Sharma and Others v Mercantile Bank Limited (99918/2015) [2019] ZAGPPHC 1017 (12 December 2019)

Sharma and Others v Mercantile Bank Limited (99918/2015) [2019] ZAGPPHC 1017 (12 December 2019)

The court found that the applicants' default was not wilful but resulted from their attorney's error in communicating the incorrect trial date. There was no evidence that the applicants were notified of the correct date, and they denied receiving any such communication. The court held that the error was attributable to the attorney and not the applicants, and that the interests of justice required the rescission of the default judgment to allow the applicants to present their defence at trial.

Citation
[2019] ZAGPPHC 1017
Parties
Applicant: Sagar Sharma; Applicant: Anish Chandrakant Sharma; Applicant: Prakash Kumar Sharma; Respondent: Mercantile Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 December 2019
Case Number
99918/2015
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission granted; default judgment set aside.
Judges
P Mothle
Legal Topics
Rescission of Judgment, Wilful Default, Bona Fide Defence
Civil Procedure Rescission of Judgment Wilful Default Bona Fide Defence

Case Brief

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Parties

Sagar Sharma

Applicant

Anish Chandrakant Sharma

Applicant

Prakash Kumar Sharma

Applicant

Mercantile Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicants were in wilful default of appearance at trial.
  2. 2 Whether the error by the applicants' attorney constitutes sufficient grounds for rescission of the default judgment.
  3. 3 Whether the applicants have demonstrated a bona fide defence.

Ratio Decidendi

The court found that the applicants' default was not wilful but resulted from their attorney's error in communicating the incorrect trial date. There was no evidence that the applicants were notified of the correct date, and they denied receiving any such communication. The court held that the error was attributable to the attorney and not the applicants, and that the interests of justice required the rescission of the default judgment to allow the applicants to present their defence at trial.

Court Disposition

Application for rescission granted; default judgment set aside.

Orders

  • The default judgment granted on 13 February 2019 in favour of the respondent against the applicants is rescinded.
  • The costs of this application will be costs in the cause.