Bhembe and Another v Industrial Development Incorporation Of South Africa (17815/2020) [2023] ZAGPJHC 223 (22 February 2023)

Bhembe and Another v Industrial Development Incorporation Of South Africa (17815/2020) [2023] ZAGPJHC 223 (22 February 2023)

The court found that both practice directives 9.20(1) and 9.14(1) require a plaintiff to serve a notice of set down on the defendant if more than six months has elapsed since service of summons, regardless of whether the defendant has entered an appearance to defend. The respondent failed to comply with this requirement when applying for default judgment more than six months after service of summons. This constituted a procedural irregularity, rendering the default judgment erroneously sought and granted. Following Supreme Court of Appeal authority, the existence of this procedural irregularity alone justified rescission under Rule 42(1)(a), and it was unnecessary for the applicants to...

Citation
[2023] ZAGPJHC 223
Parties
Applicant: Samuel Bhembe; Applicant: Sakhile Masuku; Respondent: Industrial Development Incorporation Of South Africa
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 February 2023
Case Number
17815/2020
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment Under Uniform Rule 42(1)(a)
Outcome
Application for rescission granted; default judgment rescinded.
Judges
Hopkins AJ
Legal Topics
Default Judgment, Rescission of Judgment, Practice Directives, Procedural Irregularity, Notice of Set Down
Civil Procedure Default Judgment Rescission of Judgment Practice Directives Procedural Irregularity Notice of Set Down

Case Brief

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Parties

Samuel Bhembe

Applicant

Sakhile Masuku

Applicant

Industrial Development Incorporation Of South Africa

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment Under Uniform Rule 42(1)(a)

Legal Issues

  1. 1 Whether the default judgment granted against the applicants was erroneously sought or granted due to procedural irregularity.
  2. 2 Whether the respondent was obliged to serve a notice of set down on the applicants in terms of practice directives 9.20(1) and 9.14(1).
  3. 3 Whether the procedural irregularity renders it unnecessary for the applicants to show good cause for rescission.

Ratio Decidendi

The court found that both practice directives 9.20(1) and 9.14(1) require a plaintiff to serve a notice of set down on the defendant if more than six months has elapsed since service of summons, regardless of whether the defendant has entered an appearance to defend. The respondent failed to comply with this requirement when applying for default judgment more than six months after service of summons. This constituted a procedural irregularity, rendering the default judgment erroneously sought and granted. Following Supreme Court of Appeal authority, the existence of this procedural irregularity alone justified rescission under Rule 42(1)(a), and it was unnecessary for the applicants to...

Court Disposition

Application for rescission granted; default judgment rescinded.

Orders

  • The default judgment granted against the applicants on 1 April 2021 under Case No. 17815/2020 is rescinded.
  • The respondent is ordered to pay the costs of the application.