Padayichie N.O and Another v Changing Tides 17 (Proprietary) Limited (52868/2021) [2025] ZAGPPHC 504 (15 May 2025)
- Citation
- [2025] ZAGPPHC 504
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- H F Jacobs
- Case number
- 52868/2021
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- H F Jacobs
- Case number
- 52868/2021
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicants failed to provide any substantive explanation for their default or a bona fide defence to the claim. The application for postponement was refused due to lack of supporting evidence and inadequate reasons. The applicants were in willful default, having been properly notified and represented throughout the proceedings. The court concluded that there was no error in the granting of the original judgment and that the interests of justice did not warrant rescission. Accordingly, the application was dismissed with costs on an attorney and client scale.
Court disposition
Application for rescission dismissed with costs on an attorney and client scale.
Orders
- The application is dismissed with costs on a scale as between attorney and client.
02
Material facts
Parties
Kumeshnee Padayichie N.O.
Applicant Counsel: Adv P OosthuizenSaraswathi Padayichie
Applicant Counsel: Adv P OosthuizenChanging Tides 17 (Proprietary) Limited
Respondent Counsel: In personAmounts and remedies
- Judgment Amount: ZAR 647,936.87
03
Procedural history
Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
04
Questions and positions
Legal issues
- 01
Whether the applicants have shown sufficient cause for rescission of the default judgment granted against them.
- 02
Whether the application for postponement of the rescission hearing should be granted.
- 03
Whether the applicants have disclosed a bona fide defence to the claim.
- 04
Whether costs should be awarded against the applicants on an attorney and client scale.
Party arguments
- Applicant
- The applicants sought rescission of the default judgment, arguing that the second applicant's advanced age (73 years) justified a postponement. The first applicant claimed to have applied for legal aid but could not provide proof or details of the application. The applicants provided a vague account of the events leading to their default and did not set out a substantive defence to the claim.
- Respondent
- The respondent opposed the rescission and postponement, highlighting the absence of a substantive application for postponement and the lack of any bona fide defence. The respondent argued that the applicants were in willful default, had legal representation throughout the proceedings, and had been properly notified of the enrolment and bar. The respondent sought dismissal of the application with costs on an attorney and client scale.
05
Court’s reasoning
Legal principles
- 01
Rule 42(1)(a) of the Uniform Rules of Court
A court may rescind a default judgment only if the applicant provides a reasonable explanation for the default and demonstrates a bona fide defence with prospects of success.
- 02
Standard principles of South African civil procedure
Postponement is not granted as a matter of right; the applicant must provide substantive reasons and supporting evidence for the request.
- 03
General costs principles in South African law
Costs may be awarded on an attorney and client scale where the conduct of a party warrants such an order.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicants failed to provide any substantive explanation for their default or a bona fide defence to the claim. The application for postponement was refused due to lack of supporting evidence and inadequate reasons. The applicants were in willful default, having been properly notified and represented throughout the proceedings. The court concluded that there was no error in the granting of the original judgment and that the interests of justice did not warrant rescission. Accordingly, the application was dismissed with costs on an attorney and client scale.
Obiter and limits
- The age of a party alone does not constitute sufficient grounds for postponement without supporting evidence.
- Applicants must provide clear and substantive reasons when seeking postponement or rescission; vague accounts are insufficient.
Court disposition
Application for rescission dismissed with costs on an attorney and client scale.
- The application is dismissed with costs on a scale as between attorney and client.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 52868/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
15/5/2025
In the matters between:-
KUMESHNEE PADAYICHIE N.O.
First
Applicant
SARASWATHI
PADAYICHIE
Second Applicant
and
CHANGING TIDES 17 (PROPRIETARY) LIMITED
Respondent
IN RE:
CHANGING TIDES 17 (PROPRIETARY) LIMITED
Plaintiff
KUMESHNEE PADAYICHIE N.O.
First Defendant
SARASWATHI
PADAYICHIE
Second Defendant
JUDGMENT
JACOBS AJ
[1] This is an application for rescission of a judgment granted against the two applicants jointly and severally in the sum of R647 936.87 and ancillary relief on 21 September 2022.
[2] On 5 May 2025 the applicant’s attorney of record uploaded a notice of withdrawal as attorneys of record. The hearing notice of set down was served on the applicant’s attorney of record on 7 April 2025. On the day of the hearing the first respondent appeared in person and applied for a postponement of the matter. I refused the application for postponement and mentioned that the reasons for the refusal will be contained in this judgment.
[3] No substantive application for postponement was presented. The first respondent mentioned from the bar that she applied for legal aid. She was requested to supply proof of the application for legal aid but I was informed by her that “legal
aid does not provide proof”. No information has been supplied to whom at the legal aid department she applied, exactly
when the application was made, what screening particulars were required and supplied to obtain legal assistance or what the respondents’ prospects of success would be. In open court the first applicant referred to and mentioned the age of the second applicant (73 years of age) as the primary reason why postponement should be granted.
[4] The judgment sought to be rescinded in this application has been granted almost three years ago and the respondents have brought an urgent application to stay execution during January 2023. In my view no explanation at all exists on record to enable me to exercise my discretion in favor of the applicants to grant postponement of this rescission application. It is in my view it is not in the interest of justice to do so.
[5] Default judgment was granted on 21 August 2022. The rescission application is dated 9 November 2022. At the time the rescission application was launched, the applicant had legal presentation. The applicants were informed on 6 July 2022 that the case against them was on the roll for 18 August 2022 and their legal representatives as early as May 2022. On 16 August 2022 the applicants’ legal representatives made a settlement proposal to the respondent.
[6] The applicants show no defense in law (or triable issue) on the merits of the claim against them. I find no error in the granting of the judgment by Phalana J. The applicants had legal representation during the proceedings, until judgment was granted on 18 August 2022. They were under notice of bar to deliver a plea and the notice of enrolment was served on the first applicant personally on 19 May 2022 and, on her attorney two days earlier. A vague and sketchy account of the events that lead to her default is supplied by the first applicant. She was in willful default.
[7] Costs on the same scale as that of the order granted on 21 September 2022 is sought. I can find no reason why the rescission application should not be dismissed with costs on the same scale.
[8] Under the circumstances, I make the following order:
1. The application is dismissed with costs on a scale as between attorney and client.
H
F JACOBS
ACTING Judge of the High Court
GAUTENG DIVISION,
PRETORIA
Heard on: 12 May 2025 For the applicant: Adv P Oosthuizen Email: isebrand1@icloud.com Instructed by: Velile Tinto & Associates Inc Email: service@tintolaw.co.za; meganca@tintolaw.co.za For the respondent: In person Date of Judgment: 15 May 2025
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