Tower Construction CC v van der Walt and Another (27659/2010) [2012] ZAWCHC 197 (20 November 2012)

Tower Construction CC v van der Walt and Another (27659/2010) [2012] ZAWCHC 197 (20 November 2012)

The court found that the applicants' delay in filing their plea and failure to attend to the Rule 31(5)(a) application was not due to wilful default or gross negligence, but rather to a mistaken assumption and attorney's absence. The applicants demonstrated a firm intention to defend the matter and took steps to do so. The founding affidavit incorporated the defence set out in the opposing affidavit to the summary judgment application and the plea and counterclaim, which included allegations of defective workmanship, non-compliance with the building agreement, and the applicability of an arbitration clause. The court held that the applicants had shown good cause for rescission, as they...

Citation
[2012] ZAWCHC 197
Parties
Applicant: Tower Construction CC; Respondent: Anneke van der Walt; Respondent: Hugo Ernst Lodewikus
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 November 2012
Case Number
27659/2010
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment Under Rule 31(2)(b)
Outcome
Application for rescission of default judgment granted. Default judgment rescinded; Notice of Bar removed; applicants' plea and counterclaim received; respondent to pay costs.
Judges
Mansingh
Legal Topics
Rescission of Default Judgment, Removal of Bar, Bona Fide Defence, Rule 31 Uniform Rules, Arbitration Clause
Civil Procedure Rescission of Default Judgment Removal of Bar Bona Fide Defence Rule 31 Uniform Rules Arbitration Clause

Case Brief

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Parties

Tower Construction CC

Applicant

Anneke van der Walt

Respondent

Hugo Ernst Lodewikus

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment Under Rule 31(2)(b)

Legal Issues

  1. 1 Whether the applicants have shown good cause for rescission of the default judgment granted on 10 July 2012.
  2. 2 Whether the applicants have provided a satisfactory explanation for their default and delay in filing their plea.
  3. 3 Whether the applicants have established a bona fide defence to the respondent's claim.

Ratio Decidendi

The court found that the applicants' delay in filing their plea and failure to attend to the Rule 31(5)(a) application was not due to wilful default or gross negligence, but rather to a mistaken assumption and attorney's absence. The applicants demonstrated a firm intention to defend the matter and took steps to do so. The founding affidavit incorporated the defence set out in the opposing affidavit to the summary judgment application and the plea and counterclaim, which included allegations of defective workmanship, non-compliance with the building agreement, and the applicability of an arbitration clause. The court held that the applicants had shown good cause for rescission, as they...

Court Disposition

Application for rescission of default judgment granted. Default judgment rescinded; Notice of Bar removed; applicants' plea and counterclaim received; respondent to pay costs.

Orders

  • The default judgment granted against the applicants by this Honourable Court under case number 27659/2010 on 10 July 2012 is rescinded.
  • The Notice of Bar for the filing of a Plea, under which the applicants have been placed, the dies of which expired on 21 May 2012, is removed.