Van Niekerk and Others v Absa Bank Limited (8763/2013) [2014] ZAGPJHC 408 (15 December 2014)

Van Niekerk and Others v Absa Bank Limited (8763/2013) [2014] ZAGPJHC 408 (15 December 2014)

The court found that service of the court documents was effected by handing them to a security guard at the entrance to the gated community, who was neither an employee nor a family member of the applicants. On the probabilities, the applicants did not receive the documents, and service was therefore irregular. As a result, the default judgment was erroneously granted in the absence of proper service, falling within the ambit of uniform rule 42(1)(a). The applicants were not in wilful default, and it was unnecessary to consider the merits of their defence under the common law. The default judgment was accordingly rescinded and set aside.

Citation
[2014] ZAGPJHC 408
Parties
Applicant: Hendrik Johannes Van Niekerk; Applicant: Jaques Janse Van Rensburg; Applicant: Sherene Janse Van Rensburg; Applicant: Johann Nico Junius; Respondent: Absa Bank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 December 2014
Case Number
8763/2013
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment granted.
Judges
T L Mosikatsana
Legal Topics
Rescission of Judgment, Irregular Service, Mortgage Bond Dispute, Default Judgment, Uniform Rule 42
Civil Procedure Land and Property Rescission of Judgment Irregular Service Mortgage Bond Dispute Default Judgment Uniform Rule 42

Case Brief

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Parties

Hendrik Johannes Van Niekerk

Applicant

Jaques Janse Van Rensburg

Applicant

Sherene Janse Van Rensburg

Applicant

Johann Nico Junius

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 10 April 2013 should be rescinded due to irregular service of court documents.
  2. 2 Whether the applicants have established grounds for rescission under uniform rule 42(1)(a) or the common law.
  3. 3 Whether the applicants were in wilful default and whether they have a bona fide defence to the respondent's claim.

Ratio Decidendi

The court found that service of the court documents was effected by handing them to a security guard at the entrance to the gated community, who was neither an employee nor a family member of the applicants. On the probabilities, the applicants did not receive the documents, and service was therefore irregular. As a result, the default judgment was erroneously granted in the absence of proper service, falling within the ambit of uniform rule 42(1)(a). The applicants were not in wilful default, and it was unnecessary to consider the merits of their defence under the common law. The default judgment was accordingly rescinded and set aside.

Court Disposition

Application for rescission of default judgment granted.

Orders

  • The default judgment granted against the applicants on 10 April 2013 is rescinded and set aside.
  • The applicants are granted leave to oppose the respondent's application; they must file notice of intention to oppose within five days of this order and answering affidavits within fifteen days thereafter.