Du Plessis and Another v Changing Tides 14 (Edms) Bpk NO and Another [2010] ZAFSHC 21 (18 February 2010)

Du Plessis and Another v Changing Tides 14 (Edms) Bpk NO and Another [2010] ZAFSHC 21 (18 February 2010)

The court found that the arrear amount which formed the basis of the respondent's cause of action was fully settled by the applicants in July 2007, and the respondent accepted further payments for several months thereafter. This conduct amounted to a waiver of the respondent's right to enforce the acceleration clause based on the original summons. The default judgment was therefore erroneously sought and granted. The court also found that the applicants' failure to file the application timeously was satisfactorily explained, as they were unaware of the service due to no longer residing at the address used for service. Accordingly, condonation was granted, and the default judgment was set...

Citation
[2010] ZAFSHC 21
Parties
Applicant: Jan-Nel Du Plessis; Applicant: Christina Magdalena Du Plessis; Respondent: Changing Tides 14 (Edms) Bpk N.O.; Respondent: Die Balju van die Hooggeregshof
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 February 2010
Case Number
4511/09
Procedural Posture
Urgent Application / Application for Rescission of Default Judgment and Condonation
Outcome
Application granted: condonation for late filing, rescission of default judgment, and leave to defend granted; costs reserved.
Judges
S.P.B. Hancke, R
Legal Topics
Rescission of Default Judgment, Condonation, National Credit Act Compliance, Acceleration Clause, Service of Process
Civil Procedure Banking and Finance Rescission of Default Judgment Condonation National Credit Act Compliance Acceleration Clause Service of Process

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Parties

Jan-Nel Du Plessis

Applicant

Christina Magdalena Du Plessis

Applicant

Changing Tides 14 (Edms) Bpk N.O.

Respondent

Die Balju van die Hooggeregshof

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Default Judgment and Condonation

Legal Issues

  1. 1 Whether the default judgment granted under case number 2149/2007 should be rescinded.
  2. 2 Whether condonation for the late filing of the application should be granted.
  3. 3 Whether the respondent waived its right to enforce the acceleration clause after accepting payments.

Ratio Decidendi

The court found that the arrear amount which formed the basis of the respondent's cause of action was fully settled by the applicants in July 2007, and the respondent accepted further payments for several months thereafter. This conduct amounted to a waiver of the respondent's right to enforce the acceleration clause based on the original summons. The default judgment was therefore erroneously sought and granted. The court also found that the applicants' failure to file the application timeously was satisfactorily explained, as they were unaware of the service due to no longer residing at the address used for service. Accordingly, condonation was granted, and the default judgment was set...

Court Disposition

Application granted: condonation for late filing, rescission of default judgment, and leave to defend granted; costs reserved.

Orders

  • Condonation for the late filing of the application is granted.
  • The default judgment under case number 2149/2007 is set aside.