IHC Building Supplies (Pty) Ltd and Another v Moyake Trading CC and Others; Moyake Trading CC v IHC Building Supplies (Pty) Ltd and Others (1037/2012, 1037/2012) [2012] ZAFSHC 200 (1 November 2012)

IHC Building Supplies (Pty) Ltd and Another v Moyake Trading CC and Others; Moyake Trading CC v IHC Building Supplies (Pty) Ltd and Others (1037/2012, 1037/2012) [2012] ZAFSHC 200 (1 November 2012)

The court found that the applicants were not in wilful default, as they took steps to address the proceedings and did not ignore the matter. The applicants provided a reasonable explanation for their default, having misunderstood the nature of the relief sought and believing their obligation was limited to supply of materials. The written agreement contained a non-variation clause, and the applicants presented a bona fide defence with prospects of success. The court exercised its discretion, considering all relevant circumstances, and concluded that sufficient cause existed to rescind the default judgment. The application for rescission was granted, with leave for the applicants to file...

Citation
[2012] ZAFSHC 200
Parties
Applicant: IHC Building Supplies (Pty) Ltd; Applicant: Morne Ernst; Respondent: Moyake Trading CC; Respondent: Sherill Loser N.O.; Respondent: Mmahlajwane Maria Chaka N.O.; Respondent: The MEC: Department of Co-operative Governance, Traditional Affairs and Human Settlements, Free State Provincial Government
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
1 November 2012
Case Number
1037/2012
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment rescinded; leave granted for further affidavits; costs in the cause.
Judges
S. J. Thamage
Legal Topics
Rescission of Judgment, Wilful Default, Bona Fide Defence, Non Variation Clause, Parole Evidence Rule
Civil Procedure Commercial and Corporate Rescission of Judgment Wilful Default Bona Fide Defence Non Variation Clause Parole Evidence Rule

Case Brief

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Parties

IHC Building Supplies (Pty) Ltd

Applicant

Morne Ernst

Applicant

Moyake Trading CC

Respondent

Sherill Loser N.O.

Respondent

Mmahlajwane Maria Chaka N.O.

Respondent

The MEC: Department of Co-operative Governance, Traditional Affairs and Human Settlements, Free State Provincial Government

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether sufficient cause exists to rescind the default judgment granted on 26 April 2012.
  2. 2 Whether the applicants were in wilful default when judgment was granted in their absence.
  3. 3 Whether the applicants have a bona fide defence with prospects of success based on the written agreement and non-variation clause.

Ratio Decidendi

The court found that the applicants were not in wilful default, as they took steps to address the proceedings and did not ignore the matter. The applicants provided a reasonable explanation for their default, having misunderstood the nature of the relief sought and believing their obligation was limited to supply of materials. The written agreement contained a non-variation clause, and the applicants presented a bona fide defence with prospects of success. The court exercised its discretion, considering all relevant circumstances, and concluded that sufficient cause existed to rescind the default judgment. The application for rescission was granted, with leave for the applicants to file...

Court Disposition

Application for rescission granted; default judgment rescinded; leave granted for further affidavits; costs in the cause.

Orders

  • The judgment granted against the applicant on 26 April 2012 is rescinded.
  • Leave is granted to the first applicant to file an opposing affidavit within 15 days from the date of this judgment.