Molema and Another v Lethamakga Business Enterprise CC (40024/2018) [2023] ZAGPPHC 740 (29 August 2023)

Molema and Another v Lethamakga Business Enterprise CC (40024/2018) [2023] ZAGPPHC 740 (29 August 2023)

The court held that the summary judgment was not granted in default because the applicants had filed an opposing affidavit. Service of the notice of set down by email was valid, as the applicants' attorneys had provided an email address for service and had previously consented to electronic service. The absence of the applicants or their counsel at the hearing does not constitute default under Rule 42. The application for rescission under Rule 42 is therefore not competent. Furthermore, the applicants failed to make out a case for rescission under common law, as no bona fide defence was disclosed. The application was dismissed with costs.

Citation
[2023] ZAGPPHC 740
Parties
Applicant: Botlhale Molema; Applicant: Leseding Account Services CC; Respondent: Lethamakga Business Enterprise CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 August 2023
Case Number
40024/2018
Procedural Posture
Urgent Application / Application for Rescission of Summary Judgment
Outcome
Application for rescission dismissed with costs.
Judges
E van der Schyff
Legal Topics
Rescission of Judgment, Service by Electronic Mail, Rule 42 Uniform Rules, Summary Judgment, Default Judgment
Civil Procedure Rescission of Judgment Service by Electronic Mail Rule 42 Uniform Rules Summary Judgment Default Judgment

Case Brief

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Parties

Botlhale Molema

Applicant

Leseding Account Services CC

Applicant

Lethamakga Business Enterprise CC

Respondent

Procedural Posture

Urgent Application / Application for Rescission of Summary Judgment

Legal Issues

  1. 1 Whether the summary judgment was granted in default, justifying rescission under Rule 42.
  2. 2 Whether service of the notice of set down by email was valid and consented to.
  3. 3 Whether the applicants made out a case for rescission under common law.

Ratio Decidendi

The court held that the summary judgment was not granted in default because the applicants had filed an opposing affidavit. Service of the notice of set down by email was valid, as the applicants' attorneys had provided an email address for service and had previously consented to electronic service. The absence of the applicants or their counsel at the hearing does not constitute default under Rule 42. The application for rescission under Rule 42 is therefore not competent. Furthermore, the applicants failed to make out a case for rescission under common law, as no bona fide defence was disclosed. The application was dismissed with costs.

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed with costs.