Zammit and Another v Standard Bank of South Africa Ltd (7593/10) [2011] ZAKZDHC 84 (2 June 2011)

Zammit and Another v Standard Bank of South Africa Ltd (7593/10) [2011] ZAKZDHC 84 (2 June 2011)

The court found that the applicants provided a satisfactory explanation for their default, which was due to their attorneys' error and not attributable to them. The delay in bringing the rescission application was adequately explained and not inexcusably long. The applicants raised arguable defences, including the lack of notice under section 86(10) of the National Credit Act to both applicants and the possibility of reopening the debt review process under section 86(11). These defences have some prospects of success and are sufficient for the purposes of rescission. The court held that the applicants are bona fide in seeking to prevent the sale of their home and have made out a case for...

Citation
[2011] ZAKZDHC 84
Parties
Applicant: Marc Henry Zammit; Applicant: Lisa Ann Marie Zammit; Respondent: The Standard Bank of SA Limited
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
2 June 2011
Case Number
7593/10
Procedural Posture
Rescission Application / Application for Rescission of Summary Judgment; Application for Condonation
Outcome
The judgment granted against the applicants on 25 August 2010 is rescinded. The application for summary judgment is refused. The applicants are given leave to defend the action. The matter is referred to trial on the expedited roll. The rule nisi granted on 10 November 2010 is discharged. The applicants are ordered...
Judges
Rall AJ
Legal Topics
Rescission of Judgment, Summary Judgment, National Credit Act, Condonation, Notice Requirements
Civil Procedure Banking and Finance Rescission of Judgment Summary Judgment National Credit Act Condonation Notice Requirements

Case Brief

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Parties

Marc Henry Zammit

Applicant

Lisa Ann Marie Zammit

Applicant

The Standard Bank of SA Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Summary Judgment; Application for Condonation

Legal Issues

  1. 1 Whether the applicants have shown sufficient cause for rescission of the summary judgment granted by default.
  2. 2 Whether the delay in bringing the rescission application is excusable and adequately explained.
  3. 3 Whether the respondent complied with the notice requirements under section 86(10) of the National Credit Act for both applicants.

Ratio Decidendi

The court found that the applicants provided a satisfactory explanation for their default, which was due to their attorneys' error and not attributable to them. The delay in bringing the rescission application was adequately explained and not inexcusably long. The applicants raised arguable defences, including the lack of notice under section 86(10) of the National Credit Act to both applicants and the possibility of reopening the debt review process under section 86(11). These defences have some prospects of success and are sufficient for the purposes of rescission. The court held that the applicants are bona fide in seeking to prevent the sale of their home and have made out a case for...

Court Disposition

The judgment granted against the applicants on 25 August 2010 is rescinded. The application for summary judgment is refused. The applicants are given leave to defend the action. The matter is referred to trial on the expedited roll. The rule nisi granted on 10 November 2010 is discharged. The applicants are ordered...

Orders

  • The judgment granted against the applicants on 25 August 2010 is rescinded.
  • The application for summary judgment is refused.