Smith and Another v Sheriff Cape Town North and Others (6810/2021) [2023] ZAWCHC 309 (29 November 2023)

Smith and Another v Sheriff Cape Town North and Others (6810/2021) [2023] ZAWCHC 309 (29 November 2023)

The court found that there was non-compliance with Rule 31(4) as no Notice of Set Down was served on the applicants prior to the granting of default judgment. Rule 31(4) is peremptory, and the absence of such notice constitutes a procedural defect unless condonation is sought and granted, which did not occur in this case. The respondents' assertion that condonation was granted was based on hearsay and not supported by admissible evidence. Furthermore, the evidence regarding service of the Notice of Bar was insufficient and largely hearsay, with no confirmatory affidavit from the messenger who allegedly served the notice. The applicants were deprived of the opportunity to present their...

Citation
[2023] ZAWCHC 309
Parties
Applicant: Peter Geoffrey Smith; Applicant: Irene Susan Smith; Respondent: Sheriff Cape Town North; Respondent: Giulio Di Giannatale; Respondent: Zelda Di Giannatale
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 November 2023
Case Number
6810/2021
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Default judgment rescinded and set aside; applicants granted leave to plead; costs awarded to applicants.
Judges
K Pillay
Legal Topics
Rescission of Default Judgment, Service of Process, Notice of Bar, Rule 31 4 Non Compliance, Rule 42 1 a, Condonation of Irregular Service
Civil Procedure Land and Property Rescission of Default Judgment Service of Process Notice of Bar Rule 31 4 Non Compliance Rule 42 1 a Condonation of Irregular Service

Case Brief

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Parties

Peter Geoffrey Smith

Applicant

Irene Susan Smith

Applicant

Sheriff Cape Town North

Respondent

Giulio Di Giannatale

Respondent

Zelda Di Giannatale

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 17 August 2022 should be rescinded due to non-compliance with Rule 31(4).
  2. 2 Whether the Notice of Bar was properly served on the applicants' attorneys.
  3. 3 Whether condonation for non-compliance with Rule 31(4) was sought or granted.

Ratio Decidendi

The court found that there was non-compliance with Rule 31(4) as no Notice of Set Down was served on the applicants prior to the granting of default judgment. Rule 31(4) is peremptory, and the absence of such notice constitutes a procedural defect unless condonation is sought and granted, which did not occur in this case. The respondents' assertion that condonation was granted was based on hearsay and not supported by admissible evidence. Furthermore, the evidence regarding service of the Notice of Bar was insufficient and largely hearsay, with no confirmatory affidavit from the messenger who allegedly served the notice. The applicants were deprived of the opportunity to present their...

Court Disposition

Default judgment rescinded and set aside; applicants granted leave to plead; costs awarded to applicants.

Orders

  • The default judgment granted against the applicants on 17 August 2022 under case number 6810/2021 is rescinded and set aside.
  • The applicants are granted leave within 15 days of the granting of this order to deliver a plea (with or without a claim in reconvention), an exception, or an application to strike out.