Viljoen v Viljoen (47/2021) [2021] ZAFSHC 116 (29 April 2021)

Viljoen v Viljoen (47/2021) [2021] ZAFSHC 116 (29 April 2021)

The third applicant failed to provide any explanation for her default and did not set out a bona fide defence with prospects of success in her founding affidavit. The only ground raised—non-joinder of trustees—was relevant only to the first and second applicants and did not affect the third applicant, who was cited as surety. The defence raised was in personam and did not impact the underlying obligation. The requirements for rescission under Rule 42 and the common law were not met by the third applicant. Consequently, the application for rescission by the third applicant was dismissed with costs.

Citation
[2021] ZAFSHC 116
Parties
Applicant: Elizabeth Viljoen; Applicant: Elizabeth Viljoen (Trustee of the J J G Trust – IT 2349/1998); Applicant: Elizabeth Viljoen (Trustee of the Mooidam Graaf Trust – IT 901/1998); Respondent: ABSA Bank Limited
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 April 2021
Case Number
47/2021
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Default Judgment
Outcome
Application for rescission by the third applicant dismissed with costs.
Judges
M.A. Mathebula
Legal Topics
Rescission of Judgment, Default Judgment, Rule 42 Uniform Rules, Good Cause Requirement, Joinder of Parties
Civil Procedure Rescission of Judgment Default Judgment Rule 42 Uniform Rules Good Cause Requirement Joinder of Parties

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Parties

Elizabeth Viljoen

Applicant

Elizabeth Viljoen (Trustee of the J J G Trust – IT 2349/1998)

Applicant

Elizabeth Viljoen (Trustee of the Mooidam Graaf Trust – IT 901/1998)

Applicant

ABSA Bank Limited

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the third applicant has shown good cause for rescission of the default judgment.
  2. 2 Whether the third applicant provided a reasonable explanation for her default.
  3. 3 Whether the third applicant has a bona fide defence with prospects of success.

Ratio Decidendi

The third applicant failed to provide any explanation for her default and did not set out a bona fide defence with prospects of success in her founding affidavit. The only ground raised—non-joinder of trustees—was relevant only to the first and second applicants and did not affect the third applicant, who was cited as surety. The defence raised was in personam and did not impact the underlying obligation. The requirements for rescission under Rule 42 and the common law were not met by the third applicant. Consequently, the application for rescission by the third applicant was dismissed with costs.

Court Disposition

Application for rescission by the third applicant dismissed with costs.

Orders

  • The application is dismissed with costs.