Interactive Trading 115 CC and Another v South African Securitisation Programme and Others (2119/2017) [2019] ZALMPPHC 10; 2019 (5) SA 174 (LP) (29 March 2019)

Interactive Trading 115 CC and Another v South African Securitisation Programme and Others (2119/2017) [2019] ZALMPPHC 10; 2019 (5) SA 174 (LP) (29 March 2019)

The court found that the applicants were not properly served with the summons and were unaware of the proceedings. The sheriff failed to perform his duties honestly and diligently, resulting in the return of service containing incorrect information. The absence of proper service rendered the default judgment erroneously granted in terms of Rule 42(1)(a) of the Uniform Rules. The court emphasized that no final order should be made against a party without notice, and the applicants were entitled to defend the proceedings. Consequently, the default judgment was rescinded and the applicants were granted leave to defend.

Citation
[2019] ZALMPPHC 10
Parties
Applicant: Interactive Trading 115 CC; Applicant: Barend Stephanus Schempers; Respondent: South African Securitisation Programme; Respondent: Sasfin Bank Limited; Respondent: Sunlyn (Pty) Ltd
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
29 March 2019
Case Number
2119/2017
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment granted; default judgment set aside; costs awarded against respondents.
Judges
Mangena
Legal Topics
Rescission of Judgment, Service of Process, Default Judgment, Rule 42 Uniform Rules, Return of Service
Civil Procedure Rescission of Judgment Service of Process Default Judgment Rule 42 Uniform Rules Return of Service

Case Brief

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Parties

Interactive Trading 115 CC

Applicant

Barend Stephanus Schempers

Applicant

South African Securitisation Programme

Respondent

Sasfin Bank Limited

Respondent

Sunlyn (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted against the applicants in their absence should be rescinded under Rule 42(1)(a).
  2. 2 Whether service of summons was properly effected on the applicants.
  3. 3 Whether the sheriff fulfilled his duties honestly and diligently in serving court documents.

Ratio Decidendi

The court found that the applicants were not properly served with the summons and were unaware of the proceedings. The sheriff failed to perform his duties honestly and diligently, resulting in the return of service containing incorrect information. The absence of proper service rendered the default judgment erroneously granted in terms of Rule 42(1)(a) of the Uniform Rules. The court emphasized that no final order should be made against a party without notice, and the applicants were entitled to defend the proceedings. Consequently, the default judgment was rescinded and the applicants were granted leave to defend.

Court Disposition

Application for rescission of judgment granted; default judgment set aside; costs awarded against respondents.

Orders

  • Default judgment granted on 21 December 2017 is hereby rescinded and set aside.
  • The respondents are ordered to pay the costs of the application on a party and party scale, jointly and severally, the one paying the other to be absolved.