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[2013] ZAGPPHC 16
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Baloyi and Another v Absa Bank Ltd and Others (9850/2000) [2013] ZAGPPHC 16 (1 February 2013)
NOT
REPORTABLE
IN THE HIGH COURT OF THE REPUBLIC
OF SOUTH AFRICA
NORTH
GAUTENG, PRETORIA
Case
number 9850/2000
DATE:01/02/2013
In
the matter between:
RASIMATE
THOMAS
BALOYI
..............................................................................
First
Applicant
JANE
MIHLOTI BALOYI
…....................................................................................
Second
Applicant
and
ABSA
BANK
LTD
....................................................................................................
First
Respondent
RAMOGOHLO
DONA
MAPHUTA
…..........................................................
Second
Respondent
MATJEANE
MAPHUTHO
NO
................................................................................
Third
Respondent
REGISTRAR
OF DEEDS,
PRETORIA
..................................................................
Fourth
Respondent
NEDBANK
LIMITED
................................................................................................
Fifth
Respondent
JUDGMENT
BAM
AJ
1.
The applicants, in prayer one of this application, applied for an
order rescinding a default judgment granted by the Registrar
against
the applicants on 19 May 2000. At the time the applicants were
residing in a property acquired by them in 1997. First respondent,
the bond holder, was the plaintiff in the case, claiming payment of
R64.020- 95. An order for the sale of the property in execution
was
also granted by the Registrar. Subsequently the property was sold in
execution to the second respondent after a bond was registered
in
favour of fifth respondent. The property was then registered in the
name of the second respondent. The latter events prompted
the
applicants to apply, in prayers 2 and 3 of this application, for an
order compelling the fourth respondent (the Registrar)
to restore the
registration of the property in the name of the applicants and for an
order cancelling the bond registered in favour
of the fifth
respondent.
2.
The application for rescission of the default judgment is not
opposed. Prayers 2 and 3 are however opposed by only the fifth
respondent.
3.
The basis for the application is that the initial summons was not
served on the applicants.I do not deem it necessary to refer
in
detail to the evidential material on record in that regard. It
suffices to say that the applicants have made out a proper case
for
the rescission of the judgment in question.
4.
On the probabilities it may be that the first respondent will not be
interested to pursue the matter afresh. In that event the
applicants
should consider their options in law. However, the fifth respondent's
concerns about prayers 2 and 3 are understandable.
In my opinion, if
the application for rescission is granted, it does not follow that
the applicants will eventually succeed with
their defence against the
first applicant's claim. That will be for the trial court to decide.
Prayers 3 and 4 clearly affect the
rights of fifth respondent. The
issues addressed in those prayers will be subject to the finding of
the trial court. Accordingly
this Court will not be entitled to grant
the relief sought in prayers 3 and 4.
5.
I therefore make the following order:
ORDER
1.
The default judgment in case number 9850/2000, granted by the
Registrar on 19 May 2000 against the applicants in favour of ABSA
Bank Ltd, is rescinded.
2.
Prayers 2 and 3 are postponed sine die pending the trial court's
final decision in case number 9850/2000.
3.
No costs made.
A
J BAM ACTING
JUDGE
OF THE HIGH COURT
31
January 2013