Bayport Securitisation (RF) Ltd v Bambiso

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: A Beyleveld AJ and J Roberson J
• Judgment Date: 25 June 2020
• Citation: 2020 JDR 1233 (ECG)
• Hearing Date: 19 June 2020
• Docket Number: CA27/2017; CA370/2016; CA310/2016

Beyleveld AJ:

[1]

The litigation in the Magistrate's Court Mdantsane that preceded these three appeals [1] is not an example of genuine socio-economic litigation [2] aimed at protecting economic inequalities and imbalances, nor can it be equated with the struggle of Franz Kafka's character Joseph K [3] against unreasoning and unreasonable authority.

[2]

The motive behind the litigation, if one has regard to the degree of confabulation contained in the affidavits filed on behalf of the Respondents in the

2020 JDR 1233 p3

Beyleveld AJ

Magistrate's Court [4] is nothing other than an attempt, utilizing unwarranted procedural defences, to further delay payment of what is due to the Appellant in terms of default judgments granted in favour of the Appellant pursuant to signed consents to judgments in terms of Section 58 of the Magistrate's Court Act. [5]

[3]

The Magistrate at Mdantsane, and on the application of the Respondents, rescinded the default judgments granted against them. [6]

[4]

Besides minor changes such as amounts, dates, names and the like the allegations contained in the original rescission application papers are for all practical purposes the same.

[5]

If one has regard to the issues raised in all three of the rescission applications [7] and if one has regard to similar litigation which also culminated in appeals before this Court [8] , it is apparent that a standard precedent was utlised in all the matters with substantial amounts of copy paste.

[6]

The Magistrate in granting the rescissions and finding in favour of the

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Beyleveld AJ

Respondents did so for a variety of reasons.

[7]

No useful purpose will be served to enumerate in detail the bases relied upon by the Magistrate in the original three rescission applications for reaching her conclusion. [9]

[8]

The issues raised in this appeal have been dealt with by this Court as well as the Supreme Court of Appeal on various occasions. [10]

[9]

The golden thread that runs through all these Judgments is the acceptance of the essential element required to successfully obtain a rescission of judgment, namely the establishment of good cause for the rescission. [11]

[10]

It is the lack of formulating a bona fide defence in all the rescission

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Beyleveld AJ

applications which is definitive of this appeal. [12]

[11]

Nowhere in the affidavits filed on behalf of the Respondents in the Magistrate's Court applications for rescission of judgment is there evidence that there exists a bona fide defence to the claim which prima facie has some prospect of success. [13]

[12]

Put differently, none of the Respondents in such rescission applications raised the existence of an issue fit for trial. [14]

[13]

The Respondents [15] failed in their papers, not only to establish good...