The South Gauteng High Court in Johannesburg has overturned a default judgment that allowed Nedbank to repossess a man’s Nissan Navara after finding that court papers were allegedly served on him in the presence of a wife who had died over a decade ago.
Acting Judge Karabo Mvub rescinded a March 2025 court order that had confirmed the cancellation of P Mokhwesana’s vehicle finance agreement and authorised the return of his 2021 Nissan Navara to Nedbank.
The court also ordered that the vehicle be restored to Mokhwesana and directed Nedbank to pay the costs of the rescission application on the punitive attorney-and-client scale.
The dispute arose after Nedbank obtained default judgment against Mokhwesana on the basis that he had fallen into arrears on an instalment sale agreement for the Nissan Navara. The bank secured an order cancelling the agreement, authorising the repossession of the vehicle and allowing it to retain all monies already paid by the customer.
Mokhwesana subsequently approached the court seeking to have the judgment rescinded. He argued that he had never received the summons or other court documents that led to the default judgment being granted. He also maintained that he had continued making payments on the account.
According to the judgment, Mokhwesana had become the victim of fraud after a false debt review process was allegedly registered against him. The fraudulent debt review caused debit orders on the vehicle account to be halted, resulting in arrears being recorded. After investigations, the debt review was found to be illegitimate and Nedbank resumed debiting payments from his account.
Central to the rescission application was a dispute over whether the summons had in fact been served on Mokhwesana. Sheriff’s returns stated that the summons and a notice relating to mediation were personally served on him at his Pretoria address in February 2025.
Mokhwesana denied ever receiving the documents and described the alleged service as “phantom service”. He said he only became aware of the judgment when the sheriff attached the vehicle in April 2025.
Nedbank opposed the application and relied on the sheriff’s returns and a confirmatory affidavit from the sheriff. The sheriff maintained that personal service had been effected and claimed that Mokhwesana accepted the documents in the presence of his wife, who also allegedly confirmed his identity.
That assertion proved fatal to Nedbank’s opposition.
In reply, Mokhwesana informed the court that his wife had died in 2014 and attached a death certificate as proof. The court also noted that the instalment sale agreement itself recorded him as a widower.
Judge Mvubu found that the evidence presented by Mokhwesana was clear and compelling enough to overcome the usual presumption that a sheriff’s return of service is correct.
The judge said it was not plausible that the sheriff could have personally served Mokhwesana in the presence of a wife who had died years earlier. The court concluded that Mokhwesana had successfully demonstrated that he was not served with the summons.
Having reached that finding, the court held that the default judgment had been erroneously granted in his absence and should be rescinded. The judge said it was unnecessary to consider the substantive dispute over whether Mokhwesana was actually in arrears.
The court was also sharply critical of Nedbank’s decision to continue opposing the application after being confronted with evidence of the wife’s death. Judge Mvubu noted that the bank’s own records reflected Mokhwesana’s marital status as a widower and questioned how the bank could reconcile that information with its reliance on the sheriff’s account that service occurred in the presence of a wife.
The judgment further criticised statements made by a Nedbank litigation team leader who claimed to have reviewed all relevant documentation and to be fully conversant with the matter. The court found that those assertions could not be reconciled with the bank’s continued reliance on allegations involving Mokhwesana’s deceased wife.
Concluding that Nedbank ought not to have opposed the application once the contradiction became apparent, the court awarded punitive costs against the bank.
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