Ramaite and Another v Munaka General Trading (Pty) Ltd (In Liquidation) (8991/2017) [2019] ZAGPPHC 191 (29 May 2019)

Ramaite and Another v Munaka General Trading (Pty) Ltd (In Liquidation) (8991/2017) [2019] ZAGPPHC 191 (29 May 2019)

The court found that the applicants were not in wilful default, as their absence was due to the negligence of their attorney's staff. However, the summary judgment was not erroneously sought or granted within the meaning of Rule 42(1)(a), as the presiding judge had jurisdiction and considered the opposing affidavit. Rule 31(2)(b) was not applicable because the summary judgment was opposed. Under the common law, rescission is only available in cases of fraud or justus error, which were not present in this case. The applicants' challenge was essentially an appeal against the correctness of the summary judgment, not a proper basis for rescission. Accordingly, the application for rescission...

Citation
[2019] ZAGPPHC 191
Parties
Applicant: Thendo Geraldine Ramaite; Applicant: Muthanyi Robinson Ramaite; Respondent: Munaka General Trading (Pty) Ltd (In Liquidation)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 May 2019
Case Number
8991/2017
Procedural Posture
Rescission Application / Application for Rescission of Summary Judgment
Outcome
Application for rescission dismissed with costs.
Judges
HF Jacobs
Legal Topics
Rescission of Judgment, Summary Judgment, Rule 42, Wilful Default, Common Law Rescission
Civil Procedure Rescission of Judgment Summary Judgment Rule 42 Wilful Default Common Law Rescission

Case Brief

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Parties

Thendo Geraldine Ramaite

Applicant

Muthanyi Robinson Ramaite

Applicant

Munaka General Trading (Pty) Ltd (In Liquidation)

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Summary Judgment

Legal Issues

  1. 1 Whether the summary judgment granted against the applicants should be rescinded under Rule 42, Rule 31(2)(b), or the common law.
  2. 2 Whether the applicants were in wilful default for not attending the summary judgment hearing.
  3. 3 Whether the summary judgment was erroneously sought or granted within the meaning of Rule 42(1)(a).

Ratio Decidendi

The court found that the applicants were not in wilful default, as their absence was due to the negligence of their attorney's staff. However, the summary judgment was not erroneously sought or granted within the meaning of Rule 42(1)(a), as the presiding judge had jurisdiction and considered the opposing affidavit. Rule 31(2)(b) was not applicable because the summary judgment was opposed. Under the common law, rescission is only available in cases of fraud or justus error, which were not present in this case. The applicants' challenge was essentially an appeal against the correctness of the summary judgment, not a proper basis for rescission. Accordingly, the application for rescission...

Court Disposition

Application for rescission dismissed with costs.

Orders

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