Goldberg and Another v Heyns (9421/2014) [2019] ZAGPJHC 234 (24 July 2019)

Goldberg and Another v Heyns (9421/2014) [2019] ZAGPJHC 234 (24 July 2019)

The appeal was upheld because the appellants provided a satisfactory explanation for their default, which was not wilful but resulted from an error by their attorney. The court found that the appellants had bona fide defences, including prescription and lack of ownership by the respondent, which raised triable issues. The absence of confirmatory affidavits was not fatal in the circumstances, as the defences had been ventilated in prior proceedings. The delay did not prejudice the respondent in a manner that could not be remedied by a costs order. The court exercised its discretion to grant condonation and set aside the default judgment and dismissal of the appellants' counterclaims.

Citation
[2019] ZAGPJHC 234
Parties
Appellant: Israel Goldberg; Appellant: Rhoda Heyns; Respondent: Hilary Rynette Heyns
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 July 2019
Case Number
9421/2014
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Rescission Application and Default Judgment in Magistrates Court
Outcome
Appeal upheld; default judgment and dismissal of counterclaims set aside.
Judges
Matsemela, Opperman
Legal Topics
Condonation, Rescission of Judgment, Prescription, Default Judgment, Discovery, Magistrates Court Rules
Civil Procedure Land and Property Condonation Rescission of Judgment Prescription Default Judgment Discovery Magistrates Court Rules

Case Brief

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Parties

Israel Goldberg

Appellant

Rhoda Heyns

Appellant

Hilary Rynette Heyns

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Rescission Application and Default Judgment in Magistrates Court

Legal Issues

  1. 1 Whether the appellants should have applied for extension of time under Rule 60(5).
  2. 2 Whether the appellants furnished a sufficient explanation for the late filing of the second rescission application.
  3. 3 Whether confirmatory affidavits were required to support the founding affidavit in the second rescission application.

Ratio Decidendi

The appeal was upheld because the appellants provided a satisfactory explanation for their default, which was not wilful but resulted from an error by their attorney. The court found that the appellants had bona fide defences, including prescription and lack of ownership by the respondent, which raised triable issues. The absence of confirmatory affidavits was not fatal in the circumstances, as the defences had been ventilated in prior proceedings. The delay did not prejudice the respondent in a manner that could not be remedied by a costs order. The court exercised its discretion to grant condonation and set aside the default judgment and dismissal of the appellants' counterclaims.

Court Disposition

Appeal upheld; default judgment and dismissal of counterclaims set aside.

Orders

  • The appeal is upheld.
  • The order of the court a quo dismissing the appellants' defences and counterclaims and granting judgment against them in favour of the respondent in the amount of R125 556.16 together with interest and costs is set aside.