IDL Transport CC t/a Old Fashioned Fish and Chips and Others v Soleprops 39 (Pty) Ltd (38854/2013) [2018] ZAGPPHC 771 (13 February 2018)

IDL Transport CC t/a Old Fashioned Fish and Chips and Others v Soleprops 39 (Pty) Ltd (38854/2013) [2018] ZAGPPHC 771 (13 February 2018)

The applicants failed to show good cause for rescission of the default judgment. Although they claimed to have misunderstood the trial date, they did not disclose that the corrected notice of set down for 4 June 2015 was served on them personally. Their failure to file a replying affidavit left the respondent's averments unchallenged. The lease agreement placed responsibility for maintenance and repair of the interior, including the ceiling, on the applicants. The only cause advanced for the inability to trade was the collapsed ceiling, which was attributed to the applicants' contractors. Clause 17(c) of the lease provided for remission of rent, not cancellation, in the event of partial...

Citation
[2018] ZAGPPHC 771
Parties
Applicant: IDL Transport CC t/a Old Fashioned Fish and Chips; Applicant: Rose Thoko Mahlangu; Applicant: Isaac Nsebenzi Mahlangu; Respondent: Soleprops 39 (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 February 2018
Case Number
38854/2013
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs on a party and party scale.
Judges
A A Crutchfield
Legal Topics
Rescission of Judgment, Lease Agreement, Default Judgment, Good Cause Requirement, Remission of Rent
Civil Procedure Land and Property Rescission of Judgment Lease Agreement Default Judgment Good Cause Requirement Remission of Rent

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Parties

IDL Transport CC t/a Old Fashioned Fish and Chips

Applicant

Rose Thoko Mahlangu

Applicant

Isaac Nsebenzi Mahlangu

Applicant

Soleprops 39 (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment.
  2. 2 Whether the applicants were in wilful default in failing to attend court on the correct date.
  3. 3 Whether the applicants have a bona fide defence to the respondent's claim under the lease agreement.

Ratio Decidendi

The applicants failed to show good cause for rescission of the default judgment. Although they claimed to have misunderstood the trial date, they did not disclose that the corrected notice of set down for 4 June 2015 was served on them personally. Their failure to file a replying affidavit left the respondent's averments unchallenged. The lease agreement placed responsibility for maintenance and repair of the interior, including the ceiling, on the applicants. The only cause advanced for the inability to trade was the collapsed ceiling, which was attributed to the applicants' contractors. Clause 17(c) of the lease provided for remission of rent, not cancellation, in the event of partial...

Court Disposition

Application for rescission dismissed with costs on a party and party scale.

Orders

  • The application for rescission is dismissed.
  • Costs are awarded against the applicants on a party and party scale.