- A 1999 default judgment was rescinded after the court learned the summons had been personally served on a man who had died two years earlier, which made the order invalid.
- The High Court deemed every following transfer of the property invalid, instructing the Registrar of Deeds to return ownership to the deceased’s executrix.
- Acting Judge N Mzuzu stated that once an error under Rule 42(1)(a) is identified, no proof of good cause is necessary, and the judgment must be set aside.
The High Court in Johannesburg has reversed a 1999 foreclosure judgment after finding that the man it targeted had died before the summons was said to be served.
Nedbank had obtained the judgment against Lefu Stephen Moisi, who had died in December 1997. The summons was supposedly served on him in February 1999. Mamokele Maria Moisi was appointed as the executrix for his estate in March 1998, but no proper service was made on her before the default judgment was granted on March 5, 1999.
A foreclosure judgment is the court order a bank needs before it can sell a mortgaged property to recover unpaid debt. When a borrower defaults on a home loan tied to a mortgage bond, the lender must go to court to confirm the outstanding balance and have the property declared specially executable. This means the property can be sold by the sheriff. Because a person's home and property rights are involved, proper service of summons is a critical safeguard. In this case, that safeguard completely failed.
A court order against a dead man
The sheriff’s return of service noted that the summons had supposedly been served personally on Moisi on February 16, 1999. However, the death certificate showed he had died on December 16, 1997. Acting Judge N Mzuzu ruled that personal service was impossible under these circumstances.
The court stated, “I believe that had the judge known the deceased had already passed away, the default judgment would not have been granted.” The judge added, “The judgment was, without a doubt, wrongly sought and must be set aside, as it was both wrongly sought and granted.”
The court emphasised that the deceased did not receive any notice of the foreclosure proceedings, even though such notice was required. This lack of notice meant the estate had no chance to defend itself before the property was declared specially executable.
According to Rule 42(1)(a) of the Uniform Rules of Court, a court can rescind an order that was wrongly sought or granted when an affected party is absent. Judge Mzuzu reiterated that in such cases, an applicant is not required to show good cause beyond proving the procedural error.
“The main issue,” the judge stated clearly, “is that a default judgment was granted against someone who had died long before the judgment was issued.”
Purchaser’s objections dismissed
The second respondent, Final Housing Solution Pty Ltd, acquired the property after a series of transfers that followed the sale in execution. The company did not deny that the judgment was erroneously granted. Instead, it claimed it should receive compensation before the property was given back to the executrix.
The company argued that restoring the property would cause it financial harm and raised several preliminary objections, including alleged disputes of fact, non-joinder of the sheriff, and lack of standing to bring the issue. The court dismissed these arguments.
Regarding non-joinder, Judge Mzuzu noted that “the sheriff has no material and substantial interest in the outcome of the proceedings.” The court explained that the rescission application is not about holding a party accountable but is about correcting a judgment that was mistakenly obtained.
On the purchaser’s other concerns, the court found that “the issues raised by the second respondent, whether genuine or not, do not pertain to the rescission application.” Any claim for compensation would need to be pursued separately.
Property restored to the estate
After determining that the 1999 judgment was seriously flawed, the court rescinded it and declared all subsequent transfers invalid and ineffective. The Registrar of Deeds was instructed to cancel the existing title deed and re-register the property in Mamokele Maria Moisi’s name as executrix of the estate. Nedbank was ordered to cover all transfer costs involved in restoring the property.
Each party was instructed to bear its own costs.
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