Tibane Masjianoke Trading v Ras and Another (81006/2015) [2017] ZAGPPHC 407 (24 February 2017)

Tibane Masjianoke Trading v Ras and Another (81006/2015) [2017] ZAGPPHC 407 (24 February 2017)

The court found that the applicant failed to provide a reasonable explanation for its default, as the Sheriff's return of service and supporting affidavit established that service was properly effected at the chosen domicilium. The applicant's denial of the agreements and receipt of funds was not credible, given the existence of a registered mortgage bond in favour of the respondents as security for the loan. The applicant did not adequately explain how the mortgage bond was passed if no agreement existed. Furthermore, the applicant failed to make out a bona fide defence with prospects of success. The application was not bona fide and amounted to a delaying tactic. Accordingly, the...

Citation
[2017] ZAGPPHC 407
Parties
Applicant: Tibane Masjianoke Trading; Respondent: Anton Ras; Respondent: Judith Ras
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 February 2017
Case Number
81006/2015
Procedural Posture
Rescission Application / Application to Rescind Default Judgment
Outcome
Application to rescind the default judgment is dismissed with costs.
Judges
Molahlehi
Legal Topics
Rescission of Judgment, Default Judgment, Service of Process, Bona Fide Defence
Civil Procedure Rescission of Judgment Default Judgment Service of Process Bona Fide Defence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Tibane Masjianoke Trading

Applicant

Anton Ras

Respondent

Judith Ras

Respondent

Procedural Posture

Rescission Application / Application to Rescind Default Judgment

Legal Issues

  1. 1 Whether the applicant provided a reasonable explanation for its default in failing to oppose the claim.
  2. 2 Whether the applicant was in wilful default or grossly negligent.
  3. 3 Whether the applicant has a bona fide defence to the respondents' claim.

Ratio Decidendi

The court found that the applicant failed to provide a reasonable explanation for its default, as the Sheriff's return of service and supporting affidavit established that service was properly effected at the chosen domicilium. The applicant's denial of the agreements and receipt of funds was not credible, given the existence of a registered mortgage bond in favour of the respondents as security for the loan. The applicant did not adequately explain how the mortgage bond was passed if no agreement existed. Furthermore, the applicant failed to make out a bona fide defence with prospects of success. The application was not bona fide and amounted to a delaying tactic. Accordingly, the...

Court Disposition

Application to rescind the default judgment is dismissed with costs.

Orders

  • The applicant's application to rescind the default judgment made on 18 February 2016 is dismissed with costs.