Nhlengethwa and Another v Agattu Trading 191 (Pty) Ltd and Others (64120/2015) [2019] ZAGPPHC 382 (8 August 2019)

Nhlengethwa and Another v Agattu Trading 191 (Pty) Ltd and Others (64120/2015) [2019] ZAGPPHC 382 (8 August 2019)

The court found that the applicants launched their rescission application within the prescribed 20-day period after becoming aware of the default judgment. The applicants provided a reasonable explanation for their default, as they believed settlement negotiations were ongoing and were not informed of their rejection. The applicants raised a bona fide defence, particularly regarding the alleged reckless granting of credit in contravention of the Consumer Protection Act, which constitutes a triable issue. The application was made bona fide and not as a delaying tactic. The court exercised its discretion in favour of granting rescission, as all requirements were satisfied.

Citation
[2019] ZAGPPHC 382
Parties
Applicant: Sipho Slson Nhlengethwa; Applicant: Joyce Maria Nhlengethwa; Respondent: Agattu Trading 191 (Pty) Ltd; Respondent: Koegelenberg Attorneys; Respondent: Sekwati Gabriel Motsepe
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 August 2019
Case Number
64120/2015
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment granted; default judgment rescinded and set aside; applicants granted leave to defend; ancillary relief granted; costs are costs in the cause.
Judges
E.M. Kubushi
Legal Topics
Rescission of Judgment, Default Judgment, Good Cause Requirement, Condonation, Consumer Protection Act, Bona Fide Defence
Civil Procedure Rescission of Judgment Default Judgment Good Cause Requirement Condonation Consumer Protection Act Bona Fide Defence

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Parties

Sipho Slson Nhlengethwa

Applicant

Joyce Maria Nhlengethwa

Applicant

Agattu Trading 191 (Pty) Ltd

Respondent

Koegelenberg Attorneys

Respondent

Sekwati Gabriel Motsepe

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants satisfied the requirements for rescission of the default judgment.
  2. 2 Whether the application for rescission was launched within the prescribed period after knowledge of the judgment.
  3. 3 Whether the applicants provided a reasonable explanation for their default and established a bona fide defence.

Ratio Decidendi

The court found that the applicants launched their rescission application within the prescribed 20-day period after becoming aware of the default judgment. The applicants provided a reasonable explanation for their default, as they believed settlement negotiations were ongoing and were not informed of their rejection. The applicants raised a bona fide defence, particularly regarding the alleged reckless granting of credit in contravention of the Consumer Protection Act, which constitutes a triable issue. The application was made bona fide and not as a delaying tactic. The court exercised its discretion in favour of granting rescission, as all requirements were satisfied.

Court Disposition

Application for rescission of judgment granted; default judgment rescinded and set aside; applicants granted leave to defend; ancillary relief granted; costs are costs in the cause.

Orders

  • The application for rescission of judgment is granted.
  • The default judgment granted on 8 March 2015 is rescinded and set aside.