De wet v South African Securitization Programme (RF) Limited and Another (25162/2015) [2016] ZAGPJHC 260 (22 September 2016)

De wet v South African Securitization Programme (RF) Limited and Another (25162/2015) [2016] ZAGPJHC 260 (22 September 2016)

The court found that the applicant had successfully rebutted the prima facie evidence of service provided by the sheriff's return. The applicant demonstrated that there was no gate at his premises for the summons to be affixed and provided an extract from the estate's entrance logbook showing no entry by the deputy sheriff at the relevant time. The first respondent failed to provide any affidavit from the deputy sheriff to contest these facts. In the absence of proper service, the default judgment was erroneously granted and is null and void ab initio. The requirements of Rule 42(1)(a) were satisfied, entitling the applicant to rescission of the judgment.

Citation
[2016] ZAGPJHC 260
Parties
Applicant: Dirk Jacobus Riekert De Wet; Respondent: South African Securitization Programme (RF) Limited; Respondent: The Sheriff, Boksburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 September 2016
Case Number
25162/2015
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment set aside.
Judges
C J Collis
Legal Topics
Rescission of Judgment, Service of Process, Uniform Rules of Court, Default Judgment
Civil Procedure Rescission of Judgment Service of Process Uniform Rules of Court Default Judgment

Case Brief

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Parties

Dirk Jacobus Riekert De Wet

Applicant

South African Securitization Programme (RF) Limited

Respondent

The Sheriff, Boksburg

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously granted in the absence of proper service of summons on the applicant.
  2. 2 Whether the requirements of Uniform Rule 42(1)(a) for rescission of judgment were satisfied.

Ratio Decidendi

The court found that the applicant had successfully rebutted the prima facie evidence of service provided by the sheriff's return. The applicant demonstrated that there was no gate at his premises for the summons to be affixed and provided an extract from the estate's entrance logbook showing no entry by the deputy sheriff at the relevant time. The first respondent failed to provide any affidavit from the deputy sheriff to contest these facts. In the absence of proper service, the default judgment was erroneously granted and is null and void ab initio. The requirements of Rule 42(1)(a) were satisfied, entitling the applicant to rescission of the judgment.

Court Disposition

Application for rescission granted; default judgment set aside.

Orders

  • The default judgment granted against the applicant on 24 November 2015 is rescinded.
  • The first respondent is ordered to pay the costs of this application on the scale of attorney and own client.