Brown Mcfarlane Africa (Pty) Ltd v KMG Services Centres (Pty) Ltd (53881/2011) [2012] ZAGPPHC 141 (1 August 2012)

Brown Mcfarlane Africa (Pty) Ltd v KMG Services Centres (Pty) Ltd (53881/2011) [2012] ZAGPPHC 141 (1 August 2012)

The court found that although the applicant was negligent in failing to bring the rescission application timeously, the default was not wilful. The applicant provided a prima facie defence based on the fact that the interest rate awarded in the default judgment was contrary to the written agreement, which stipulated a different rate. The applicant's explanation for the default and delay was accepted as reasonable in the circumstances, and the court held that the matter should be tried on its merits. Accordingly, the rescission of the default judgment was granted and condonation for the late filing of the application was allowed.

Citation
[2012] ZAGPPHC 141
Parties
Plaintiff: Brown Mcfarlane Africa (Pty) Ltd; Defendant: KMG Services Centres (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 August 2012
Case Number
53881/2011
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment granted; condonation for late filing allowed; no order as to costs.
Judges
Pretorius
Legal Topics
Rescission of Judgment, Default Judgment, Condonation, Interest Rate Dispute
Civil Procedure Rescission of Judgment Default Judgment Condonation Interest Rate Dispute

Case Brief

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Parties

Brown Mcfarlane Africa (Pty) Ltd

Plaintiff

KMG Services Centres (Pty) Ltd

Defendant

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant provided a reasonable explanation for the default and delay in bringing the rescission application.
  2. 2 Whether the applicant's defence to the plaintiff's claim is bona fide.
  3. 3 Whether the interest awarded in the default judgment was contrary to the written agreement between the parties.

Ratio Decidendi

The court found that although the applicant was negligent in failing to bring the rescission application timeously, the default was not wilful. The applicant provided a prima facie defence based on the fact that the interest rate awarded in the default judgment was contrary to the written agreement, which stipulated a different rate. The applicant's explanation for the default and delay was accepted as reasonable in the circumstances, and the court held that the matter should be tried on its merits. Accordingly, the rescission of the default judgment was granted and condonation for the late filing of the application was allowed.

Court Disposition

Application for rescission of default judgment granted; condonation for late filing allowed; no order as to costs.

Orders

  • The late delivery of the rescission application is condoned.
  • The default judgment granted on 9 November 2011 under case number 53881/2011 is rescinded.