National Pride Trading 452 (Pty) Ltd v Media 24 Ltd (227/2010) [2010] ZAECPEHC 56; 2010 (6) SA 587 (ECP) (2 September 2010)

Parties

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

1. 1 Whether the order for ejectment granted in the absence of the applicant may be rescinded under Rule 42(1)(a) of the Uniform Rules of Court.
2. 2 Whether failure to serve notice of set down on the applicant constitutes a procedural irregularity justifying rescission.
3. 3 Whether the applicant must show a bona fide defence under Rule 42(1)(a) for rescission.

Ratio Decidendi

The court held that the respondent, as applicant in the ejectment proceedings, failed to comply with Practice Rule 15(k)(ii) by not serving notice of set down on the applicant. This procedural irregularity rendered the order for ejectment erroneously sought and granted within the meaning of Rule 42(1)(a). The court rejected the respondent's argument that a bona fide defence must be shown under Rule 42(1)(a), confirming that the requirements for rescission are prescribed by the Rule itself and not imported from the common law. The absence of proper notice deprived the applicant of its right to be heard, justifying rescission of the order without the need to show prospects of success on the...

Court Disposition

Application for rescission granted; ejectment order rescinded.

Orders

• The order of this court granted on 23 March 2010 in this matter is rescinded and set aside.
• The respondent is ordered to pay the costs of this application.