Nale Trading CC and Another v Freyssinet Posten (Pty) Ltd In re: Freyssinet Posten (Pty) Ltd v Nale Trading (Pty) Ltd and Another (26992/2019) [2021] ZAGPJHC 445 (22 September 2021)

Nale Trading CC and Another v Freyssinet Posten (Pty) Ltd In re: Freyssinet Posten (Pty) Ltd v Nale Trading (Pty) Ltd and Another (26992/2019) [2021] ZAGPJHC 445 (22 September 2021)

The court found that the applicants were properly served at their chosen address and were aware of the proceedings, as evidenced by their attorney's email requesting a postponement. The applicants' claim of lack of personal service was dishonest and misleading. Their failure to enter an appearance was deliberate, constituting wilful default. The applicants did not establish a bona fide defence, as their allegations of duress and misjoinder were unsupported and contradicted by their conduct, including partial payment under the AOD and a prior undertaking to repay the debt. The application for rescission failed to meet the requirements of Rule 31(2)(b), and the applicants did not show good...

Citation
[2021] ZAGPJHC 445
Parties
Applicant: Nale Trading CC; Applicant: Thingahangwi Edwin Muthige; Respondent: Freyssinet Posten (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 September 2021
Case Number
26992/2019
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs on an attorney and client scale.
Judges
Minnaar
Legal Topics
Rescission of Judgment, Wilful Default, Bona Fide Defence, Rule 31 Uniform Rules, Costs Punitive Scale
Civil Procedure Rescission of Judgment Wilful Default Bona Fide Defence Rule 31 Uniform Rules Costs Punitive Scale

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Parties

Nale Trading CC

Applicant

Thingahangwi Edwin Muthige

Applicant

Freyssinet Posten (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment granted on 5 September 2019.
  2. 2 Whether the applicants were in wilful default in failing to defend the main application.
  3. 3 Whether the applicants have a bona fide defence to the respondent's claim under the acknowledgement of debt and suretyship.

Ratio Decidendi

The court found that the applicants were properly served at their chosen address and were aware of the proceedings, as evidenced by their attorney's email requesting a postponement. The applicants' claim of lack of personal service was dishonest and misleading. Their failure to enter an appearance was deliberate, constituting wilful default. The applicants did not establish a bona fide defence, as their allegations of duress and misjoinder were unsupported and contradicted by their conduct, including partial payment under the AOD and a prior undertaking to repay the debt. The application for rescission failed to meet the requirements of Rule 31(2)(b), and the applicants did not show good...

Court Disposition

Application for rescission dismissed with costs on an attorney and client scale.

Orders

  • The application for rescission is dismissed.
  • The applicants, jointly and severally the one paying the other to be absolved, are ordered to pay the costs of this application on the scale as between attorney and client.