RZT Zelpy 5073 (Pty) Ltd and Others v Mjono's Tours CC (16532/2008) [2011] ZAKZDHC 18 (9 March 2011)

RZT Zelpy 5073 (Pty) Ltd and Others v Mjono's Tours CC (16532/2008) [2011] ZAKZDHC 18 (9 March 2011)

The court found that the applicants had shown sufficient cause for rescission under the common law. The second applicant provided a reasonable explanation for default, namely lack of knowledge of the proceedings and improper service. The applicants raised bona fide defences with prospects of success: the first and third applicants were not parties to the contract, and the second applicant's alleged undertaking to repay was made under duress, potentially rendering the contract voidable. The respondent's founding affidavit lacked sufficient particularity regarding the contract. The interests of justice and fairness dictated that the default judgment should be rescinded. The court declined...

Citation
[2011] ZAKZDHC 18
Parties
Applicant: RZT Zelpy 5073 (Pty) Ltd; Applicant: Thembinkosi Mandla Leonard Malevu; Applicant: Malevu Investments CC; Respondent: Mjono's Tours CC
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
9 March 2011
Case Number
16532/2008
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment rescinded.
Judges
Gorven
Legal Topics
Rescission of Judgment, Default Judgment, Bona Fide Defence, Duress, Contractual Liability
Civil Procedure Commercial and Corporate Rescission of Judgment Default Judgment Bona Fide Defence Duress Contractual Liability

Case Brief

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Parties

RZT Zelpy 5073 (Pty) Ltd

Applicant

Thembinkosi Mandla Leonard Malevu

Applicant

Malevu Investments CC

Applicant

Mjono's Tours CC

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the order was erroneously granted within the meaning of Uniform rule 42(1)(a).
  2. 2 Whether the applicants have shown sufficient cause for rescission under the common law.

Ratio Decidendi

The court found that the applicants had shown sufficient cause for rescission under the common law. The second applicant provided a reasonable explanation for default, namely lack of knowledge of the proceedings and improper service. The applicants raised bona fide defences with prospects of success: the first and third applicants were not parties to the contract, and the second applicant's alleged undertaking to repay was made under duress, potentially rendering the contract voidable. The respondent's founding affidavit lacked sufficient particularity regarding the contract. The interests of justice and fairness dictated that the default judgment should be rescinded. The court declined...

Court Disposition

Application for rescission granted; default judgment rescinded.

Orders

  • The order of this court granted on 5 March 2009 in favour of the respondent against the applicants jointly and severally is rescinded.
  • The notice of motion in the main application shall stand as a simple summons in an action between the parties.