Zanazo v Firstrand Bank Limited t/a First National Bank (27863/14) [2016] ZAGPJHC 367 (6 November 2016)

Zanazo v Firstrand Bank Limited t/a First National Bank (27863/14) [2016] ZAGPJHC 367 (6 November 2016)

The court found that the applicant's account had remained in arrears throughout, and that payment of amounts equal to the arrears at a later stage, in erratic and unequal payments, did not settle the arrears or reinstate the credit agreement. The applicant's contention that a new section 129 notice was required was rejected. The court held that the matter was res judicata, as the same cause of action had already been considered and dismissed in a previous urgent application. The applicant's defence was found to be unsustainable, and the application was dismissed with costs, including reserved costs from a previous postponed application.

Citation
[2016] ZAGPJHC 367
Parties
Applicant: Esther Nomhle Zanazo; Respondent: Firstrand Bank Limited t/a First National Bank; Respondent: Mmamane Daniel Rammawi; Respondent: Registrar of Deeds
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 November 2016
Case Number
27863/14
Procedural Posture
Urgent Application / Application for Interdict Pending Rescission Application
Outcome
Application dismissed with costs, including reserved costs from the postponed application.
Judges
S Weiner
Legal Topics
Interdict, Res Judicata, National Credit Act, Section 129 Notice, Mortgage Arrears
Civil Procedure Land and Property Interdict Res Judicata National Credit Act Section 129 Notice Mortgage Arrears

Case Brief

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Parties

Esther Nomhle Zanazo

Applicant

Firstrand Bank Limited t/a First National Bank

Respondent

Mmamane Daniel Rammawi

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Application for Interdict Pending Rescission Application

Legal Issues

  1. 1 Whether the applicant is entitled to an interdict preventing transfer of the property pending rescission of judgment.
  2. 2 Whether the matter is res judicata due to a previous urgent application dismissed on the same grounds.
  3. 3 Whether payment of arrears reinstated the credit agreement, requiring a new section 129 notice.

Ratio Decidendi

The court found that the applicant's account had remained in arrears throughout, and that payment of amounts equal to the arrears at a later stage, in erratic and unequal payments, did not settle the arrears or reinstate the credit agreement. The applicant's contention that a new section 129 notice was required was rejected. The court held that the matter was res judicata, as the same cause of action had already been considered and dismissed in a previous urgent application. The applicant's defence was found to be unsustainable, and the application was dismissed with costs, including reserved costs from a previous postponed application.

Court Disposition

Application dismissed with costs, including reserved costs from the postponed application.

Orders

  • The application is dismissed with costs including the costs reserved on the 5th October 2016.