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[2013] ZAGPPHC 273
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Van Rensburg v Absa Bank Ltd (39759/2012) [2013] ZAGPPHC 273 (3 September 2013)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE
NO: 39759/2012
DATE:03/09/2013
In
the matter between:
HENNIE
JANSE VAN
RENSBURG
...........................................................................
APPLICANT
AND
ABSA
BANK
LIMITED
............................................................................................
RESPONDENT
JUDGMENT
BAQWA
J
[1]
It would appear that summons was served on defendant whilst he was
away on business in Botswana and that summons were received
by his
cleaner on 26 July 2012 and/or 27 July 2012.
[2]
According to the Sherriff’s return, summons was served on 19
July 2012. This puts the dies in dispute.
[3]
In any event upon defendant’s return on 28 August 2012 he took
the necessary steps to defend the action by instructing
an attorney
to defend the action.
[4]
An appearance to defend was entered on 7 August 2012. Default
judgment was granted on 8 August 2012.
[5]
Respondent opposes the application and raises a point in limine
namely, failure to apply for condonation of late filling of
application for rescission.
[6]
In terms of Uniform Rule 31 (2)(b), a defendant is obliged to lodge
an application for rescission of judgment within 20 days
of obtaining
knowledge of default judgment. Applicant has failed to disclose when
exactly he became aware of the existence of the
default judgment, the
default judgment having been delivered to his attorney on 22 October
2012 outside the 20 day period.
[7]
Regarding the issue of a bona fide defence, applicant alleges that
the motor vehicle has been paid in full but he has neglected
to
attach any documentary proof of payments to his founding affidavit.
An applicant cannot merely make a glib statement that he
has paid in
full without producing the necessary proof of such payments. He has
to be specific as to how much , when, where and
to whom payment was
made and furnish such documentary proof to discount the allegations
by proof.
[8]
The requirements for an application for rescission under Rule
31(2)(b) are that:
"8.1.
The defendant/applicant must give a reasonable explanation for his or
her default;
8.2.
The defendant’s application must be bona fide and not made with
the intention of delaying the plaintiff’s claim.
8.3.
The defendant must show that he has a bona fide defence for
plaintiffs action. ”
[9]
In casu applicant has not provided a reasonable explanation for
condonation to be granted. Further, he failed to show that he
was not
in wilful default. Lastly he failed to demonstrate a bona fide
defence
[10]
In the results the application for rescission of judgment is
dismissed with costs.
It
is so ordered.
BAQWA
J
(JUDGE
OF THE HIGH COURT)