Fagan and Others v Business Partners Limited (2009/17752) [2015] ZAGPJHC 348 (1 December 2015)

Fagan and Others v Business Partners Limited (2009/17752) [2015] ZAGPJHC 348 (1 December 2015)

The court found that the applicants were aware of the settlement agreement and its terms, which were signed in the presence of their attorney and confirmed to be made an order of court. There was no evidence that the attorney acted without mandate or that the applicants were unaware of their rights. The clauses permitting execution against immovable property were not contrary to public policy, as such provisions are common in mortgage agreements and subject to judicial oversight. The applicants failed to establish any grounds for rescission under Rule 42(1)(a), Rule 31(2)(b), or the common law, and did not demonstrate a bona fide defence. The court distinguished the facts from Gundwana...

Citation
[2015] ZAGPJHC 348
Parties
Applicant: Kevin John Fagan; Applicant: Erna Fagan; Applicant: Choice Paints and Hardware CC; Respondent: Business Partners Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 December 2015
Case Number
2009/17752
Procedural Posture
Urgent Application / Application for Rescission of Judgment and Rule 46 Application
Outcome
Application for rescission of the order incorporating the settlement agreement is dismissed with costs.
Judges
Windell
Legal Topics
Rescission of Judgment, Settlement Agreement, Executability of Immovable Property, Public Policy, Judicial Oversight, Constitutional Right to Housing
Civil Procedure Commercial and Corporate Land and Property Rescission of Judgment Settlement Agreement Executability of Immovable Property Public Policy Judicial Oversight +1 more

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Parties

Kevin John Fagan

Applicant

Erna Fagan

Applicant

Choice Paints and Hardware CC

Applicant

Business Partners Limited

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Judgment and Rule 46 Application

Legal Issues

  1. 1 Whether the settlement agreement made an order of court should be rescinded under Rule 42(1)(a), Rule 31, or the common law.
  2. 2 Whether clauses permitting execution against immovable property without judicial oversight are contrary to public policy and section 26 of the Constitution.
  3. 3 Whether the applicants have established grounds for rescission of judgment.

Ratio Decidendi

The court found that the applicants were aware of the settlement agreement and its terms, which were signed in the presence of their attorney and confirmed to be made an order of court. There was no evidence that the attorney acted without mandate or that the applicants were unaware of their rights. The clauses permitting execution against immovable property were not contrary to public policy, as such provisions are common in mortgage agreements and subject to judicial oversight. The applicants failed to establish any grounds for rescission under Rule 42(1)(a), Rule 31(2)(b), or the common law, and did not demonstrate a bona fide defence. The court distinguished the facts from Gundwana...

Court Disposition

Application for rescission of the order incorporating the settlement agreement is dismissed with costs.

Orders

  • The application for rescission of the order of court incorporating the settlement agreement is dismissed with costs.
  • The Rule 46 application is postponed sine die with costs in favour of Business Partners Ltd.