Kirsten v Strydom N.O and Others (41045/2017) [2020] ZAGPPHC 151 (14 May 2020)

Kirsten v Strydom N.O and Others (41045/2017) [2020] ZAGPPHC 151 (14 May 2020)

The court found that condonation should be granted for the late delivery of the rescission application and related affidavits, as none of the condonation applications were opposed and the reasons provided were sufficient. The use of Form 2 instead of Form 2(a) was not fatal, as proper service was effected and no prejudice was shown. Failure to serve certain defendants was not fatal, as their interests were represented by the respondents as liquidators. The applicant's explanation for default, though unsatisfactory, was not unreasonable and did not amount to wilful default. The applicant relied on her attorney and intended to defend the claim. The evidence did not establish that the...

Citation
[2020] ZAGPPHC 151
Parties
Applicant: Catherina Helena Kirsten; Respondent: Pieter Hendrik Strydom N.O.; Respondent: Deon Marais Botha N.O.; Respondent: Caroline Mmakgokolo Ledwaba N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 May 2020
Case Number
41045/2017
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Default judgment rescinded as far as it refers to the applicant; warrant of execution set aside; costs to follow the main action.
Judges
P.H. Kirstein
Legal Topics
Rescission of Judgment, Condonation, Condictio Furtiva, Default Judgment, Service of Process
Civil Procedure Land and Property Rescission of Judgment Condonation Condictio Furtiva Default Judgment Service of Process

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Parties

Catherina Helena Kirsten

Applicant

Pieter Hendrik Strydom N.O.

Respondent

Deon Marais Botha N.O.

Respondent

Caroline Mmakgokolo Ledwaba N.O.

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether condonation should be granted for the late delivery of the rescission application and affidavits.
  2. 2 Whether the use of Form 2 instead of Form 2(a) renders the application fatally defective.
  3. 3 Whether failure to serve the application on certain defendants is fatal to the application.

Ratio Decidendi

The court found that condonation should be granted for the late delivery of the rescission application and related affidavits, as none of the condonation applications were opposed and the reasons provided were sufficient. The use of Form 2 instead of Form 2(a) was not fatal, as proper service was effected and no prejudice was shown. Failure to serve certain defendants was not fatal, as their interests were represented by the respondents as liquidators. The applicant's explanation for default, though unsatisfactory, was not unreasonable and did not amount to wilful default. The applicant relied on her attorney and intended to defend the claim. The evidence did not establish that the...

Court Disposition

Default judgment rescinded as far as it refers to the applicant; warrant of execution set aside; costs to follow the main action.

Orders

  • Condonation is granted for the late delivery of the rescission application, answering affidavit, and replying affidavit.
  • The default judgment dated 28 November 2018 under Case No 41045/17 is rescinded as far as it refers to the applicant as the seventh defendant in the main action.