Samuels and Others v MacMillan (697/2010) [2013] ZAKZDHC 40 (26 August 2013)

Samuels and Others v MacMillan (697/2010) [2013] ZAKZDHC 40 (26 August 2013)

The court held that the respondent's failure to make discovery prior to trial did not render the judgment erroneously sought or granted. The applicants did not raise the issue of discovery to prevent the respondent from leading evidence, but rather sought an adjournment, which was refused. The subsequent withdrawal of their legal representatives did not make the respondent's non-compliance with discovery relevant to the granting of judgment. The consequences of non-discovery relate to evidentiary and cost matters, not to the validity of the judgment itself. There was no mistake common to the parties, and the judgment was not erroneously granted. Accordingly, the application for rescission...

Citation
[2013] ZAKZDHC 40
Parties
Applicant: Disarie Gladys Samuels; Applicant: Harry John Richard Fouche; Applicant: Cederick Shelton Samuels; Respondent: William Lawson MacMillan
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
26 August 2013
Case Number
697/2010
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Judgment
Outcome
Application for rescission dismissed with costs.
Judges
Lopes
Legal Topics
Rescission of Judgment, Uniform Rules of Court, Discovery Procedure, Default Judgment
Civil Procedure Rescission of Judgment Uniform Rules of Court Discovery Procedure Default Judgment

Case Brief

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Parties

Disarie Gladys Samuels

Applicant

Harry John Richard Fouche

Applicant

Cederick Shelton Samuels

Applicant

William Lawson MacMillan

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Judgment

Legal Issues

  1. 1 Whether the judgment granted by Vahed J should be rescinded under Rule 42(1)(a) or (c) of the Uniform Rules of Court.
  2. 2 Whether the respondent's failure to comply with Rule 37(1) regarding discovery rendered the judgment erroneously sought or granted.
  3. 3 Whether the judgment was granted as a result of a mistake common to the parties.

Ratio Decidendi

The court held that the respondent's failure to make discovery prior to trial did not render the judgment erroneously sought or granted. The applicants did not raise the issue of discovery to prevent the respondent from leading evidence, but rather sought an adjournment, which was refused. The subsequent withdrawal of their legal representatives did not make the respondent's non-compliance with discovery relevant to the granting of judgment. The consequences of non-discovery relate to evidentiary and cost matters, not to the validity of the judgment itself. There was no mistake common to the parties, and the judgment was not erroneously granted. Accordingly, the application for rescission...

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission is dismissed with costs.