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South Africa Judgment

North Gauteng High Court, Pretoria

Sithole and Another v Astfin Gauteng (Pty) Ltd and Another (3176/2016) [2019] ZAGPPHC 397 (21 August 2019)

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Source document

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 Baloyi

Solid Glory Security and Consultant CC

Applicant Counsel: Advocate Baloyi

Astfin Gauteng (Pty) Ltd t/a Assetfin

Respondent Counsel: Advocate Wildenboer

Sheriff Wonderboom

Respondent

03

Procedural history

  1. Posture

    Review Application / Application for Rescission of Judgment

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment reading view

Judgment text

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Source document

North Gauteng High Court, Pretoria

Judgment

[2019] ZAGPPHC 397

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

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Uniform Rules of Court, Rule 31(2)(b)

Legislation

Legislation referenced in the available case record.

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