Lekoane NO and Another v Joubert (48240/2007) [2008] ZAGPHC 267 (26 August 2008)

Lekoane NO and Another v Joubert (48240/2007) [2008] ZAGPHC 267 (26 August 2008)

The court found that the applicants did not act wilfully in defaulting, as they had no knowledge of the summons or the action brought against them. The first applicant's locus standi was confirmed, as he was cited in the default judgment as trustee of the relevant trust. The applicants presented a bona fide defence, alleging that the mineral rights forming the basis of the respondent's claim were never transferred as required by the contract, and that the respondent's claim for payment was therefore unfounded. Applying the principles in Silber v Ozen Wholesalers, the court held that the applicants had shown good cause for rescission. The default judgment was rescinded, and condonation was...

Citation
[2008] ZAGPHC 267
Parties
Applicant: Moleteleng Lekoane N.O.; Applicant: Moleteleng Lekoane; Respondent: Joubert
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
26 August 2008
Case Number
48240/2007
Procedural Posture
Review Application / Application for Rescission of Default Judgment Under Rule 31(2)(b)
Outcome
Application for rescission of default judgment granted.
Judges
C Pretorius
Legal Topics
Rescission of Judgment, Default Judgment, Mineral Rights Transfer, Contractual Performance
Civil Procedure Land and Property Rescission of Judgment Default Judgment Mineral Rights Transfer Contractual Performance

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Parties

Moleteleng Lekoane N.O.

Applicant

Moleteleng Lekoane

Applicant

Joubert

Respondent

Procedural Posture

Review Application / Application for Rescission of Default Judgment Under Rule 31(2)(b)

Legal Issues

  1. 1 Whether the applicants had knowledge of the summons and default judgment.
  2. 2 Whether the first applicant has locus standi to bring the application.
  3. 3 Whether the applicants have shown good cause for rescission of judgment.

Ratio Decidendi

The court found that the applicants did not act wilfully in defaulting, as they had no knowledge of the summons or the action brought against them. The first applicant's locus standi was confirmed, as he was cited in the default judgment as trustee of the relevant trust. The applicants presented a bona fide defence, alleging that the mineral rights forming the basis of the respondent's claim were never transferred as required by the contract, and that the respondent's claim for payment was therefore unfounded. Applying the principles in Silber v Ozen Wholesalers, the court held that the applicants had shown good cause for rescission. The default judgment was rescinded, and condonation was...

Court Disposition

Application for rescission of default judgment granted.

Orders

  • Condonation is granted for the failure to bring the rescission application within the prescribed time period.
  • The judgment granted on 5 November 2007 against the applicants is rescinded.