Stelmed CC v Union Drug (Pty) Ltd (591/2008) [2009] ZAKZDHC 36 (23 September 2009)

Stelmed CC v Union Drug (Pty) Ltd (591/2008) [2009] ZAKZDHC 36 (23 September 2009)

The applicant provided an acceptable explanation for its default, as it did not receive the summons and only learned of the judgment after the fact. However, the applicant failed to present a bona fide defence to the respondent's claim, as it did not directly address the respondent's documentary evidence of indebtedness and relied on a statement that did not account for the full debt. The court found that the applicant's defence was not bona fide and that the assault on the default judgment under common law must fail. Nevertheless, the respondent conceded that the judgment was erroneously granted for an amount exceeding the proven debt. Under Rule 42, the court is empowered to vary the...

Citation
[2009] ZAKZDHC 36
Parties
Applicant: Stelmed CC; Respondent: Union Drug (Pty) Limited
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
23 September 2009
Case Number
8591/2008
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission dismissed with costs; default judgment amended to reflect the correct amount.
Judges
Msimang
Legal Topics
Rescission of Default Judgment, Uniform Rules of Court Rule 42, Uniform Rules of Court Rule 31, Bona Fide Defence, Common Law Rescission
Civil Procedure Commercial and Corporate Rescission of Default Judgment Uniform Rules of Court Rule 42 Uniform Rules of Court Rule 31 Bona Fide Defence Common Law Rescission

Case Brief

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Parties

Stelmed CC

Applicant

Union Drug (Pty) Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant has shown sufficient cause for rescission of the default judgment under common law.
  2. 2 Whether the applicant has presented a bona fide defence with prospects of success.
  3. 3 Whether the default judgment was erroneously sought or granted under Rule 42.

Ratio Decidendi

The applicant provided an acceptable explanation for its default, as it did not receive the summons and only learned of the judgment after the fact. However, the applicant failed to present a bona fide defence to the respondent's claim, as it did not directly address the respondent's documentary evidence of indebtedness and relied on a statement that did not account for the full debt. The court found that the applicant's defence was not bona fide and that the assault on the default judgment under common law must fail. Nevertheless, the respondent conceded that the judgment was erroneously granted for an amount exceeding the proven debt. Under Rule 42, the court is empowered to vary the...

Court Disposition

Application for rescission dismissed with costs; default judgment amended to reflect the correct amount.

Orders

  • The application for rescission is dismissed with costs.
  • In terms of Rule 42, the order of the Registrar dated 15 August 2008 is amended by deleting the figure R166,706.29 and replacing it with R165,682.78.