Samwol Properties (Pty) Ltd v Nedbank Limited (25048/17) [2019] ZAGPPHC 1064 (12 September 2019)

Samwol Properties (Pty) Ltd v Nedbank Limited (25048/17) [2019] ZAGPPHC 1064 (12 September 2019)

The court found that the default judgment was not erroneously granted within the meaning of Rule 42(1)(a). The applicant and other parties were properly served, aware of the proceedings, and chose not to defend or appear. The existence of a final winding-up order at the time of judgment was not known to any party and was subsequently set aside by agreement, restoring the applicant's status. The statutory suspension of proceedings under section 359(1)(a) of the Companies Act is a dilatory defence, not a procedural irregularity. As such, the requirements for rescission under Rule 42(1)(a) were not met, and the application could not succeed.

Citation
[2019] ZAGPPHC 1064
Parties
Applicant: Samwol Properties (Pty) Ltd; Respondent: Nedbank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 September 2019
Case Number
25048/17
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment Under Rule 42(1)(a)
Outcome
Application for rescission dismissed with costs on attorney and client scale.
Judges
C J van der Westhuizen
Legal Topics
Rescission of Judgment, Uniform Rules of Court, Default Judgment, Winding Up Proceedings, Companies Act, Attorney and Client Costs
Civil Procedure Commercial and Corporate Rescission of Judgment Uniform Rules of Court Default Judgment Winding Up Proceedings Companies Act Attorney and Client Costs

Case Brief

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Parties

Samwol Properties (Pty) Ltd

Applicant

Nedbank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment Under Rule 42(1)(a)

Legal Issues

  1. 1 Whether the default judgment granted on 26 July 2017 was erroneously sought or granted in terms of Rule 42(1)(a).
  2. 2 Whether the existence of a final winding-up order at the time of judgment constitutes a procedural error justifying rescission.
  3. 3 Whether section 359(1)(a) of the Companies Act operates as a defence to the granting of default judgment.

Ratio Decidendi

The court found that the default judgment was not erroneously granted within the meaning of Rule 42(1)(a). The applicant and other parties were properly served, aware of the proceedings, and chose not to defend or appear. The existence of a final winding-up order at the time of judgment was not known to any party and was subsequently set aside by agreement, restoring the applicant's status. The statutory suspension of proceedings under section 359(1)(a) of the Companies Act is a dilatory defence, not a procedural irregularity. As such, the requirements for rescission under Rule 42(1)(a) were not met, and the application could not succeed.

Court Disposition

Application for rescission dismissed with costs on attorney and client scale.

Orders

  • The application for the rescission of the order of 26 July 2017 is dismissed.
  • The applicant is to pay the costs, such costs to be taxed upon the scale as between attorney and client.