R W v W M (3300/2018) [2019] ZAFSHC 71 (30 May 2019)

R W v W M (3300/2018) [2019] ZAFSHC 71 (30 May 2019)

The court found that the applicant's conduct after receiving the summons, including participating in settlement negotiations, delivering post-dated cheques, and corresponding with the respondent's attorneys, negated his assertion that he mistakenly believed the summons had been handed to his attorney. The applicant failed to establish good cause for his default and was found to be in wilful default. As the absence of wilful default is a fundamental requirement for rescission, the application was dismissed without consideration of further issues.

Citation
[2019] ZAFSHC 71
Parties
Applicant: R W; Respondent: W M
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 May 2019
Case Number
3300/2018
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed with costs.
Judges
P.E. Molitsoane
Legal Topics
Rescission of Judgment, Wilful Default, Bona Fide Defence, Rule 27 Application
Civil Procedure Rescission of Judgment Wilful Default Bona Fide Defence Rule 27 Application

Case Brief

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Parties

R W

Applicant

W M

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant wilfully defaulted in failing to defend the main action.
  2. 2 Whether the applicant has established good cause for rescission of the default judgment.
  3. 3 Whether the applicant has raised a bona fide defence with prospects of success.

Ratio Decidendi

The court found that the applicant's conduct after receiving the summons, including participating in settlement negotiations, delivering post-dated cheques, and corresponding with the respondent's attorneys, negated his assertion that he mistakenly believed the summons had been handed to his attorney. The applicant failed to establish good cause for his default and was found to be in wilful default. As the absence of wilful default is a fundamental requirement for rescission, the application was dismissed without consideration of further issues.

Court Disposition

Application for rescission of judgment dismissed with costs.

Orders

  • The application for rescission of judgment is dismissed with costs.