Somasiphula General Trading CC and Another v Van's Afslaers Gauteng (Pty) Ltd and Others (88160/2018) [2022] ZAGPPHC 345 (16 May 2022)

Somasiphula General Trading CC and Another v Van's Afslaers Gauteng (Pty) Ltd and Others (88160/2018) [2022] ZAGPPHC 345 (16 May 2022)

The court found that the applicants failed to provide a reasonable explanation for their default, as Mr. Mahlangu, a member of the applicant, had knowledge of the proceedings and failed to act. Service was properly effected at the registered address and chosen domicilium citandi et executandi, with personal service on a family member. The lack of authority defence was rejected, as Mr. Mahlangu acted as the face of the applicant and was clothed with ostensible authority. The suretyship defence was dismissed based on established case law that a member of a close corporation is a co-manager and may bind the corporation without spousal consent. The application for rescission was time-barred...

Citation
[2022] ZAGPPHC 345
Parties
Applicant: Somasiphula General Trading CC; Applicant: Linah Mumsy Mahlangu; Respondent: Van's Afslaers Gauteng (Pty) Ltd; Respondent: M J Mahlangu; Respondent: Trustees from time to time of the Adriaan Fisher Trust
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 May 2022
Case Number
88160/2018
Procedural Posture
Recission Application / Judgment on Application for Rescission of Default Judgment and Intervention
Outcome
The intervention application is granted; the rescission application is dismissed with costs.
Judges
AC Basson
Legal Topics
Recission of Default Judgment, Close Corporation Authority, Service of Process, Suretyship in Close Corporations
Civil Procedure Commercial and Corporate Recission of Default Judgment Close Corporation Authority Service of Process Suretyship in Close Corporations

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Parties

Somasiphula General Trading CC

Applicant

Linah Mumsy Mahlangu

Applicant

Van's Afslaers Gauteng (Pty) Ltd

Respondent

M J Mahlangu

Respondent

Trustees from time to time of the Adriaan Fisher Trust

Respondent

Procedural Posture

Recission Application / Judgment on Application for Rescission of Default Judgment and Intervention

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment.
  2. 2 Whether there was proper service of summons and particulars of claim on the applicant.
  3. 3 Whether Mr. Mahlangu had authority to bind the applicant in the transactions.

Ratio Decidendi

The court found that the applicants failed to provide a reasonable explanation for their default, as Mr. Mahlangu, a member of the applicant, had knowledge of the proceedings and failed to act. Service was properly effected at the registered address and chosen domicilium citandi et executandi, with personal service on a family member. The lack of authority defence was rejected, as Mr. Mahlangu acted as the face of the applicant and was clothed with ostensible authority. The suretyship defence was dismissed based on established case law that a member of a close corporation is a co-manager and may bind the corporation without spousal consent. The application for rescission was time-barred...

Court Disposition

The intervention application is granted; the rescission application is dismissed with costs.

Orders

  • The applicant is granted leave to intervene as the second applicant in the rescission application instituted under case number 88160/2018.
  • The accompanying affidavit of Linah Mumsy Mahlangu is used as the second applicant's affidavit in support of the rescission application.