LLR Properties (Pty) Ltd and Another v Sasfin Bank Ltd and Another (2020/10763) [2021] ZAGPJHC 851 (23 July 2021)

LLR Properties (Pty) Ltd and Another v Sasfin Bank Ltd and Another (2020/10763) [2021] ZAGPJHC 851 (23 July 2021)

The court found that it had exercised its discretion on an erroneous basis by assuming that the applicants were required to show a bona fide defence when seeking rescission of judgment based on procedural irregularity in service. The relevant Supreme Court of Appeal authorities establish that rescission may be granted under Rule 42(1)(a) where service was effected at an incorrect address, without the need for a bona fide defence. Although the respondents argued that service was proper according to the contractual terms, the court determined that the applicants had demonstrated reasonable prospects of success on appeal, warranting leave to appeal to the Full Bench.

Citation
[2021] ZAGPJHC 851
Parties
Applicant: LLR Properties (Pty) Ltd; Applicant: Ramatshila-Mugeri:Lufuno, Leslie; Respondent: Sasfin Bank Ltd; Respondent: Sunlin (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 July 2021
Case Number
2020/10763
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Dismissal of Rescission Application
Outcome
Leave to appeal granted to the Full Bench against the whole of the judgment granted on 24 May 2021.
Judges
Johann Gautschi
Legal Topics
Rescission of Judgment, Service of Process, Uniform Rule 42, Bona Fide Defence, Default Judgment
Civil Procedure Rescission of Judgment Service of Process Uniform Rule 42 Bona Fide Defence Default Judgment

Case Brief

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Parties

LLR Properties (Pty) Ltd

Applicant

Ramatshila-Mugeri:Lufuno, Leslie

Applicant

Sasfin Bank Ltd

Respondent

Sunlin (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Dismissal of Rescission Application

Legal Issues

  1. 1 Whether service of summons at an incorrect address justified rescission of the default judgment under Rule 42(1)(a).
  2. 2 Whether the applicants were required to show a bona fide defence when seeking rescission based on procedural irregularity.
  3. 3 Whether the court exercised its discretion on an erroneous basis regarding the need for a bona fide defence.

Ratio Decidendi

The court found that it had exercised its discretion on an erroneous basis by assuming that the applicants were required to show a bona fide defence when seeking rescission of judgment based on procedural irregularity in service. The relevant Supreme Court of Appeal authorities establish that rescission may be granted under Rule 42(1)(a) where service was effected at an incorrect address, without the need for a bona fide defence. Although the respondents argued that service was proper according to the contractual terms, the court determined that the applicants had demonstrated reasonable prospects of success on appeal, warranting leave to appeal to the Full Bench.

Court Disposition

Leave to appeal granted to the Full Bench against the whole of the judgment granted on 24 May 2021.

Orders

  • Leave to appeal is granted to the Full Bench against the whole of the judgment granted in this matter on 24 May 2021.
  • The costs of this application, including the costs of counsel, are reserved for the hearing of the Full Bench hearing this appeal.