Botha and Another v Algerdon Brokers CC (71244/2014) [2016] ZAGPPHC 51 (5 February 2016)

Botha and Another v Algerdon Brokers CC (71244/2014) [2016] ZAGPPHC 51 (5 February 2016)

The court found that, although the applicants had filed opposing papers, their absence at the hearing and failure to present argument could render the proceedings incomplete. The facts of Pitelli v Everton Gardens Projects CC were distinguished, as in that case the applicant had not filed any opposing papers. However, the court was persuaded that another court might find the order granted by Tuchten J susceptible to rescission, as it was obtained by default. Grounds relating to the content of the order were not considered, as they did not form the basis of the rescission application and relevant documents were not provided for scrutiny.

Citation
[2016] ZAGPPHC 51
Parties
Applicant: G W P Botha; Applicant: A H Venter; Respondent: Algerdon Brokers CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 February 2016
Case Number
71244/2014
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Refusal of Rescission Order
Outcome
Leave to appeal to the full court of the division is granted.
Judges
Tlhapi
Legal Topics
Rescission of Judgment, Default Judgment, Leave to Appeal, Appealability
Civil Procedure Rescission of Judgment Default Judgment Leave to Appeal Appealability

Case Brief

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Parties

G W P Botha

Applicant

A H Venter

Applicant

Algerdon Brokers CC

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Refusal of Rescission Order

Legal Issues

  1. 1 Whether the order granted by Tuchten J was susceptible to rescission as it was obtained by default.
  2. 2 Whether the absence of the applicants at the hearing rendered the proceedings incomplete.
  3. 3 Whether the order was final and appealable.

Ratio Decidendi

The court found that, although the applicants had filed opposing papers, their absence at the hearing and failure to present argument could render the proceedings incomplete. The facts of Pitelli v Everton Gardens Projects CC were distinguished, as in that case the applicant had not filed any opposing papers. However, the court was persuaded that another court might find the order granted by Tuchten J susceptible to rescission, as it was obtained by default. Grounds relating to the content of the order were not considered, as they did not form the basis of the rescission application and relevant documents were not provided for scrutiny.

Court Disposition

Leave to appeal to the full court of the division is granted.

Orders

  • Leave to appeal to the full court of this division is granted.