Peele v Van Der Schyff and Others (1010/12) [2013] ZANWHC 77 (5 December 2013)

Peele v Van Der Schyff and Others (1010/12) [2013] ZANWHC 77 (5 December 2013)

The court found that the requirements for rescission under Rule 42(1)(a) were met. The judgment was granted in the absence of the respondent, it affected him, and it was erroneously granted because service was not effected at his residence. The fact that the respondent may have become aware of the proceedings does not cure the defective service. The judgment was therefore rescinded and the status quo ante restored.

Citation
[2013] ZANWHC 77
Parties
Respondent: Bethuel Ofentse Peele; Applicant: Corne van der Schyff; Applicant: Expro Productions CC t/a Phokeng Build It; Applicant: Johan van den Berg
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
5 December 2013
Case Number
1010/12
Procedural Posture
Rescission Application / Application for Rescission of Judgment Under Rule 42(1)(a)
Outcome
Application for rescission granted; judgment of 16 August 2012 rescinded.
Judges
A A Landman
Legal Topics
Rescission of Judgment, Service of Process, Rule 42 Application
Civil Procedure Rescission of Judgment Service of Process Rule 42 Application

Case Brief

Summary, issues, holding and outcome

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Parties

Bethuel Ofentse Peele

Respondent

Corne van der Schyff

Applicant

Expro Productions CC t/a Phokeng Build It

Applicant

Johan van den Berg

Applicant

Procedural Posture

Rescission Application / Application for Rescission of Judgment Under Rule 42(1)(a)

Legal Issues

  1. 1 Whether the judgment granted on 16 August 2012 should be rescinded under Rule 42(1)(a).
  2. 2 Whether service of summons was properly effected at the respondent's residence.
  3. 3 Whether the requirements for rescission under Rule 42(1)(a) are satisfied.

Ratio Decidendi

The court found that the requirements for rescission under Rule 42(1)(a) were met. The judgment was granted in the absence of the respondent, it affected him, and it was erroneously granted because service was not effected at his residence. The fact that the respondent may have become aware of the proceedings does not cure the defective service. The judgment was therefore rescinded and the status quo ante restored.

Court Disposition

Application for rescission granted; judgment of 16 August 2012 rescinded.

Orders

  • The judgment granted by the Court on 16 August 2012 under case number 1010/12 is rescinded.
  • The respondents are directed to restore the status quo ante by signing all documents necessary to retransfer the applicant's membership interest in the second respondent back to him within 15 days from the date of this order.