Select M Stores (Pty) Ltd v ADIDAS South Africa (Pty) Ltd (2545/2022) [2024] ZAGPJHC 1294 (19 December 2024)

Select M Stores (Pty) Ltd v ADIDAS South Africa (Pty) Ltd (2545/2022) [2024] ZAGPJHC 1294 (19 December 2024)

The applicant failed to demonstrate a bona fide defence or a reasonable explanation for its default. The court found that business rescue proceedings had not commenced as required by the Companies Act, since the necessary service and notification steps were not properly effected and no court order had been granted. The service of summons was deemed proper, as it was effected at the address used by the applicant in its own business rescue application and confirmed by CIPC records. The applicant's attempt to rely on a change of address was rejected, as the change was effected after the relevant events and did not comply with statutory requirements. The application for rescission was found...

Citation
[2024] ZAGPJHC 1294
Parties
Applicant: Select M Stores (Pty) Ltd; Respondent: ADIDAS South Africa (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 December 2024
Case Number
2545/2022
Procedural Posture
Rescission Application / Opposed Application for Rescission of Default Judgment Under Rule 42(1)(a)
Outcome
Application for rescission of judgment dismissed with costs on attorney and client scale.
Judges
P N Manamela
Legal Topics
Rescission of Judgment, Service of Process, Business Rescue Moratorium, Contractual Liability, Attorney and Client Costs
Civil Procedure Commercial and Corporate Rescission of Judgment Service of Process Business Rescue Moratorium Contractual Liability Attorney and Client Costs

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Parties

Select M Stores (Pty) Ltd

Applicant

ADIDAS South Africa (Pty) Ltd

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the applicant has made out a case for rescission of judgment in terms of rule 42(1)(a) of the Uniform Rules of Court.
  2. 2 Whether summons was properly served on the applicant in compliance with the Rules.
  3. 3 Whether business rescue proceedings had commenced and a statutory moratorium on legal action applied to the applicant.

Ratio Decidendi

The applicant failed to demonstrate a bona fide defence or a reasonable explanation for its default. The court found that business rescue proceedings had not commenced as required by the Companies Act, since the necessary service and notification steps were not properly effected and no court order had been granted. The service of summons was deemed proper, as it was effected at the address used by the applicant in its own business rescue application and confirmed by CIPC records. The applicant's attempt to rely on a change of address was rejected, as the change was effected after the relevant events and did not comply with statutory requirements. The application for rescission was found...

Court Disposition

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

Orders

  • The application for rescission of judgment is dismissed with costs on attorney and client’s scale.