Mbizana Local Municipality v Teyise (CA&R62/2019) [2019] ZAECMHC 75 (26 November 2019)

Mbizana Local Municipality v Teyise (CA&R62/2019) [2019] ZAECMHC 75 (26 November 2019)

The court found that the appellant provided a reasonable explanation for its default, as its attorneys were not informed of the notice of set down by the correspondent attorneys. The founding affidavit was not hearsay in respect of the explanation for default, as the attorney had personal knowledge of the relevant facts. The appellant disclosed a bona fide defence, namely prescription, which is a complete defence in law and compensates for any poor explanation of default. The court a quo misdirected itself by rejecting the affidavit and dismissing the rescission application. The appeal was upheld, the order of the court a quo set aside, and rescission of the default judgment granted.

Citation
[2019] ZAECMHC 75
Parties
Appellant: Mbizana Local Municipality; Respondent: Lungisa Teyise
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
26 November 2019
Case Number
CA&R62/2019
Procedural Posture
Civil Appeal / Appeal Against Refusal of Rescission of Default Judgment
Outcome
Appeal upheld; order of the court a quo set aside; rescission of default judgment granted.
Judges
M Gwala, RWN Brooks
Legal Topics
Rescission of Default Judgment, Prescription, Bona Fide Defence, Magistrates Court Rules
Civil Procedure Rescission of Default Judgment Prescription Bona Fide Defence Magistrates Court Rules

Case Brief

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Parties

Mbizana Local Municipality

Appellant

Lungisa Teyise

Respondent

Procedural Posture

Civil Appeal / Appeal Against Refusal of Rescission of Default Judgment

Legal Issues

  1. 1 Whether the appellant provided a reasonable explanation for its default in failing to file a plea.
  2. 2 Whether the appellant disclosed a bona fide defence to the respondent's claim.
  3. 3 Whether the founding affidavit supporting the rescission application constituted inadmissible hearsay.

Ratio Decidendi

The court found that the appellant provided a reasonable explanation for its default, as its attorneys were not informed of the notice of set down by the correspondent attorneys. The founding affidavit was not hearsay in respect of the explanation for default, as the attorney had personal knowledge of the relevant facts. The appellant disclosed a bona fide defence, namely prescription, which is a complete defence in law and compensates for any poor explanation of default. The court a quo misdirected itself by rejecting the affidavit and dismissing the rescission application. The appeal was upheld, the order of the court a quo set aside, and rescission of the default judgment granted.

Court Disposition

Appeal upheld; order of the court a quo set aside; rescission of default judgment granted.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and substituted with: 1. The application for rescission of default judgment is upheld; 2. Costs of the application shall be costs in the main action.