Dercksen t/a Interment Carries v Selomane (J1443/09) [2010] ZALCJHB 355 (26 March 2010)

Dercksen t/a Interment Carries v Selomane (J1443/09) [2010] ZALCJHB 355 (26 March 2010)

The court found that the applicant failed to prove that the default order was erroneously granted in his absence. The applicant's denial of receipt of the statement of claim, referral form, notice of taxation, and writ of execution was implausible, as he provided no reasonable explanation for failing to collect documents sent by registered mail or for the fax number used. The Rules authorise service by fax and registered mail, and the applicant's blanket denials were found to be fabrications. The applicant was in wilful default, not bona fide, and the court held that he was the author of his own misfortune. The application for rescission was dismissed, and costs were awarded against the...

Citation
[2010] ZALCJHB 355
Parties
Applicant: Hannes Dercksen t/a Interment Carriers; Respondent: Lesibana Annanias Selomane
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
26 March 2010
Case Number
J1443/09
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Order
Outcome
Application for rescission of the default order is dismissed. Costs awarded against the applicant on an attorney and own client scale.
Judges
Bhoola
Legal Topics
Rescission of Default Judgment, Proof of Service, Wilful Default, Unfair Dismissal, Retrenchment Procedure
Labour Law Civil Procedure Rescission of Default Judgment Proof of Service Wilful Default Unfair Dismissal Retrenchment Procedure

Case Brief

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Parties

Hannes Dercksen t/a Interment Carriers

Applicant

Lesibana Annanias Selomane

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Order

Legal Issues

  1. 1 Whether the default judgment was erroneously granted in the absence of the applicant.
  2. 2 Whether the applicant was properly notified of the proceedings and the hearing date.
  3. 3 Whether the applicant has shown good cause for rescission of the default judgment.

Ratio Decidendi

The court found that the applicant failed to prove that the default order was erroneously granted in his absence. The applicant's denial of receipt of the statement of claim, referral form, notice of taxation, and writ of execution was implausible, as he provided no reasonable explanation for failing to collect documents sent by registered mail or for the fax number used. The Rules authorise service by fax and registered mail, and the applicant's blanket denials were found to be fabrications. The applicant was in wilful default, not bona fide, and the court held that he was the author of his own misfortune. The application for rescission was dismissed, and costs were awarded against the...

Court Disposition

Application for rescission of the default order is dismissed. Costs awarded against the applicant on an attorney and own client scale.

Orders

  • The application for rescission of the order of this Court dated 29 April 2009 is dismissed.
  • The applicant is to pay the respondent's costs on a scale as between attorney and own client.