Van Wyk and Another v Absa Bank Limited (1439/12) [2013] ZANCHC 50 (25 October 2013)

Van Wyk and Another v Absa Bank Limited (1439/12) [2013] ZANCHC 50 (25 October 2013)

The applicants failed to establish good cause for the rescission of the default judgment. Although the delay in bringing the application was not inordinate and the applicants may not have wilfully defaulted, they did not provide a sufficient explanation for the delay nor did they set out a bona fide defence with prospects of success. The Bank complied with section 129 of the National Credit Act and Rule 18(6) by serving the required notices and attaching the deeds of suretyship to the summons. The principal debtor's deregistration does not release the sureties from liability, and the applicants did not prove that the debt had prescribed. The only merit in the applicants' case was the...

Citation
[2013] ZANCHC 50
Parties
Applicant: Willem Alexandra Van Wyk; Applicant: Charlotte Levina Van Wyk; Respondent: Absa Bank Limited
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
25 October 2013
Case Number
1439/12
Procedural Posture
Rescission Application / Application for Condonation and Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs; default judgment varied to limit second applicant's liability to R300,000.00.
Judges
Phatshoane
Legal Topics
Rescission of Default Judgment, Suretyship Liability, National Credit Act Compliance, Prescription of Debt, Variation of Judgment
Civil Procedure Banking and Finance Rescission of Default Judgment Suretyship Liability National Credit Act Compliance Prescription of Debt Variation of Judgment

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Parties

Willem Alexandra Van Wyk

Applicant

Charlotte Levina Van Wyk

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Condonation and Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for the rescission of the default judgment.
  2. 2 Whether the applicants have a bona fide defence to the Bank's claim with prospects of success.
  3. 3 Whether the Bank complied with section 129 of the National Credit Act and Rule 18(6).

Ratio Decidendi

The applicants failed to establish good cause for the rescission of the default judgment. Although the delay in bringing the application was not inordinate and the applicants may not have wilfully defaulted, they did not provide a sufficient explanation for the delay nor did they set out a bona fide defence with prospects of success. The Bank complied with section 129 of the National Credit Act and Rule 18(6) by serving the required notices and attaching the deeds of suretyship to the summons. The principal debtor's deregistration does not release the sureties from liability, and the applicants did not prove that the debt had prescribed. The only merit in the applicants' case was the...

Court Disposition

Application for rescission of judgment dismissed with costs; default judgment varied to limit second applicant's liability to R300,000.00.

Orders

  • The application for the rescission of judgment entered against Mr Willem Alexandra Van Wyk and Ms Charlotte Levina Van Wyk is dismissed with costs.
  • Paragraph 1 of the default judgment dated 06 November 2012 is varied as follows: (a) As against the first defendant, Mr W A Van Wyk, for the payment of R717,586.70; (b) As against the second defendant, Ms CL Van Wyk, for the payment of R300,000.00.