Van Den Berg v Sayers N.O and Another (2645/2015) [2016] ZAGPPHC 845 (15 September 2016)

Van Den Berg v Sayers N.O and Another (2645/2015) [2016] ZAGPPHC 845 (15 September 2016)

The court found that the applicant provided a reasonable explanation for his failure to defend the action, as he was not aware of the summons being served at his previous address. The particulars of claim were ambiguous and contradictory regarding whether the oral lease agreement was a renewal/extension of the written lease or a separate agreement. The suretyship was intended to cover the written lease and any valid extensions or renewals, but the written lease contained a non-variation clause requiring any extension or renewal to be in writing and signed. No such written extension existed. The applicant denied entering into any oral lease or extension, and this denial constituted a bona...

Citation
[2016] ZAGPPHC 845
Parties
Applicant: Jacques Van Den Berg; Respondent: John Meyrick Wiliam Sayers N.O; Respondent: Tessa Marion Sayers N.O
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 September 2016
Case Number
2645/2015
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Default judgment rescinded and set aside; costs awarded against respondents.
Judges
De Vos
Legal Topics
Rescission of Judgment, Suretyship Liability, Oral Lease Agreement, Service of Process, Technical Defence, Contractual Variation
Civil Procedure Land and Property Rescission of Judgment Suretyship Liability Oral Lease Agreement Service of Process Technical Defence Contractual Variation

Case Brief

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Parties

Jacques Van Den Berg

Applicant

John Meyrick Wiliam Sayers N.O

Respondent

Tessa Marion Sayers N.O

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the suretyship signed by the applicant in respect of a written lease agreement extended to an oral lease agreement concluded thereafter.
  2. 2 Whether the applicant was properly served with summons at his chosen domicilium citandi et executandi.
  3. 3 Whether the applicant has shown good cause and a bona fide defence for rescission of the default judgment.

Ratio Decidendi

The court found that the applicant provided a reasonable explanation for his failure to defend the action, as he was not aware of the summons being served at his previous address. The particulars of claim were ambiguous and contradictory regarding whether the oral lease agreement was a renewal/extension of the written lease or a separate agreement. The suretyship was intended to cover the written lease and any valid extensions or renewals, but the written lease contained a non-variation clause requiring any extension or renewal to be in writing and signed. No such written extension existed. The applicant denied entering into any oral lease or extension, and this denial constituted a bona...

Court Disposition

Default judgment rescinded and set aside; costs awarded against respondents.

Orders

  • The default judgment granted on 22 June 2015 against the applicant is rescinded and set aside.
  • The first and second respondents are ordered to pay the costs of this application; the one paying, the other to be absolved.