Nyama and Chips CC and Another v Naheel Investments (PTY) Ltd: In re: Naheel Investments (PTY) Ltd v Nyama and Chips CC and Another (2017/20038) [2022] ZAGPJHC 824 (21 October 2022)

Nyama and Chips CC and Another v Naheel Investments (PTY) Ltd: In re: Naheel Investments (PTY) Ltd v Nyama and Chips CC and Another (2017/20038) [2022] ZAGPJHC 824 (21 October 2022)

The applicants failed to provide a reasonable and satisfactory explanation for their excessive delay in bringing the rescission application, attributing blame to multiple attorneys without taking sufficient responsibility. The explanation for default was not acceptable, and service of summons was validly effected at the chosen domicilium addresses in accordance with the Uniform Rules. The applicants did not establish a bona fide defence with prospects of success, as the lease agreement contained a non-variation clause and was silent on any obligation to supply gas. The evidence and conduct of the parties did not support the inference of a tacit term. The application was not bona fide and...

Citation
[2022] ZAGPJHC 824
Parties
Applicant: Nyama & Chips CC; Applicant: Mario Andreou; Respondent: Naheel Investments (PTY) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 October 2022
Case Number
2017/20038
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Rescission application dismissed with costs.
Judges
Tlhotlhalemaje
Legal Topics
Rescission of Judgment, Default Judgment, Lease Agreement, Tacit Terms, Service of Process
Civil Procedure Commercial and Corporate Rescission of Judgment Default Judgment Lease Agreement Tacit Terms Service of Process

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Parties

Nyama & Chips CC

Applicant

Mario Andreou

Applicant

Naheel Investments (PTY) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants provided a reasonable and satisfactory explanation for their default and delay in bringing the rescission application.
  2. 2 Whether the applicants established a bona fide defence with prospects of success on the merits, specifically regarding the alleged tacit term in the lease agreement obliging the respondent to supply gas.
  3. 3 Whether service of summons was valid and proper in terms of the chosen domicilium addresses and the Uniform Rules of Court.

Ratio Decidendi

The applicants failed to provide a reasonable and satisfactory explanation for their excessive delay in bringing the rescission application, attributing blame to multiple attorneys without taking sufficient responsibility. The explanation for default was not acceptable, and service of summons was validly effected at the chosen domicilium addresses in accordance with the Uniform Rules. The applicants did not establish a bona fide defence with prospects of success, as the lease agreement contained a non-variation clause and was silent on any obligation to supply gas. The evidence and conduct of the parties did not support the inference of a tacit term. The application was not bona fide and...

Court Disposition

Rescission application dismissed with costs.

Orders

  • The first and second applicants’ rescission application is dismissed.
  • The first and second applicants are ordered to pay the costs of this application, jointly and severally, the one paying the other to be absolved.