Makokotlela v Khumalo and Others (A199/2020) [2023] ZAGPPHC 1939 (17 November 2023)

Makokotlela v Khumalo and Others (A199/2020) [2023] ZAGPPHC 1939 (17 November 2023)

The court found that service of summons on attorneys who had withdrawn as attorneys of record was irregular and did not comply with Rule 4 of the Uniform Rules of Court. The respondent failed to establish that service was effected by agreement or that the attorneys acted as agents duly authorised in writing. The court a quo erred in finding that the appellant was aware of the summons prior to default judgment, as there was no evidence of such notice. The default judgment was therefore erroneously granted and must be rescinded under Rule 42(1)(a). The appellant provided a reasonable explanation for the delay in bringing the rescission application and established a prima facie bona fide...

Citation
[2023] ZAGPPHC 1939
Parties
Appellant: Lionel Makokotlela; Respondent: Amos Khumalo; Respondent: The Sheriff of the High Court Pretoria Central; Respondent: Companies and Intellectual Property Commission; Respondent: The Registrar of Deeds Servipix 11 CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 November 2023
Case Number
A199/2020
Procedural Posture
Civil Appeal / Full Bench Appeal Against Dismissal of Rescission Application
Outcome
Appeal upheld; default judgment rescinded; appellant granted leave to defend; first respondent ordered to pay costs.
Judges
Swanepoel, Strydom, Malatsi-Teffo
Legal Topics
Default Judgment, Rescission of Judgment, Service of Process, Rule 42 Uniform Rules, Audi Alteram Partem
Civil Procedure Default Judgment Rescission of Judgment Service of Process Rule 42 Uniform Rules Audi Alteram Partem

Case Brief

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Parties

Lionel Makokotlela

Appellant

Amos Khumalo

Respondent

The Sheriff of the High Court Pretoria Central

Respondent

Companies and Intellectual Property Commission

Respondent

The Registrar of Deeds Servipix 11 CC

Respondent

Procedural Posture

Civil Appeal / Full Bench Appeal Against Dismissal of Rescission Application

Legal Issues

  1. 1 Whether service of summons on attorneys who had withdrawn as attorneys of record constituted proper service.
  2. 2 Whether the default judgment was erroneously granted due to irregular service.
  3. 3 Whether the appellant ratified the irregular service by subsequent conduct.

Ratio Decidendi

The court found that service of summons on attorneys who had withdrawn as attorneys of record was irregular and did not comply with Rule 4 of the Uniform Rules of Court. The respondent failed to establish that service was effected by agreement or that the attorneys acted as agents duly authorised in writing. The court a quo erred in finding that the appellant was aware of the summons prior to default judgment, as there was no evidence of such notice. The default judgment was therefore erroneously granted and must be rescinded under Rule 42(1)(a). The appellant provided a reasonable explanation for the delay in bringing the rescission application and established a prima facie bona fide...

Court Disposition

Appeal upheld; default judgment rescinded; appellant granted leave to defend; first respondent ordered to pay costs.

Orders

  • The appeal is upheld.
  • The first respondent is ordered to pay the costs of the appeal and the leave to appeal.