Makhomisani N.O. and Another v SB Guarantee Company (RF) (PTY) Limited (2019/41752) [2022] ZAGPJHC 179 (23 March 2022)

Makhomisani N.O. and Another v SB Guarantee Company (RF) (PTY) Limited (2019/41752) [2022] ZAGPJHC 179 (23 March 2022)

The court found that the August 2020 order dismissing the rescission application was a final order, granted after proper consideration and in the presence of the applicants' legal representative. The applicants failed to comply with court orders and practice directives, and did not provide a reasonable or acceptable explanation for their default. The requirements for rescission under Rule 42(1)(a) were not met, as the order was not granted in the absence of the applicants. Common law grounds for rescission were also not applicable, as there was no default of appearance, fraud, or iustus error. The applicants' ignorance of legal procedures and lack of legal representation did not...

Citation
[2022] ZAGPJHC 179
Parties
Applicant: Khathutshelo Makhomisani N.O.; Applicant: Iyonda Maphuthi Makhomisani N.O.; Respondent: SB Guarantee Company (RF)(PTY) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 March 2022
Case Number
2019/41752
Procedural Posture
Urgent Application / Application to Set Aside Previous Order and Reinstate Rescission Application
Outcome
Application dismissed with costs.
Judges
Ngcongo
Legal Topics
Rescission of Judgment, Functus Officio, Rule 42 Uniform Rules, Default Judgment, Audi Alteram Partem, Practice Directive Non Compliance
Civil Procedure Rescission of Judgment Functus Officio Rule 42 Uniform Rules Default Judgment Audi Alteram Partem Practice Directive Non Compliance

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Parties

Khathutshelo Makhomisani N.O.

Applicant

Iyonda Maphuthi Makhomisani N.O.

Applicant

SB Guarantee Company (RF)(PTY) Limited

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Previous Order and Reinstate Rescission Application

Legal Issues

  1. 1 Whether the August 2020 order dismissing the rescission application was a final order.
  2. 2 Whether the applicants are entitled to have the rescission application reinstated.
  3. 3 Whether the August 2020 order should be rescinded under Rule 42 or common law.

Ratio Decidendi

The court found that the August 2020 order dismissing the rescission application was a final order, granted after proper consideration and in the presence of the applicants' legal representative. The applicants failed to comply with court orders and practice directives, and did not provide a reasonable or acceptable explanation for their default. The requirements for rescission under Rule 42(1)(a) were not met, as the order was not granted in the absence of the applicants. Common law grounds for rescission were also not applicable, as there was no default of appearance, fraud, or iustus error. The applicants' ignorance of legal procedures and lack of legal representation did not...

Court Disposition

Application dismissed with costs.

Orders

  • The application to set aside the August 2020 order and reinstate the rescission application is dismissed.
  • The applicants are ordered to pay the costs of the application.