Le Roux v Bekker and Another (1445/2020) [2022] ZAMPMHC 21 (3 November 2022)

Le Roux v Bekker and Another (1445/2020) [2022] ZAMPMHC 21 (3 November 2022)

The court found that the default judgment was erroneously granted in the presence of the applicant, who was denied a hearing despite being physically present and having his presence made known to the court. The applicant was not afforded an opportunity to address the court, which constituted an irregularity and a violation of his constitutional right of access to courts. The applicant provided a reasonable explanation for his default, having received the application only three court days before the hearing and lacking resources to instruct a lawyer. The court further held that joint and several liability was not supported by the facts or the appointment order, and that the applicant had...

Citation
[2022] ZAMPMHC 21
Parties
Applicant: Frederick Jacobus Le Roux; Respondent: Marhinus Jacobus Bekker; Respondent: Nanda Le Roux
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
3 November 2022
Case Number
1445/2020
Procedural Posture
Review Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment granted with costs.
Judges
Langa
Legal Topics
Rescission of Default Judgment, Rule 42 Uniform Rules, Bona Fide Defence, Joint and Several Liability, Access to Court, Common Law Rescission
Civil Procedure Rescission of Default Judgment Rule 42 Uniform Rules Bona Fide Defence Joint and Several Liability Access to Court Common Law Rescission

Case Brief

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Parties

Frederick Jacobus Le Roux

Applicant

Marhinus Jacobus Bekker

Respondent

Nanda Le Roux

Respondent

Procedural Posture

Review Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment was erroneously granted in the presence of the applicant.
  2. 2 Whether the applicant was denied a hearing before judgment was granted.
  3. 3 Whether the applicant has shown reasonable cause and a bona fide defence for rescission.

Ratio Decidendi

The court found that the default judgment was erroneously granted in the presence of the applicant, who was denied a hearing despite being physically present and having his presence made known to the court. The applicant was not afforded an opportunity to address the court, which constituted an irregularity and a violation of his constitutional right of access to courts. The applicant provided a reasonable explanation for his default, having received the application only three court days before the hearing and lacking resources to instruct a lawyer. The court further held that joint and several liability was not supported by the facts or the appointment order, and that the applicant had...

Court Disposition

Application for rescission of judgment granted with costs.

Orders

  • The application for the rescission of the judgment dated 17 August 2020 is granted with costs on a party and party scale, inclusive of costs of counsel where so employed.