Kgalemo Construction (Pty) Ltd and Others v Iliad Africa Trading (Pty) Ltd (29361/2019) [2020] ZAGPPHC 480 (4 September 2020)

Kgalemo Construction (Pty) Ltd and Others v Iliad Africa Trading (Pty) Ltd (29361/2019) [2020] ZAGPPHC 480 (4 September 2020)

Despite valid criticism of the applicants' affidavit and procedural defects, the court found that good cause was shown for rescission of the default judgment. The sheriff's returns indicated that the applicants were unknown at the address where service was effected, and the respondent was aware of the applicants' changed address. The respondent's failure to make further inquiries regarding the applicants' whereabouts and the service of the s129 notice at the amended address warranted censure. The court exercised its discretion to set aside the default judgment, granted condonation for late filing, and ordered the applicants to pay the wasted costs of the hearing on 4 May 2020 as well as...

Citation
[2020] ZAGPPHC 480
Parties
Applicant: Kgalemo Construction (Pty) Ltd; Applicant: Semeenee Wilhelmina Aphane; Applicant: Lehumo Makgalemele Aphane; Respondent: Iliad Africa Trading (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 September 2020
Case Number
29361/2019
Procedural Posture
Rescission Application / Judgment on Rescission and Costs
Outcome
Rescission of default judgment granted; applicants to pay wasted costs and costs of application.
Judges
Fabricius
Legal Topics
Rescission of Default Judgment, Condonation for Late Filing, Service of Process, Costs Award
Civil Procedure Rescission of Default Judgment Condonation for Late Filing Service of Process Costs Award

Case Brief

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Parties

Kgalemo Construction (Pty) Ltd

Applicant

Semeenee Wilhelmina Aphane

Applicant

Lehumo Makgalemele Aphane

Applicant

Iliad Africa Trading (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Judgment on Rescission and Costs

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment.
  2. 2 Whether condonation for late filing of the rescission application should be granted.
  3. 3 Whether service of summons at the chosen domicilium was proper given the sheriff's returns.

Ratio Decidendi

Despite valid criticism of the applicants' affidavit and procedural defects, the court found that good cause was shown for rescission of the default judgment. The sheriff's returns indicated that the applicants were unknown at the address where service was effected, and the respondent was aware of the applicants' changed address. The respondent's failure to make further inquiries regarding the applicants' whereabouts and the service of the s129 notice at the amended address warranted censure. The court exercised its discretion to set aside the default judgment, granted condonation for late filing, and ordered the applicants to pay the wasted costs of the hearing on 4 May 2020 as well as...

Court Disposition

Rescission of default judgment granted; applicants to pay wasted costs and costs of application.

Orders

  • Applicants are to pay the wasted costs of 4 May 2020 jointly and severally, the one paying the others to be absolved.
  • The default judgment granted against the applicants on 18 June 2019 is set aside.