Intratrek Properties (Pty) Ltd and Another v XTLS Investments 90 (Pty) Ltd and Another (2015/08599) [2017] ZAGPJHC 6 (1 February 2017)

Intratrek Properties (Pty) Ltd and Another v XTLS Investments 90 (Pty) Ltd and Another (2015/08599) [2017] ZAGPJHC 6 (1 February 2017)

The court found that service of the summons on the first applicant's registered address was proper and legally recognised, as confirmed by CIPC records. The applicants failed to prove that the registered address had been validly changed in accordance with statutory requirements. Since service was proper, there was no procedural irregularity in the granting of the default judgment. Consequently, the court was not empowered to set aside the judgment under Rule 42(1), and the application for rescission was refused. The court did not need to address whether a bona fide defence was required under Rule 42, as the threshold procedural irregularity was not met.

Citation
[2017] ZAGPJHC 6
Parties
Applicant: Intratrek Properties (Pty) Ltd; Applicant: Ibrahim Sildky Yusuf; Respondent: XTLS Investments 90 (Pty) Ltd; Respondent: Sheriff of the High Court, Johannesburg; Respondent: First National Bank
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 February 2017
Case Number
2015/08599
Procedural Posture
Rescission Application / Opposed Motion for Rescission of Default Judgment Under Rule 42(1)
Outcome
Application for rescission of default judgment dismissed with costs.
Judges
A A Crutchfield
Legal Topics
Rescission of Default Judgment, Service of Process, Domicilium Citandi Et Executandi, Rule 42 Uniform Rules, Company Registered Address
Civil Procedure Rescission of Default Judgment Service of Process Domicilium Citandi Et Executandi Rule 42 Uniform Rules Company Registered Address

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Parties

Intratrek Properties (Pty) Ltd

Applicant

Ibrahim Sildky Yusuf

Applicant

XTLS Investments 90 (Pty) Ltd

Respondent

Sheriff of the High Court, Johannesburg

Respondent

First National Bank

Respondent

Procedural Posture

Rescission Application / Opposed Motion for Rescission of Default Judgment Under Rule 42(1)

Legal Issues

  1. 1 Whether service of the summons at the first applicant's registered address was competent where a postal address was chosen as domicilium citandi et executandi.
  2. 2 Whether the applicants were obliged to disclose a bona fide defence in terms of Rule 42, and if so, whether such a defence was demonstrated.

Ratio Decidendi

The court found that service of the summons on the first applicant's registered address was proper and legally recognised, as confirmed by CIPC records. The applicants failed to prove that the registered address had been validly changed in accordance with statutory requirements. Since service was proper, there was no procedural irregularity in the granting of the default judgment. Consequently, the court was not empowered to set aside the judgment under Rule 42(1), and the application for rescission was refused. The court did not need to address whether a bona fide defence was required under Rule 42, as the threshold procedural irregularity was not met.

Court Disposition

Application for rescission of default judgment dismissed with costs.

Orders

  • The application is dismissed with costs.