Khan v A1 Scrap Metals CC and Others (4562/2009) [2010] ZAKZDHC 60 (19 November 2010)

Khan v A1 Scrap Metals CC and Others (4562/2009) [2010] ZAKZDHC 60 (19 November 2010)

The court found that the first and second defendants were not in wilful default when the default judgment was granted. The second defendant provided credible evidence that he was out of the country during the relevant period, and the summons was not properly served on him. The plaintiff's explanation regarding the terms of the verbal agreement was not pleaded in the papers, and the necessary amendments to the pleadings were not made. The material terms relied upon by the plaintiff were not before the court when the judgment was granted. Accordingly, the judgment was erroneously granted in the absence of the first and second defendants, and rescission was warranted.

Citation
[2010] ZAKZDHC 60
Parties
Plaintiff: Indrees Khan; Defendant: A1 Scrap Metals CC; Defendant: Jaswind Singh; Defendant: Reena Sahadew
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
19 November 2010
Case Number
4562/2009
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment granted in favour of the first and second defendants.
Judges
Hughes-Madondo
Legal Topics
Rescission of Judgment, Default Judgment, Rule 42 Supreme Court Rules, Bona Fide Defence
Civil Procedure Rescission of Judgment Default Judgment Rule 42 Supreme Court Rules Bona Fide Defence

Case Brief

Summary, issues, holding and outcome

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Parties

Indrees Khan

Plaintiff

A1 Scrap Metals CC

Defendant

Jaswind Singh

Defendant

Reena Sahadew

Defendant

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted against the first and second defendants should be rescinded.
  2. 2 Whether the defendants were in wilful default when the judgment was granted.
  3. 3 Whether the plaintiff was entitled to the relief granted based on the pleadings and evidence before the court.

Ratio Decidendi

The court found that the first and second defendants were not in wilful default when the default judgment was granted. The second defendant provided credible evidence that he was out of the country during the relevant period, and the summons was not properly served on him. The plaintiff's explanation regarding the terms of the verbal agreement was not pleaded in the papers, and the necessary amendments to the pleadings were not made. The material terms relied upon by the plaintiff were not before the court when the judgment was granted. Accordingly, the judgment was erroneously granted in the absence of the first and second defendants, and rescission was warranted.

Court Disposition

Application for rescission of default judgment granted in favour of the first and second defendants.

Orders

  • The default judgment granted against the first and second defendants on 6 May 2009 is rescinded.
  • The plaintiff is to pay the costs of this application.