Molokoane Civil Construction CC and Others v Nurcha Finace Company (Pty) Ltd (31988/06) [2009] ZAGPPHC 183 (3 April 2009)

Molokoane Civil Construction CC and Others v Nurcha Finace Company (Pty) Ltd (31988/06) [2009] ZAGPPHC 183 (3 April 2009)

The applicants failed to provide any explanation for their delay in bringing the rescission application, which was filed more than three months after they became aware of the default judgment, far exceeding the twenty-day period prescribed by the rules. No application for condonation was made, nor was any reason for the delay furnished. The absence of an explanation is fatal to the application, as both the rules and common law require a reasonable and acceptable explanation for default and delay. Without such explanation, the court cannot exercise its discretion in favour of the applicants, regardless of the merits of their defence. The application for rescission is therefore dismissed.

Citation
[2009] ZAGPPHC 183
Parties
Applicant: Molokoane Civil Construction CC; Applicant: David Mbulaheni Malada; Applicant: Avhatakali Nicolus Mulaudzi; Respondent: Nurcha Finace Company (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 April 2009
Case Number
31988/06
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs, including costs of senior counsel.
Judges
Mavundla
Legal Topics
Rescission of Judgment, Condonation, Default Judgment, Reasonable Explanation for Delay
Civil Procedure Rescission of Judgment Condonation Default Judgment Reasonable Explanation for Delay

Case Brief

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Parties

Molokoane Civil Construction CC

Applicant

David Mbulaheni Malada

Applicant

Avhatakali Nicolus Mulaudzi

Applicant

Nurcha Finace Company (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants provided a reasonable and acceptable explanation for their default in failing to defend the action.
  2. 2 Whether the application for rescission was brought within the prescribed or reasonable time.
  3. 3 Whether the applicants have a bona fide defence to the respondent's claim.

Ratio Decidendi

The applicants failed to provide any explanation for their delay in bringing the rescission application, which was filed more than three months after they became aware of the default judgment, far exceeding the twenty-day period prescribed by the rules. No application for condonation was made, nor was any reason for the delay furnished. The absence of an explanation is fatal to the application, as both the rules and common law require a reasonable and acceptable explanation for default and delay. Without such explanation, the court cannot exercise its discretion in favour of the applicants, regardless of the merits of their defence. The application for rescission is therefore dismissed.

Court Disposition

Application for rescission dismissed with costs, including costs of senior counsel.

Orders

  • The application for rescission is dismissed with costs, which costs shall include the costs consequent to the employment of senior counsel.