Sasfin Bank Ltd and Another v Melamed and Hurwitz Incorporated and Another (31948/19) [2022] ZAGPPHC 620 (24 August 2022)

Sasfin Bank Ltd and Another v Melamed and Hurwitz Incorporated and Another (31948/19) [2022] ZAGPPHC 620 (24 August 2022)

The court found that the Applicants failed to bring the rescission application within a reasonable time and did not provide a proper explanation for their delay. The attorney's assumption that the matter was at an end was not a valid explanation. The Applicants did not provide sufficient detail regarding their change of address or arrangements for receiving legal documents. The alleged deficiencies in the particulars of claim did not render the judgment erroneously granted, as they were not matters the court would have observed mero motu. The Applicants also failed to show a bona fide defence. The application appeared intended to delay the Respondent's claim rather than to ventilate...

Citation
[2022] ZAGPPHC 620
Parties
Plaintiff: Sasfin Bank Ltd; Plaintiff: Sunlyn (Pty) Ltd; Defendant: Melamed and Hurwitz Incorporated; Defendant: Stephen Melamed
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 August 2022
Case Number
31948/19
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed; warrant of execution set aside; costs awarded to Respondent.
Judges
Todd
Legal Topics
Rescission of Judgment, Default Judgment, Service of Process, Condonation for Late Filing
Civil Procedure Rescission of Judgment Default Judgment Service of Process Condonation for Late Filing

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Parties

Sasfin Bank Ltd

Plaintiff

Sunlyn (Pty) Ltd

Plaintiff

Melamed and Hurwitz Incorporated

Defendant

Stephen Melamed

Defendant

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

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 default judgment was erroneously granted as contemplated by Rule 42.

Ratio Decidendi

The court found that the Applicants failed to bring the rescission application within a reasonable time and did not provide a proper explanation for their delay. The attorney's assumption that the matter was at an end was not a valid explanation. The Applicants did not provide sufficient detail regarding their change of address or arrangements for receiving legal documents. The alleged deficiencies in the particulars of claim did not render the judgment erroneously granted, as they were not matters the court would have observed mero motu. The Applicants also failed to show a bona fide defence. The application appeared intended to delay the Respondent's claim rather than to ventilate...

Court Disposition

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