Kagisano-Molopo Local Municipality v Silvex 259 CC (1896/16) [2018] ZANWHC 4 (25 January 2018)

Kagisano-Molopo Local Municipality v Silvex 259 CC (1896/16) [2018] ZANWHC 4 (25 January 2018)

The court found that the plaintiff misrepresented the existence of a written addendum in its particulars of claim, attaching only emails that did not constitute a signed addendum. In the answering affidavit, the plaintiff referred to a verbal agreement, contradicting its pleadings. This misrepresentation led to the default judgment being erroneously granted. The requirements of Rule 42(1)(a) were satisfied: the judgment was erroneously sought and granted in the absence of the applicant, and the applicant's rights were affected. The court held that rescission should be granted under Rule 42(1)(a), not Rule 31(2), as the judgment was based on an error apparent from the record.

Citation
[2018] ZANWHC 4
Parties
Applicant: Kagisano-Molopo Local Municipality; Respondent: Silvex 259 CC
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
25 January 2018
Case Number
1896/16
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of the default judgment granted on 2 February 2017 is granted.
Judges
DJAJE
Legal Topics
Rescission of Judgment, Default Judgment, Rule 42 Uniform Rules, Contract Variation, Misrepresentation
Civil Procedure Commercial and Corporate Rescission of Judgment Default Judgment Rule 42 Uniform Rules Contract Variation Misrepresentation

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Parties

Kagisano-Molopo Local Municipality

Applicant

Silvex 259 CC

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 2 February 2017 should be rescinded under Rule 42(1)(a) of the Uniform Rules of Court.
  2. 2 Whether the judgment was erroneously sought or granted in the absence of the defendant.
  3. 3 Whether the plaintiff misrepresented the existence of a written addendum to the contract.

Ratio Decidendi

The court found that the plaintiff misrepresented the existence of a written addendum in its particulars of claim, attaching only emails that did not constitute a signed addendum. In the answering affidavit, the plaintiff referred to a verbal agreement, contradicting its pleadings. This misrepresentation led to the default judgment being erroneously granted. The requirements of Rule 42(1)(a) were satisfied: the judgment was erroneously sought and granted in the absence of the applicant, and the applicant's rights were affected. The court held that rescission should be granted under Rule 42(1)(a), not Rule 31(2), as the judgment was based on an error apparent from the record.

Court Disposition

Application for rescission of the default judgment granted on 2 February 2017 is granted.

Orders

  • Application for rescission of the default judgment granted on 2 February 2017 is granted.
  • Costs of the application are reserved for determination by the trial court.