Van Jaarsveld and Others v Strydom and Another (2813/2010) [2011] ZAKZPHC 47 (5 October 2011)

Van Jaarsveld and Others v Strydom and Another (2813/2010) [2011] ZAKZPHC 47 (5 October 2011)

The court found that the application for rescission was brought more than six months after the judgment, which is unreasonable. The explanation for the delay, namely financial inability, was not credible and was only raised after challenge. The applicants had acquiesced in the judgment by making substantial payments and signing acknowledgments of debt without protest. The allegations of duress were unsupported and not raised in the founding affidavit. The failure to join the fourth defendant did not prejudice the Trust and was a mere technical defect. The applicants failed to establish good prospects of success or a bona fide defence. Consequently, both the application for condonation and...

Citation
[2011] ZAKZPHC 47
Parties
Applicant: Hendrik Johannes van Jaarsveld; Applicant: Hendrik Johannes van Jaarsveld N.O.; Applicant: Emmerentia Frederika van Jaarsveld N.O.; Applicant: Johannes Marthinus Steenkamp N.O.; Respondent: Samuel Jacobus Strydom; Respondent: Loretta Strydom
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
5 October 2011
Case Number
2813/2010
Procedural Posture
Urgent Application / Application for Rescission and Condonation Following Summary Judgment
Outcome
Application for condonation and rescission dismissed with costs.
Judges
Seegobin
Legal Topics
Rescission of Judgment, Condonation, Summary Judgment, Joinder of Parties
Civil Procedure Rescission of Judgment Condonation Summary Judgment Joinder of Parties

Case Brief

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Parties

Hendrik Johannes van Jaarsveld

Applicant

Hendrik Johannes van Jaarsveld N.O.

Applicant

Emmerentia Frederika van Jaarsveld N.O.

Applicant

Johannes Marthinus Steenkamp N.O.

Applicant

Samuel Jacobus Strydom

Respondent

Loretta Strydom

Respondent

Procedural Posture

Urgent Application / Application for Rescission and Condonation Following Summary Judgment

Legal Issues

  1. 1 Whether the application for rescission was brought within a reasonable time after knowledge of the judgment.
  2. 2 Whether the applicants provided a sufficient explanation for the delay in bringing the application.
  3. 3 Whether the applicants established a bona fide defence to the claim.

Ratio Decidendi

The court found that the application for rescission was brought more than six months after the judgment, which is unreasonable. The explanation for the delay, namely financial inability, was not credible and was only raised after challenge. The applicants had acquiesced in the judgment by making substantial payments and signing acknowledgments of debt without protest. The allegations of duress were unsupported and not raised in the founding affidavit. The failure to join the fourth defendant did not prejudice the Trust and was a mere technical defect. The applicants failed to establish good prospects of success or a bona fide defence. Consequently, both the application for condonation and...

Court Disposition

Application for condonation and rescission dismissed with costs.

Orders

  • The application for condonation is dismissed with costs.
  • The application for rescission is dismissed with costs.