Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd (128/06) [2007] ZASCA 85; [2007] SCA 85 (RSA) ; 2007 (6) SA 87 (SCA) (1 June 2007)

Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd (128/06) [2007] ZASCA 85; [2007] SCA 85 (RSA) ; 2007 (6) SA 87 (SCA) (1 June 2007)

The Supreme Court of Appeal held that the applicants failed to establish that the default judgments were erroneously granted under Rule 42(1)(a). Clause 11 of the sale agreements specifically governed the consequence of failing to erect buildings within the stipulated period and did not require prior notice to rectify breach, overriding the general notice requirement in clause 8. The applicants did not provide evidence of payment of rates, taxes, levies, or interest, nor did they substantiate any entitlement to restitution or moderation under the Conventional Penalties Act. The existence of a defence not disclosed at the time of judgment does not render a procedurally valid default...

Citation
[2007] ZASCA 85
Parties
Appellant: Lodhi 2 Properties Investments CC; Appellant: Lodhi 3 Properties Investments CC; Respondent: Bondev Developments (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2007
Case Number
128/06
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against High Court Judgment Refusing Rescission of Default Judgments.
Outcome
Application for leave to appeal dismissed with costs.
Judges
Streicher, Lewis, Ponnan, Maya, Snyders
Legal Topics
Rescission of Judgment, Rule 42 1 a, Default Judgment, Procedural Entitlement, Notice of Proceedings
Civil Procedure Rescission of Judgment Rule 42 1 a Default Judgment Procedural Entitlement Notice of Proceedings

Case Brief

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Parties

Lodhi 2 Properties Investments CC

Appellant

Lodhi 3 Properties Investments CC

Appellant

Bondev Developments (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against High Court Judgment Refusing Rescission of Default Judgments.

Legal Issues

  1. 1 Whether the default judgments were erroneously granted in terms of Rule 42(1)(a).
  2. 2 Whether a notice to rectify breach was required before retransfer could be claimed under the sale agreements.
  3. 3 Whether the existence of a subsequently disclosed defence renders a default judgment erroneously granted.

Ratio Decidendi

The Supreme Court of Appeal held that the applicants failed to establish that the default judgments were erroneously granted under Rule 42(1)(a). Clause 11 of the sale agreements specifically governed the consequence of failing to erect buildings within the stipulated period and did not require prior notice to rectify breach, overriding the general notice requirement in clause 8. The applicants did not provide evidence of payment of rates, taxes, levies, or interest, nor did they substantiate any entitlement to restitution or moderation under the Conventional Penalties Act. The existence of a defence not disclosed at the time of judgment does not render a procedurally valid default...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.