For more than two decades, a legal fiction stood as fact. A default judgment granted to Nedbank in 1999 declared the property of Lefu Stephen Moisi executable. The home was sold, transferred multiple times, and eventually ended up in the hands of a company called Final Housing Solution (Pty) Ltd.
There was just one problem. When the summons was purportedly served on Moisi in February 1999, he had already been dead for nearly two years.
The South Gauteng High Court in Johannesburg has now corrected that error, rescinding the 1999 default judgment and ordering that the property be restored to Moisi’s estate.
The Case
The matter dates back to July 1989, when Nedbank (then Nedcor Bank Limited) advanced Moisi a loan of R37,196, secured by a mortgage bond over his property. When Moisi breached the agreement, the bank instituted foreclosure proceedings. In March 1999, it obtained a default judgment declaring the property executable.
The property was sold and subsequently transferred through several entities, eventually landing in the name of Final Housing Solution around 2004.
But the sheriff’s return of servicethe official record of how the summons was deliveredclaimed it had been personally served on Moisi in February 1999. Moisi’s death certificate, however, told a different story: he had died in December 1997.
At the time the summons was issued, Moisi’s estate was already under administration. Mamokele Maria Moisi, his sole heir, had been appointed executrix in March 1998. The court found that there had been no proper service on her in that capacity, and the default judgment was granted in her absence.
Nedbank’s Application
Nedbank itself brought the rescission application, conceding that the summons could not have been properly served and that the 1999 judgment was void from the outset. The bank sought to have the judgment rescinded and all subsequent transfers declared invalid.
Final Housing Solution, the current registered owner, opposed the application. It argued that:
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The rescission was frivolous, unreasonable, and an abuse of process.
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The parties had been negotiating compensation, and Nedbank proceeded despite knowing the issue was unresolved.
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As an innocent purchaser, it would suffer significant financial prejudice if rescission was granted without compensation.
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It was entitled to compensation at market value, claiming it stood to lose the full market value of the property.
The company stated it had sought R500,000 to settle the matter; Nedbank had offered R10,430the original purchase price plus transfer costs and interest.
Final Housing Solution also argued that Nedbank knew or ought to have known of Moisi’s death before obtaining judgment, particularly because an insurance policy covering the mortgage had allegedly been paid out.
The Court’s Ruling
Acting Judge N Mzuzu focused on the central question: was the 1999 judgment erroneously granted?
The answer was unequivocal. Had the court in 1999 been aware that Moisi was dead, the default judgment would never have been granted. The fact that the summons was purportedly served on a deceased person meant the proceedings were a nullity.
The judge dismissed concerns about compensation and prejudice as irrelevant to the rescission application. Those issues, the court held, could be pursued separately if necessary.
Crucially, the court noted that Final Housing Solution had never taken possession of the property in approximately 19 years. Despite claiming it would lose rental income had it taken possession in 2005, it never occupied the property or earned a cent from it.
The court:
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Granted condonation for the late filing of Nedbank’s replying affidavit
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Rescinded the March 1999 default judgment
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Declared invalid and set aside all subsequent property transfers
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Directed the Registrar of Deeds to cancel Final Housing Solution’s title deed
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Ordered the property registered in the name of Mamokele Maria Moisi as executrix of the deceased estate
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Ordered Nedbank to pay the transfer costs for restoring the property to the estate
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Ordered each party to pay its own legal costs
What It Means
For the Moisi family, the ruling represents a belated restoration of rights. A property lost to a legal process built on a fiction will finally be returned to the estate.
For Final Housing Solution, it is a stark lesson in property law: a chain of title is only as strong as its weakest link. If the original judgment was void, every subsequent transfer falls with it.
For Nedbank, the outcome is a costly administrative errorthough the bank’s own application to correct it may mitigate reputational damage.
And for the legal system, it is a reminder that even decades-old judgments can be reopened when fundamental defects are exposed. Service on a dead man is not service at all. And a court cannot grant judgment against someone who cannot appearbecause they never could.
