Pico v Malgas (A3114/2018) [2019] ZAGPJHC 214 (31 May 2019)

Pico v Malgas (A3114/2018) [2019] ZAGPJHC 214 (31 May 2019)

The magistrate erred in dismissing the application for rescission of the default judgment. The default judgment was granted by the clerk of the court for an unliquidated amount without any oral or affidavit evidence as required by Rule 12(4) of the Magistrates’ Court Rules. This procedural irregularity rendered the judgment susceptible to rescission. Although the appellant's explanation for her default was weak, she demonstrated a bona fide intention to defend and had good prospects of success at the procedural level. The magistrate should have granted the rescission application. Accordingly, the appeal succeeds and the magistrate’s order is set aside.

Citation
[2019] ZAGPJHC 214
Parties
Appellant: Pico Ogopoleng Cathrine; Respondent: Malgas Molebogeng Letitia
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
31 May 2019
Case Number
A3114/2018
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Rescission Application
Outcome
Appeal upheld; magistrate’s order set aside; default judgment rescinded.
Judges
M B Mahalelo, H Ngomane
Legal Topics
Rescission of Judgment, Default Judgment, Magistrates Court Rules, Unliquidated Damages
Civil Procedure Rescission of Judgment Default Judgment Magistrates Court Rules Unliquidated Damages

Case Brief

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Parties

Pico Ogopoleng Cathrine

Appellant

Malgas Molebogeng Letitia

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Rescission Application

Legal Issues

  1. 1 Whether the magistrate erred in dismissing the application for rescission of default judgment.
  2. 2 Whether the default judgment for unliquidated damages was properly granted by the clerk of the court.
  3. 3 Whether the appellant provided a satisfactory explanation for the default and demonstrated a bona fide defence.

Ratio Decidendi

The magistrate erred in dismissing the application for rescission of the default judgment. The default judgment was granted by the clerk of the court for an unliquidated amount without any oral or affidavit evidence as required by Rule 12(4) of the Magistrates’ Court Rules. This procedural irregularity rendered the judgment susceptible to rescission. Although the appellant's explanation for her default was weak, she demonstrated a bona fide intention to defend and had good prospects of success at the procedural level. The magistrate should have granted the rescission application. Accordingly, the appeal succeeds and the magistrate’s order is set aside.

Court Disposition

Appeal upheld; magistrate’s order set aside; default judgment rescinded.

Orders

  • The appeal is upheld.
  • The order of the magistrate issued on 27 March 2018 is set aside and replaced with an order rescinding and setting aside the default judgment granted on 15 June 2009.