Mojaho Trading (Pty) Ltd and Others v National Empowerment Fund (18678/17) [2019] ZAGPPHC 14 (31 January 2019)

Mojaho Trading (Pty) Ltd and Others v National Empowerment Fund (18678/17) [2019] ZAGPPHC 14 (31 January 2019)

The court found that service of summons on the applicants was validly effected at their chosen domicilium and principal place of business as per the CIPC records. The applicants failed to provide a satisfactory explanation for their default, and their failure to update their registered address constituted negligence. However, the applicants disclosed a bona fide defence, including the absence of an acceleration clause in the settlement agreement and the respondent's concession that R650,000.00 had been paid but not deducted from the judgment amount. The settlement agreement did not release the sureties, but the respondent failed to justify claiming the full outstanding amount in the...

Citation
[2019] ZAGPPHC 14
Parties
Applicant: Mojaho Trading (Pty) Ltd; Applicant: Vincent Mokhele Mokholo; Applicant: Eric 5081 Mokholo; Applicant: Mogmad R Nordien; Respondent: National Empowerment Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 January 2019
Case Number
18678/17
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Default judgment rescinded; applicants granted leave to defend.
Judges
Collis
Legal Topics
Rescission of Default Judgment, Loan Facility Agreement, Suretyship, Service of Process, Settlement Agreement
Civil Procedure Banking and Finance Rescission of Default Judgment Loan Facility Agreement Suretyship Service of Process Settlement Agreement

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Parties

Mojaho Trading (Pty) Ltd

Applicant

Vincent Mokhele Mokholo

Applicant

Eric 5081 Mokholo

Applicant

Mogmad R Nordien

Applicant

National Empowerment Fund

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants provided a reasonable explanation for their default in defending the summons.
  2. 2 Whether the applicants were in wilful default.
  3. 3 Whether service of summons was valid and proper under the Rules of Court.

Ratio Decidendi

The court found that service of summons on the applicants was validly effected at their chosen domicilium and principal place of business as per the CIPC records. The applicants failed to provide a satisfactory explanation for their default, and their failure to update their registered address constituted negligence. However, the applicants disclosed a bona fide defence, including the absence of an acceleration clause in the settlement agreement and the respondent's concession that R650,000.00 had been paid but not deducted from the judgment amount. The settlement agreement did not release the sureties, but the respondent failed to justify claiming the full outstanding amount in the...

Court Disposition

Default judgment rescinded; applicants granted leave to defend.

Orders

  • The judgment granted by the court on 11 October 2017 is hereby rescinded.
  • The first, second, third and fourth applicants are hereby granted leave to defend.