Sithole and Another v Astfin Gauteng (Pty) Ltd and Another (3176/2016) [2019] ZAGPPHC 397 (21 August 2019)
- Citation
- [2019] ZAGPPHC 397
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Andrews
- Case number
- 3176/2016
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Andrews
- Case number
- 3176/2016
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicants failed to establish any error on the part of Justice Maumela and did not provide a reasonable explanation for the significant delay in bringing the rescission application. The delay of almost one and a half years indicated a lack of bona fides and seriousness in pursuing the application. Furthermore, the defence regarding improper service was rejected, as service was effected at the address chosen by the applicants as their domicilium citandi, and they had not taken any steps to change it. Accordingly, the application for rescission was dismissed with costs.
Court disposition
Application for rescission dismissed with costs.
Orders
- The application for rescission of the order of Justice Maumela dated 7 April 2016 is dismissed with costs.
02
Material facts
Parties
Goodwill Sikhukhula Sithole
Applicant Counsel: Advocate BaloyiSolid Glory Security and Consultant CC
Applicant Counsel: Advocate BaloyiAstfin Gauteng (Pty) Ltd t/a Assetfin
Respondent Counsel: Advocate WildenboerSheriff Wonderboom
Respondent03
Procedural history
Posture
Review Application / Application for Rescission of Judgment
04
Questions and positions
Legal issues
- 01
Whether the applicants established an error on the part of Justice Maumela justifying rescission of judgment.
- 02
Whether the delay of almost one and a half years in launching the rescission application was justified.
- 03
Whether service at the chosen domicilium citandi was proper and valid.
Party arguments
- Applicant
- The applicants argued that there was an error in the judgment of Justice Maumela and that proper service was not effected at their domicilium citandi. They contended that these procedural defects warranted rescission of the order granted against them.
- Respondent
- The respondents maintained that service was properly effected at the address chosen by the applicants as their domicilium citandi and that the applicants failed to take any steps to change this address. They further argued that the applicants' delay of almost one and a half years in bringing the rescission application demonstrated a lack of bona fides and seriousness.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 31(2)(b)
An application for rescission under Rule 31(2)(b) of the Uniform Rules of Court requires the applicant to show a bona fide defence and a reasonable explanation for the default.
- 02
Standard principles of service in South African civil procedure
Service at the domicilium citandi chosen by a party is valid unless the party takes steps to change the address.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicants failed to establish any error on the part of Justice Maumela and did not provide a reasonable explanation for the significant delay in bringing the rescission application. The delay of almost one and a half years indicated a lack of bona fides and seriousness in pursuing the application. Furthermore, the defence regarding improper service was rejected, as service was effected at the address chosen by the applicants as their domicilium citandi, and they had not taken any steps to change it. Accordingly, the application for rescission was dismissed with costs.
Obiter and limits
- The court noted that parties must act promptly and with bona fides when seeking rescission of judgment.
- The choice of domicilium citandi carries procedural consequences, and parties must ensure their chosen address is current and accurate.
Court disposition
Application for rescission dismissed with costs.
- The application for rescission of the order of Justice Maumela dated 7 April 2016 is dismissed with costs.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
NO
CASE NO: 3176/2016
21/8/2019
In the matter between:
GOODWILL
SIKHUKHULA
SITHOLE
First Applicant
SOLID
GLORY SECURITY AND
CONSULTANT CC
Second Applicant
and
ASTFIN GAUTENG (PTY) LTD
t/a
ASSETFIN
First Respondent
SHERIFF
WONDERBOOM
Second Respondent
JUDGMENT
ANDREWS, AJ
Having heard counsel and having read the papers filed of record
[1] The Applicants have failed to establish an error on the part of Justice Maumela and in accordance with Rule 31 (2) (b) of the Uniform Rules of Court. The applicants delayed for almost one and half years before launching this application for rescission. That of it itself in these circumstances is an indication of the applicants' lack of bona fides to pursue the application with any degree of seriousness.
[2] The defence that there was not proper service on the domicilium citandi is also without merit. It is an address chosen by the applicants.
They took no steps to change the domiciium address with the respondent.
[3] In the result
The application for rescission of the order of the Honourable Justice Maumela which was made on 7th April, 2016 is dismissed with costs.
P
E ANDREWS
ACTING
JUDGE OF THE HIGH COURT
Heard on
: 21 August 2018
On Behalf of the Applicant : Advocate Baloyi
On Behalf of the Respondent :Advocate Wildenboer
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