Indigold Cellular CC and Others v Forum 1 & 2 Panorama Offices Estate (Pty) Ltd (72355/2009) [2014] ZAGPPHC 469 (13 June 2014)

Indigold Cellular CC and Others v Forum 1 & 2 Panorama Offices Estate (Pty) Ltd (72355/2009) [2014] ZAGPPHC 469 (13 June 2014)

The court found that the applicants provided a reasonable explanation for their default, as they believed the liquidator would represent them and did not understand the complexities of sequestration and liquidation procedures. The applicants established a bona fide defence by asserting that an oral agreement existed prior to the written lease, which, if rectified, would affect their liability. The court accepted that the applicants, as sureties, could rely on defences available to the principal debtor. The application was found to be bona fide and not intended to delay proceedings. The court exercised its discretion in favour of the applicants and granted rescission of the judgment.

Citation
[2014] ZAGPPHC 469
Parties
Applicant: Indigold Cellular CC; Applicant: Taryn Chantal Pillay; Applicant: Joshie Pillay; Applicant: Vispanathan Krishna Pillay; Applicant: Vinoshini Pillay; Respondent: Forum 1 & 2 Panorama Offices Estate (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 June 2014
Case Number
72355/2009
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; judgment against the 2nd to 5th applicants rescinded.
Judges
E.M. Kubushi
Legal Topics
Rescission of Judgment, Lease Agreement, Suretyship, Rectification of Contract
Civil Procedure Commercial and Corporate Rescission of Judgment Lease Agreement Suretyship Rectification of Contract

Case Brief

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Parties

Indigold Cellular CC

Applicant

Taryn Chantal Pillay

Applicant

Joshie Pillay

Applicant

Vispanathan Krishna Pillay

Applicant

Vinoshini Pillay

Applicant

Forum 1 & 2 Panorama Offices Estate (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have provided a reasonable explanation for their default.
  2. 2 Whether the applicants have established a bona fide defence to the respondent's claim.
  3. 3 Whether the application for rescission is bona fide and not intended to delay proceedings.

Ratio Decidendi

The court found that the applicants provided a reasonable explanation for their default, as they believed the liquidator would represent them and did not understand the complexities of sequestration and liquidation procedures. The applicants established a bona fide defence by asserting that an oral agreement existed prior to the written lease, which, if rectified, would affect their liability. The court accepted that the applicants, as sureties, could rely on defences available to the principal debtor. The application was found to be bona fide and not intended to delay proceedings. The court exercised its discretion in favour of the applicants and granted rescission of the judgment.

Court Disposition

Application for rescission granted; judgment against the 2nd to 5th applicants rescinded.

Orders

  • Judgment granted against the 2nd to 5th applicants under case number 72355/2009 on 15 October 2013 is rescinded.
  • Each party to pay own costs.