Hen-Boisen v Christensen N.O and Others (23644/2016) [2023] ZAGPPHC 592 (10 April 2023)

Hen-Boisen v Christensen N.O and Others (23644/2016) [2023] ZAGPPHC 592 (10 April 2023)

The court found that the default judgment was granted without a valid cause of action, as no written deed of suretyship existed and clause 9 of the lease agreement expressly required such a deed. The absence of a written suretyship meant the applicant could not be held liable under the lease, rendering the judgment erroneous for the purposes of Rule 42(1)(a). Although the application for rescission was brought almost a year after the applicant became aware of the judgment, the court exercised its discretion to grant rescission, considering the applicant's age, the fact that the property at risk was his primary residence, and the lack of prejudice to third parties. The delay was not deemed...

Citation
[2023] ZAGPPHC 592
Parties
Applicant: Vernon Hen-Boisen; Respondent: Sean Christensen N.O.; Respondent: Burgerbrug Beleggings (Pty) Ltd; Respondent: The Sheriff of the Court Pretoria East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 April 2023
Case Number
23644/2016
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment granted; default judgment and writs of execution set aside.
Judges
Janse van Nieuwenhuizen
Legal Topics
Rescission of Default Judgment, Suretyship, Lease Agreement, Rule 42 Application, Eviction Order
Civil Procedure Land and Property Rescission of Default Judgment Suretyship Lease Agreement Rule 42 Application Eviction Order

Case Brief

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Parties

Vernon Hen-Boisen

Applicant

Sean Christensen N.O.

Respondent

Burgerbrug Beleggings (Pty) Ltd

Respondent

The Sheriff of the Court Pretoria East

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 1 March 2021 should be rescinded due to lack of a written deed of suretyship.
  2. 2 Whether the application for rescission was brought within a reasonable time.
  3. 3 Whether the applicant was properly joined and whether there was any misjoinder.

Ratio Decidendi

The court found that the default judgment was granted without a valid cause of action, as no written deed of suretyship existed and clause 9 of the lease agreement expressly required such a deed. The absence of a written suretyship meant the applicant could not be held liable under the lease, rendering the judgment erroneous for the purposes of Rule 42(1)(a). Although the application for rescission was brought almost a year after the applicant became aware of the judgment, the court exercised its discretion to grant rescission, considering the applicant's age, the fact that the property at risk was his primary residence, and the lack of prejudice to third parties. The delay was not deemed...

Court Disposition

Application for rescission of default judgment granted; default judgment and writs of execution set aside.

Orders

  • The default judgment granted on 1 March 2021 is rescinded and set aside.
  • The writ of execution issued by the Registrar on 4 March 2021 is set aside.