Heunis and Others v Benitha Veevoere (Pty) Ltd (61918/2013) [2014] ZAGPPHC 918 (7 November 2014)

Heunis and Others v Benitha Veevoere (Pty) Ltd (61918/2013) [2014] ZAGPPHC 918 (7 November 2014)

The court found that the default judgment was erroneously granted because the applicant's attorney had communicated the intention to defend to the respondent's attorney prior to the application for default judgment. The respondent's attorney's conduct created a misleading impression that default judgment would not be sought pending further communication. The failure to notify the applicant's attorney that the process would continue resulted in the applicant being taken by surprise. Had these circumstances been brought to the attention of the court or registrar, the application for default judgment would have been refused. Therefore, the judgment was erroneously granted and must be...

Citation
[2014] ZAGPPHC 918
Parties
Applicant: Leon Heunis; Applicant: L J Simpson N.O.; Applicant: C B St Clair Cooper N.O.; Applicant: Z Kajee N.O.; Respondent: Benitha Veevoere (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 November 2014
Case Number
61918/2013
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment granted.
Judges
D S Fourie
Legal Topics
Rescission of Judgment, Default Judgment, Rule 42, Rule 31, Service of Process
Civil Procedure Rescission of Judgment Default Judgment Rule 42 Rule 31 Service of Process

Case Brief

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Parties

Leon Heunis

Applicant

L J Simpson N.O.

Applicant

C B St Clair Cooper N.O.

Applicant

Z Kajee N.O.

Applicant

Benitha Veevoere (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted against the first applicant was erroneously sought or granted in terms of Rule 42(1)(a).
  2. 2 Whether the circumstances justified rescission without the need to show good cause under Rule 31(2)(b).

Ratio Decidendi

The court found that the default judgment was erroneously granted because the applicant's attorney had communicated the intention to defend to the respondent's attorney prior to the application for default judgment. The respondent's attorney's conduct created a misleading impression that default judgment would not be sought pending further communication. The failure to notify the applicant's attorney that the process would continue resulted in the applicant being taken by surprise. Had these circumstances been brought to the attention of the court or registrar, the application for default judgment would have been refused. Therefore, the judgment was erroneously granted and must be...

Court Disposition

Application for rescission of default judgment granted.

Orders

  • The default judgment granted against the first applicant in case number 61918/2013 on 21 October 2013 is rescinded.
  • Within 10 days from date hereof the first applicant shall serve and file a notice of intention to defend if he wishes to do so.