ESDA Properties (Pty) Ltd v Scarterfield Game Ranch CC (703/2020) [2022] ZAECMKHC 94 (8 November 2022)

ESDA Properties (Pty) Ltd v Scarterfield Game Ranch CC (703/2020) [2022] ZAECMKHC 94 (8 November 2022)

The court found that although the applicant deliberately chose not to attend the trial, the affidavits established that the applicant did not subjectively appreciate the legal consequences of its default, believing that judgment would not be granted in its absence due to the defences raised. This constituted a reasonable and acceptable explanation for the default. Regarding the bona fide defence requirement, the court held that while the statutory compliance and fencing issues did not demonstrate prospects of success, the defence relating to the game count and the numbers listed in Annexure A1 was sufficient to meet the prima facie threshold. Accordingly, the applicant satisfied both legs...

Citation
[2022] ZAECMKHC 94
Parties
Applicant: ESDA Properties (Pty) Ltd; Respondent: Scarterfield Game Ranch CC
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
8 November 2022
Case Number
703/2020
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment set aside; costs awarded against applicant.
Judges
M.J. Lowe
Legal Topics
Rescission of Judgment, Default Judgment, Bona Fide Defence, Voetstoots Clause, Sale of Land, Statutory Compliance
Civil Procedure Land and Property Rescission of Judgment Default Judgment Bona Fide Defence Voetstoots Clause Sale of Land Statutory Compliance

Case Brief

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Parties

ESDA Properties (Pty) Ltd

Applicant

Scarterfield Game Ranch CC

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant has provided a reasonable and acceptable explanation for its default of appearance.
  2. 2 Whether the applicant has shown the existence of a bona fide defence with some prospect of success.
  3. 3 Whether the requirements for rescission under common law and/or Uniform Rule 42(1)(a) have been met.

Ratio Decidendi

The court found that although the applicant deliberately chose not to attend the trial, the affidavits established that the applicant did not subjectively appreciate the legal consequences of its default, believing that judgment would not be granted in its absence due to the defences raised. This constituted a reasonable and acceptable explanation for the default. Regarding the bona fide defence requirement, the court held that while the statutory compliance and fencing issues did not demonstrate prospects of success, the defence relating to the game count and the numbers listed in Annexure A1 was sufficient to meet the prima facie threshold. Accordingly, the applicant satisfied both legs...

Court Disposition

Application for rescission granted; default judgment set aside; costs awarded against applicant.

Orders

  • The judgment and court order granted by Lowe J on 22 November 2021 under case number 703/2020 is rescinded and set aside.
  • The applicant is to pay the respondent’s costs in respect of the rescission application and those wasted in respect of the default judgment proceedings.