Allen and Another v Dell (25803/2011) [2014] ZAGPPHC 694 (2 September 2014)

Allen and Another v Dell (25803/2011) [2014] ZAGPPHC 694 (2 September 2014)

The court found that the applicants were not properly served with summons prior to the default judgments, as confirmed by the sheriff's returns of non-service. The respondent failed to explain how he obtained the applicants' correct addresses only after judgment and did not seek substituted service or edictal citation. The applicants acted promptly upon learning of the judgments and brought rescission applications within a reasonable time. The claims against the applicants were either res judicata, prescribed, or did not disclose a cause of action. The respondent's applications to strike out the rescission applications and for security for costs were not competent and unsupported by...

Citation
[2014] ZAGPPHC 694
Parties
Applicant: David Bernard Allen; Applicant: Maria Magdalene Willemse; Applicant: Robert Demajistre; Applicant: Hermann Winkler; Applicant: Perry Trechak; Applicant: Herbert Winkler; Applicant: Philip Kaltenbacher; Respondent: Ralph Dennis Dell
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 September 2014
Case Number
25803/2011
Procedural Posture
Rescission Application / Judgment on Consolidated Rescission Applications
Outcome
Default judgments against the applicants rescinded; respondent's applications dismissed; costs awarded against respondent.
Judges
Jansen
Legal Topics
Rescission of Judgment, Default Judgment, Service of Process, Condonation, Security for Costs
Civil Procedure Rescission of Judgment Default Judgment Service of Process Condonation Security for Costs

Case Brief

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Parties

David Bernard Allen

Applicant

Maria Magdalene Willemse

Applicant

Robert Demajistre

Applicant

Hermann Winkler

Applicant

Perry Trechak

Applicant

Herbert Winkler

Applicant

Philip Kaltenbacher

Applicant

Ralph Dennis Dell

Respondent

Procedural Posture

Rescission Application / Judgment on Consolidated Rescission Applications

Legal Issues

  1. 1 Whether the default judgments granted against the applicants on 3 October 2012 should be rescinded.
  2. 2 Whether the applicants were properly served with summons prior to the default judgments.
  3. 3 Whether the respondent's applications to strike out the rescission applications and for security for costs are competent.

Ratio Decidendi

The court found that the applicants were not properly served with summons prior to the default judgments, as confirmed by the sheriff's returns of non-service. The respondent failed to explain how he obtained the applicants' correct addresses only after judgment and did not seek substituted service or edictal citation. The applicants acted promptly upon learning of the judgments and brought rescission applications within a reasonable time. The claims against the applicants were either res judicata, prescribed, or did not disclose a cause of action. The respondent's applications to strike out the rescission applications and for security for costs were not competent and unsupported by...

Court Disposition

Default judgments against the applicants rescinded; respondent's applications dismissed; costs awarded against respondent.

Orders

  • The default judgments granted against the applicants on 3 October 2012 are rescinded.
  • The respondent's applications to strike out the rescission applications and for security for costs are dismissed with costs.