Rossitter & others v Nedbank Ltd

The Rossitter Family Trust concluded two substantial loan agreements with BOE Private Bank, later Nedbank Ltd, secured by mortgage bonds over immovable properties and supported by suretyships. The loans were varied several times, culminating in ‘bullet repayment’ obligations due on 1 June 2010. The trust defaulted. Nedbank issued summons in October 2010, which the appellants defended. After further payment variations and renewed default, Nedbank served a notice of bar in March 2012. When no plea was delivered, Nedbank applied to the registrar for default judgment, which was granted on 30 May 2012. The appellants applied for rescission under Uniform rule 42(1)(a), contending that the default judgment was erroneously granted because the notice of intention to apply for default judgment did not comply with Uniform rule 31(5)(a) read with the KwaZulu-Natal Practice Manual. The High Court dismissed the rescission application, leading to this appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order rescinding and setting aside the default judgment granted on 30 May 2012, with the respondent ordered to pay the costs of the rescission application.

The case reaffirms the strict procedural requirements governing default judgments and underscores that non-compliance with Uniform rules and duly promulgated practice manuals renders such judgments erroneously granted. It confirms that rescission under Uniform rule 42(1)(a) is peremptory once error is established, without consideration of prospects of success or substantive defences. The judgment also clarifies that execution during a pending appeal does not necessarily amount to acquiescence.