SASFIN Bank Ltd and Another v Melamed and Hurwitz Incorporated and Another (31948/19) [2022] ZAGPJHC 618 (24 August 2022)

SASFIN Bank Ltd and Another v Melamed and Hurwitz Incorporated and Another (31948/19) [2022] ZAGPJHC 618 (24 August 2022)

The court found that the Applicants failed to bring the rescission application within a reasonable time after learning of the default judgment and provided no proper explanation for the delay. The attorney's mistaken belief that the matter was at an end did not constitute a reasonable explanation. The alleged deficiencies in the particulars of claim did not render the order erroneously granted under Rule 42, as they were not matters the court would have observed mero motu and would not have led to the dismissal of the claim without amendment. The Applicants did not provide a detailed and candid explanation for their default, nor did they show a bona fide defence. The application appeared...

Citation
[2022] ZAGPJHC 618
Parties
Respondent: SASFIN Bank Ltd; Respondent: SUNLYN (PTY) LTD; Applicant: Melamed and Hurwitz Incorporated; Applicant: Stephen Melamed
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 August 2022
Case Number
31948/19
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Setting Aside Warrant of Execution
Outcome
Application for rescission dismissed; warrant of execution set aside; costs awarded substantially to Respondent.
Judges
Todd
Legal Topics
Rescission of Judgment, Default Judgment, Rule 42, Rule 31 2 B, Service of Process, Condonation
Civil Procedure Rescission of Judgment Default Judgment Rule 42 Rule 31 2 B Service of Process Condonation

Case Brief

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Parties

SASFIN Bank Ltd

Respondent

SUNLYN (PTY) LTD

Respondent

Melamed and Hurwitz Incorporated

Applicant

Stephen Melamed

Applicant

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Setting Aside Warrant of Execution

Legal Issues

  1. 1 Whether the application for rescission of the default judgment was brought within a reasonable time.
  2. 2 Whether the Applicants provided a reasonable explanation for their default and delay.
  3. 3 Whether the particulars of claim were excipiable and rendered the order erroneously granted under Rule 42.

Ratio Decidendi

The court found that the Applicants failed to bring the rescission application within a reasonable time after learning of the default judgment and provided no proper explanation for the delay. The attorney's mistaken belief that the matter was at an end did not constitute a reasonable explanation. The alleged deficiencies in the particulars of claim did not render the order erroneously granted under Rule 42, as they were not matters the court would have observed mero motu and would not have led to the dismissal of the claim without amendment. The Applicants did not provide a detailed and candid explanation for their default, nor did they show a bona fide defence. The application appeared...

Court Disposition

Application for rescission dismissed; warrant of execution set aside; costs awarded substantially to Respondent.

Orders

  • The warrant of execution issued by the Registrar dated 8 April 2021 is set aside.
  • The application to rescind the default judgment order granted on 26 November 2019 is dismissed.