Du Preez and Others v Van der Berg and Others; Van der Berg and Others v Du Preez and Others (794/2012, 2326/2009) [2012] ZAFSHC 189 (11 October 2012)

Du Preez and Others v Van der Berg and Others; Van der Berg and Others v Du Preez and Others (794/2012, 2326/2009) [2012] ZAFSHC 189 (11 October 2012)

The court found that the applicants failed to provide a reasonable explanation for their default and did not act bona fide. Their shifting defences and repeated applications only when threatened with execution indicated an intention to delay the respondents' claim rather than to genuinely contest the order. The defence based on the National Credit Act was irrelevant, as the declaration of alter ego was to facilitate payment and did not engage the Act. The applicants' conduct demonstrated an attempt to evade payment, and at the time the order was made, they had no bona fide defence. Consequently, the application for rescission was dismissed with costs on an attorney and client scale.

Citation
[2012] ZAFSHC 189
Parties
Applicant: Phillip Barthelomeus Du Preez; Applicant: H I Du Preez h/a Ducon; Applicant: Phillip Barthelomeus Du Preez N.O.; Respondent: P C W Van der Berg; Respondent: M P Trisos; Respondent: M C Van der Burgh; Respondent: J M Hanekom; Respondent: B G Cantor N.O.; Respondent: C Gerber N.O.; Respondent: Ad Hoc Balju of the High Court, Bloemfontein-East
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 October 2012
Case Number
794/2012, 2326/2009
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Order
Outcome
Application dismissed with costs on an attorney and client scale.
Judges
J J Mhlambi
Legal Topics
Rescission of Judgment, Condonation, National Credit Act, Alter Ego Liability
Civil Procedure Commercial and Corporate Rescission of Judgment Condonation National Credit Act Alter Ego Liability

Case Brief

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Parties

Phillip Barthelomeus Du Preez

Applicant

H I Du Preez h/a Ducon

Applicant

Phillip Barthelomeus Du Preez N.O.

Applicant

P C W Van der Berg

Respondent

M P Trisos

Respondent

M C Van der Burgh

Respondent

J M Hanekom

Respondent

B G Cantor N.O.

Respondent

C Gerber N.O.

Respondent

Ad Hoc Balju of the High Court, Bloemfontein-East

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Order

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the rescission application.
  2. 2 Whether the order granted on 9 July 2009 should be rescinded.
  3. 3 Whether the applicants have shown a bona fide defence to the respondents' claim.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable explanation for their default and did not act bona fide. Their shifting defences and repeated applications only when threatened with execution indicated an intention to delay the respondents' claim rather than to genuinely contest the order. The defence based on the National Credit Act was irrelevant, as the declaration of alter ego was to facilitate payment and did not engage the Act. The applicants' conduct demonstrated an attempt to evade payment, and at the time the order was made, they had no bona fide defence. Consequently, the application for rescission was dismissed with costs on an attorney and client scale.

Court Disposition

Application dismissed with costs on an attorney and client scale.

Orders

  • The application for rescission is dismissed.
  • Applicants are ordered to pay costs on an attorney and client scale, jointly and severally, the one paying the other to be absolved.