Netshitungulu v Changing Tides17 (Pty) Ltd (90644/2019) [2022] ZAGPPHC 826 (4 November 2022)

Netshitungulu v Changing Tides17 (Pty) Ltd (90644/2019) [2022] ZAGPPHC 826 (4 November 2022)

The court found that the applicant was personally served with both the summons and the Rule 46A applications. He delivered a notice of intention to defend but failed to file an answering affidavit within the prescribed period. The subsequent answering affidavit was delivered after judgment and was therefore a nullity. The respondent was not obliged to serve a compliance directive affidavit. The judgment was validly sought and granted, as the court was aware of all relevant facts at the time. The applicant failed to establish any error or procedural irregularity that would justify rescission under Rule 42(1). Accordingly, the application for rescission was dismissed with costs.

Citation
[2022] ZAGPPHC 826
Parties
Applicant: Mashudu David Netshitungulu; Respondent: Changing Tides17 (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 November 2022
Case Number
90644/2019
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Stay of Execution
Outcome
Application for rescission dismissed with costs.
Judges
Nyathi
Legal Topics
Rescission of Judgment, Rule 42, Rule 46a, Default Judgment, Stay of Execution
Civil Procedure Land and Property Rescission of Judgment Rule 42 Rule 46a Default Judgment Stay of Execution

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Parties

Mashudu David Netshitungulu

Applicant

Changing Tides17 (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Stay of Execution

Legal Issues

  1. 1 Whether the default judgment granted on 23 April 2021 was erroneously sought or granted in the absence of the applicant.
  2. 2 Whether the applicant is entitled to rescission of judgment under Rule 42(1).
  3. 3 Whether the writ of execution should be stayed pending finalization of the rescission application.

Ratio Decidendi

The court found that the applicant was personally served with both the summons and the Rule 46A applications. He delivered a notice of intention to defend but failed to file an answering affidavit within the prescribed period. The subsequent answering affidavit was delivered after judgment and was therefore a nullity. The respondent was not obliged to serve a compliance directive affidavit. The judgment was validly sought and granted, as the court was aware of all relevant facts at the time. The applicant failed to establish any error or procedural irregularity that would justify rescission under Rule 42(1). Accordingly, the application for rescission was dismissed with costs.

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The applicant's application for rescission is dismissed with costs.