INTRODUCTION
[1] This is an Application to rescind a default Judgment granted in the above honourable court by Van der Merwe DJP (as he was then known) against the Applicant in favour of the Respondent on 13 October 2011 for:
[1.1.] payment of the sum of R247 890.54; and
[1.2.] Interest thereon at the agreed rate of 10%, per annum in terms of the said mortgage bond from 26 June 2010 to date of payment.
[1.3.] an order that Portion 109 (A PORTION OF PORTION 20 ) OF THE FARM ELANDSFONTEIN 334 TOWNSHI P REGISTRATION IQ, THE PROVINCE OF GAUTENG, measuring 8,85653 (Eight Comma Five Six Five Three) Hectares, Held by Deed of Transfer TI43612/1987, (“the property”) be declared executable.
[2] The amount is alleged to be the balance due and owing to the Respondent in respect of monies lent and advanced “(loan”) to the Applicant, a Close Corporation (“CC”) that was the registered owner of the property, situated at Plot 109 Greendale Estate, Elandsfontein, Walkerville over which a mortgage bond was registered on 4 August 1995 in favour of the Respondent as security for a loan advanced to the CC to buy the property.
[3] The CC’s sole member, Samuel Nduduzo Fihlela (“the deceased”) had signed a deed of suretyship binding himself as surety and co-principal debtor with the CC for the due settlement of all monies owing on the bond. He passed away on 26 February 2009. The CC was the holder of a home owner’s insurance certificate HLB001573305 issued by the Respondent for which on 18 October 2003, it was paying a monthly premium of R253.74 and also paying a life assurance monthly premium of R642 on the life of the deceased as surety and guarantor to secure the CC’s indebtedness on the bond. The amounts were charged to the CC home loan account, included in the monthly instalment payable on the bond.
