Malas (Pty) Ltd v Mossie and Others (15196/21) [2025] ZAGPPHC 570 (5 June 2025)

Malas (Pty) Ltd v Mossie and Others (15196/21) [2025] ZAGPPHC 570 (5 June 2025)

The court found that Malas (Pty) Ltd was not served with the Rule 28(1) notice, the amended particulars of claim, the application for default judgment, or the notice of set down. The returns of service relied upon by the respondent did not establish that Malas had knowledge of the court order prior to October 2024, as the documents were served on junior employees who did not understand their import and did not communicate them to management. The long-standing practice in the Gauteng Division requires notice to be given to a defendant where more than six months have elapsed between service of summons and the application for default judgment. This practice was not followed. The application...

Citation
[2025] ZAGPPHC 570
Parties
Applicant: Malas (Pty) Ltd; Respondent: Fundiswa Ethel Mossie; Respondent: NPB Security Services; Respondent: Phologo Terence Rasakanya
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 June 2025
Case Number
15196/21
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
The application for rescission is granted; the default judgment of 11 October 2022 is rescinded.
Judges
GC Wright
Legal Topics
Rescission of Default Judgment, Service of Process, Uniform Rules of Court, Practice Direction, Imputation of Knowledge
Civil Procedure Rescission of Default Judgment Service of Process Uniform Rules of Court Practice Direction Imputation of Knowledge

Case Brief

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Parties

Malas (Pty) Ltd

Applicant

Fundiswa Ethel Mossie

Respondent

NPB Security Services

Respondent

Phologo Terence Rasakanya

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted against Malas (Pty) Ltd should be rescinded due to lack of proper service of key documents.
  2. 2 Whether knowledge of the court order can be imputed to Malas based on service on junior employees.
  3. 3 Whether the long-standing practice in the Gauteng Division requiring notice for default judgment after a significant lapse of time was followed.

Ratio Decidendi

The court found that Malas (Pty) Ltd was not served with the Rule 28(1) notice, the amended particulars of claim, the application for default judgment, or the notice of set down. The returns of service relied upon by the respondent did not establish that Malas had knowledge of the court order prior to October 2024, as the documents were served on junior employees who did not understand their import and did not communicate them to management. The long-standing practice in the Gauteng Division requires notice to be given to a defendant where more than six months have elapsed between service of summons and the application for default judgment. This practice was not followed. The application...

Court Disposition

The application for rescission is granted; the default judgment of 11 October 2022 is rescinded.

Orders

  • The order of 11 October 2022 is rescinded.
  • The first respondent is to pay the applicant’s costs on scale A.