Ebundu (Pty) Ltd v Blake and Others (2135/2021) [2024] ZAMPMBHC 11; 2024 (5) SA 197 (MM) (16 February 2024)

Ebundu (Pty) Ltd v Blake and Others (2135/2021) [2024] ZAMPMBHC 11; 2024 (5) SA 197 (MM) (16 February 2024)

The court held that the applicant, having received proper notice of taxation and electing not to oppose or attend, forfeited its entitlement to challenge the Taxing Master's allocatur by way of review under Rule 53 or common law. The appropriate remedy for a party in default of appearance is to seek rescission or setting aside of the taxation, provided good cause and a bona fide defence are shown. The applicant failed to explain its default and did not demonstrate bona fide grounds for setting aside. The authorities relied upon do not support the use of Rule 53 in circumstances where a party received notice and consciously chose not to participate. Allowing such a review would undermine...

Citation
[2024] ZAMPMBHC 11
Parties
Applicant: Ebundu (Pty) Ltd; Respondent: Wayne Michael Blake; Respondent: The Sheriff of the High Court: White River; Respondent: The Taxing Master: High Court of South Africa Mpumalanga Division; Respondent: WDT Inc Attorneys
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
16 February 2024
Case Number
2135/2021
Procedural Posture
Review Application / Application for Review and Setting Aside of Taxation and Writ of Execution
Outcome
Application dismissed with costs.
Judges
Greyling-Coetzer AJ
Legal Topics
Taxation of Costs, Review of Taxing Master, Uniform Rules of Court, Default of Appearance, Writ of Execution
Civil Procedure Taxation of Costs Review of Taxing Master Uniform Rules of Court Default of Appearance Writ of Execution

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Ebundu (Pty) Ltd

Applicant

Wayne Michael Blake

Respondent

The Sheriff of the High Court: White River

Respondent

The Taxing Master: High Court of South Africa Mpumalanga Division

Respondent

WDT Inc Attorneys

Respondent

Procedural Posture

Review Application / Application for Review and Setting Aside of Taxation and Writ of Execution

Legal Issues

  1. 1 Whether a party who received notice of taxation and failed to oppose or object is entitled to seek review in terms of Rule 53 and common law.
  2. 2 Whether the applicant issued the review application without unreasonable delay.
  3. 3 Whether any delay in instituting the application should be overlooked.

Ratio Decidendi

The court held that the applicant, having received proper notice of taxation and electing not to oppose or attend, forfeited its entitlement to challenge the Taxing Master's allocatur by way of review under Rule 53 or common law. The appropriate remedy for a party in default of appearance is to seek rescission or setting aside of the taxation, provided good cause and a bona fide defence are shown. The applicant failed to explain its default and did not demonstrate bona fide grounds for setting aside. The authorities relied upon do not support the use of Rule 53 in circumstances where a party received notice and consciously chose not to participate. Allowing such a review would undermine...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.