Chikane and Another v Redefine Retail (Pty) Limited (12437/2019) [2024] ZAGPJHC 431 (2 May 2024)

Chikane and Another v Redefine Retail (Pty) Limited (12437/2019) [2024] ZAGPJHC 431 (2 May 2024)

The court found that the applicants were not absent in the sense required by rule 42(1)(a), as they had notice of the application and elected not to attend or oppose. The alleged errors raised by the applicants, including the absence of a damages affidavit and founding affidavit, were not substantiated and did not constitute errors cognisable under rule 42(1)(a). The applicants failed to provide a reasonable explanation for their default or demonstrate a bona fide defence to the dismissal application. The court exercised its discretion against rescission under both rule 42(1)(a) and common law, finding no judicial basis to grant the relief sought.

Citation
[2024] ZAGPJHC 431
Parties
Applicant: Kgotso Chikane; Applicant: Vanity Consulting (Pty) Ltd; Respondent: Redefine Retail (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 May 2024
Case Number
12437/2019
Procedural Posture
Urgent Application / Application for Rescission of Judgment
Outcome
Application for rescission dismissed with costs on an attorney-and-client scale.
Judges
Meiring
Legal Topics
Rescission of Judgment, Default Judgment, Notice of Set Down, Lease Agreement, Suretyship
Civil Procedure Land and Property Rescission of Judgment Default Judgment Notice of Set Down Lease Agreement Suretyship

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Parties

Kgotso Chikane

Applicant

Vanity Consulting (Pty) Ltd

Applicant

Redefine Retail (Pty) Limited

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Judgment

Legal Issues

  1. 1 Whether the order granted on 31 October 2022 should be rescinded under rule 42(1)(a) or at common law.
  2. 2 Whether the applicants were absent from the proceedings in the sense required by rule 42(1)(a).
  3. 3 Whether any error occurred in the granting of the default judgment.

Ratio Decidendi

The court found that the applicants were not absent in the sense required by rule 42(1)(a), as they had notice of the application and elected not to attend or oppose. The alleged errors raised by the applicants, including the absence of a damages affidavit and founding affidavit, were not substantiated and did not constitute errors cognisable under rule 42(1)(a). The applicants failed to provide a reasonable explanation for their default or demonstrate a bona fide defence to the dismissal application. The court exercised its discretion against rescission under both rule 42(1)(a) and common law, finding no judicial basis to grant the relief sought.

Court Disposition

Application for rescission dismissed with costs on an attorney-and-client scale.

Orders

  • The application is dismissed.
  • The applicants are to pay the costs of this application, on the attorney-and-client scale, jointly and severally, the one paying, the other to be absolved, including the costs of counsel.