Scholtz and Another v Merryweather and Others (7965/2009) [2014] ZAWCHC 116; 2014 (6) SA 90 (WCC) (1 August 2014)

Scholtz and Another v Merryweather and Others (7965/2009) [2014] ZAWCHC 116; 2014 (6) SA 90 (WCC) (1 August 2014)

The court found that the applicants failed to provide a reasonable and credible explanation for their default, having been aware of the proceedings and intentionally choosing not to defend. Their reliance on informal legal advice and deliberate withholding of information was found to be indicative of wilful default and a lack of bona fides. The applicants' asserted defence of self-defence and challenge to quantum were not supported by sufficient evidence to establish prospects of success. The prejudice to the respondent, including substantial legal and expert costs and the risk of further delay, outweighed any prejudice to the applicants. The father, as the real party controlling and...

Citation
[2014] ZAWCHC 116
Parties
Applicant: Oliver Bradley Scholtz; Applicant: Gerard David Peter Scholtz; Respondent: Andrew Merryweather; Respondent: Nicholas Merryweather; Respondent: Joel Thackwray; Respondent: Liam Hechter
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 August 2014
Case Number
7965/2009
Procedural Posture
Rescission Application / Application for Rescission of Default Judgments on Merits and Quantum
Outcome
Application for rescission dismissed with costs, such costs to be borne by the first and second applicants jointly and severally.
Judges
Gamble
Legal Topics
Rescission of Judgment, Wilful Default, Bona Fide Defence, Substituted Service, Quantum of Damages, Costs Orders
Civil Procedure Delict Rescission of Judgment Wilful Default Bona Fide Defence Substituted Service Quantum of Damages Costs Orders

Case Brief

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Parties

Oliver Bradley Scholtz

Applicant

Gerard David Peter Scholtz

Applicant

Andrew Merryweather

Respondent

Nicholas Merryweather

Respondent

Joel Thackwray

Respondent

Liam Hechter

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgments on Merits and Quantum

Legal Issues

  1. 1 Whether the applicants have shown good or sufficient cause for rescission of the default judgments granted against them.
  2. 2 Whether the applicants provided a reasonable explanation for their default and have a bona fide defence with prospects of success.
  3. 3 Whether the substituted service of summons was irregular and prejudicial to the applicants.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable and credible explanation for their default, having been aware of the proceedings and intentionally choosing not to defend. Their reliance on informal legal advice and deliberate withholding of information was found to be indicative of wilful default and a lack of bona fides. The applicants' asserted defence of self-defence and challenge to quantum were not supported by sufficient evidence to establish prospects of success. The prejudice to the respondent, including substantial legal and expert costs and the risk of further delay, outweighed any prejudice to the applicants. The father, as the real party controlling and...

Court Disposition

Application for rescission dismissed with costs, such costs to be borne by the first and second applicants jointly and severally.

Orders

  • The application for rescission of the judgments of Olivier AJ and Smit AJ is dismissed.
  • The costs of the application are to be borne by the first and second applicants jointly and severally, on the ordinary scale.