Malan and Another v Merchant West (Pty) Ltd and Another (19063/2017) [2020] ZAGPPHC 156 (14 March 2020)

Malan and Another v Merchant West (Pty) Ltd and Another (19063/2017) [2020] ZAGPPHC 156 (14 March 2020)

The court found that the applicants failed to provide a satisfactory explanation for the delay in bringing the rescission application, and their defence lacked bona fides. The business rescue plan and sale agreement did not specifically address the position of sureties, and therefore did not discharge the applicants' liability. The sale of the generator to a third party did not constitute a compromise that would release the applicants from their obligations under the suretyship. The applicants were not in wilful default, but they did not establish a bona fide defence or reasonable prospects of success. The judgment was not erroneously granted, and there was no basis for rescission under...

Citation
[2020] ZAGPPHC 156
Parties
Applicant: Jean-Paul Malan; Applicant: Barbara Malan; Respondent: Merchant West (Pty) Ltd; Respondent: The Sheriff of the High Court Randburg West
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 March 2020
Case Number
19063/2017
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs on attorney and client scale.
Judges
Mavundla
Legal Topics
Rescission of Judgment, Suretyship Liability, Business Rescue, Default Judgment, Service of Process
Civil Procedure Commercial and Corporate Rescission of Judgment Suretyship Liability Business Rescue Default Judgment Service of Process

Case Brief

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Parties

Jean-Paul Malan

Applicant

Barbara Malan

Applicant

Merchant West (Pty) Ltd

Respondent

The Sheriff of the High Court Randburg West

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment.
  2. 2 Whether the applicants were in wilful default of the proceedings.
  3. 3 Whether the business rescue plan and sale agreement discharged the applicants' liability as sureties.

Ratio Decidendi

The court found that the applicants failed to provide a satisfactory explanation for the delay in bringing the rescission application, and their defence lacked bona fides. The business rescue plan and sale agreement did not specifically address the position of sureties, and therefore did not discharge the applicants' liability. The sale of the generator to a third party did not constitute a compromise that would release the applicants from their obligations under the suretyship. The applicants were not in wilful default, but they did not establish a bona fide defence or reasonable prospects of success. The judgment was not erroneously granted, and there was no basis for rescission under...

Court Disposition

Application for rescission dismissed with costs on attorney and client scale.

Orders

  • The application for rescission is dismissed.
  • The applicants are ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of the application on attorney and client scale.