Jacobs v Maritz and Others; Maritz and Others v Jacobs (4525/2008) [2009] ZAFSHC 15 (12 February 2009)

Jacobs v Maritz and Others; Maritz and Others v Jacobs (4525/2008) [2009] ZAFSHC 15 (12 February 2009)

The court found that the applicant's plea was delivered to the respondents' attorney on the last day for delivery, and although it was filed with the registrar one day late, the circumstances justified condonation and the lifting of the bar. Both parties' attorneys made errors, but the applicant demonstrated a bona fide intention to defend and disclosed a defence in the incorporated plea. The court held that it would be senseless to set aside the judgment without also lifting the bar and condoning the late filing, as this would necessitate a separate application. The applicant was not at fault for the confusion, and the interests of justice required that he be allowed to defend the claim....

Citation
[2009] ZAFSHC 15
Parties
Applicant: Marius Jacobs; Respondent: Johan Frederick Maritz; Respondent: Maria Susanna Maritz; Respondent: Anna Hendrina Myburgh
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 February 2009
Case Number
4525/2008
Procedural Posture
Urgent Application / Application to Set Aside Default Judgment
Outcome
Default judgment set aside; applicant's plea deemed timeously filed; bar lifted; no order as to costs.
Judges
Kruger, R
Legal Topics
Default Judgment, Condonation, Setting Aside Judgment, Pleadings, Court Rules
Civil Procedure Default Judgment Condonation Setting Aside Judgment Pleadings Court Rules

Case Brief

Summary, issues, holding and outcome

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Parties

Marius Jacobs

Applicant

Johan Frederick Maritz

Respondent

Maria Susanna Maritz

Respondent

Anna Hendrina Myburgh

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 6 November 2008 should be set aside.
  2. 2 Whether the applicant's plea was properly and timeously delivered and filed.
  3. 3 Whether the applicant has shown good cause for condonation and the lifting of bar.

Ratio Decidendi

The court found that the applicant's plea was delivered to the respondents' attorney on the last day for delivery, and although it was filed with the registrar one day late, the circumstances justified condonation and the lifting of the bar. Both parties' attorneys made errors, but the applicant demonstrated a bona fide intention to defend and disclosed a defence in the incorporated plea. The court held that it would be senseless to set aside the judgment without also lifting the bar and condoning the late filing, as this would necessitate a separate application. The applicant was not at fault for the confusion, and the interests of justice required that he be allowed to defend the claim....

Court Disposition

Default judgment set aside; applicant's plea deemed timeously filed; bar lifted; no order as to costs.

Orders

  • The default judgment granted against the applicant on 6 November 2008 is set aside.
  • The applicant's plea delivered to the respondents' attorney on 7 October 2008 and filed with the registrar on 8 October 2008 is deemed to have been filed timeously, and the bar in respect thereof is lifted.