, the one to pay the other to be absolved.