Pretorius and Others v Iliad Africa Trading (Pty) Ltd (5348/2016) [2017] ZAFSHC 85 (25 May 2017)

Pretorius and Others v Iliad Africa Trading (Pty) Ltd (5348/2016) [2017] ZAFSHC 85 (25 May 2017)

The court found that the applicants provided a satisfactory explanation for their default, as they were unaware of the second action due to relocation and could not reasonably anticipate duplicate proceedings. However, the applicants failed to establish a bona fide defence to the respondent's claim. The plea of lis alibi pendens, while available, is dilatory and does not invalidate the default judgment in the absence of a substantive defence. The defences raised regarding procedural defects, absence of written suretyship, and applicability of the National Credit Act were either rectified in the second action or unsupported by facts. The business rescue proceedings did not discharge the...

Citation
[2017] ZAFSHC 85
Parties
Applicant: Barend Mattheus Pretorius; Applicant: Lisa Nicole Damon; Applicant: Johan Louis Du Plessis; Respondent: Iliad Africa Trading (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 May 2017
Case Number
5348/2016
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs.
Judges
Snellenburg
Legal Topics
Rescission of Default Judgment, Suretyship, Lis Alibi Pendens, Service at Domicilium, National Credit Act Exclusion
Civil Procedure Commercial and Corporate Rescission of Default Judgment Suretyship Lis Alibi Pendens Service at Domicilium National Credit Act Exclusion

Case Brief

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Parties

Barend Mattheus Pretorius

Applicant

Lisa Nicole Damon

Applicant

Johan Louis Du Plessis

Applicant

Iliad Africa Trading (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment.
  2. 2 Whether the applicants were in wilful default in failing to defend the second action.
  3. 3 Whether the applicants have a bona fide defence to the respondent's claim.

Ratio Decidendi

The court found that the applicants provided a satisfactory explanation for their default, as they were unaware of the second action due to relocation and could not reasonably anticipate duplicate proceedings. However, the applicants failed to establish a bona fide defence to the respondent's claim. The plea of lis alibi pendens, while available, is dilatory and does not invalidate the default judgment in the absence of a substantive defence. The defences raised regarding procedural defects, absence of written suretyship, and applicability of the National Credit Act were either rectified in the second action or unsupported by facts. The business rescue proceedings did not discharge the...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed with costs payable on the party and party scale.