Muthen v Waco Africa 2005 (Pty)Ltd and Another (40664/2016) [2016] ZAGPPHC 804 (7 September 2016)

Muthen v Waco Africa 2005 (Pty)Ltd and Another (40664/2016) [2016] ZAGPPHC 804 (7 September 2016)

The court found that the applicant failed to provide any factual basis or averment in the founding affidavit that the default judgment was erroneously sought or granted. There was no evidence that the application for default judgment was not properly served or that the applicant was deprived of the opportunity to...

Source-derived case information.

Citation
[2016] ZAGPPHC 804
Parties
Applicant: Theodore Claude Muthen; Respondent: Waco Africa 2005 (Pty) Ltd; Respondent: Steyn's Building Construction CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 September 2016
Case Number
40664/2013
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs.
Judges
C J van der Westhuizen
Legal Topics
Rescission of Judgment, Default Judgment, Rule 31, Rule 42, Suretyship Liability
Civil Procedure Rescission of Judgment Default Judgment Rule 31 Rule 42 Suretyship Liability

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Parties

Theodore Claude Muthen

Applicant

Waco Africa 2005 (Pty) Ltd

Respondent

Steyn's Building Construction CC

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant has established grounds for rescission of the default judgment under Rule 31, Rule 42, or the common law.
  2. 2 Whether the default judgment was erroneously sought or granted.
  3. 3 Whether the applicant has raised a bona fide defence to the claim.

Ratio Decidendi

The court found that the applicant failed to provide any factual basis or averment in the founding affidavit that the default judgment was erroneously sought or granted. There was no evidence that the application for default judgment was not properly served or that the applicant was deprived of the opportunity to defend the action. The applicant's reliance on the alleged incompetence of his previous attorney was not supported by the facts, as his current attorney had sought an indulgence to file a plea but failed to do so. Furthermore, the defence raised regarding the limitation of the suretyship was not substantiated, as the suretyship was found to be unlimited and separate from the...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed with costs.