Vosloo v Du Plessis (A3050/2017) [2017] ZAGPJHC 220 (16 August 2017)
- Citation
- [2017] ZAGPJHC 220
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wepener, Vally
- Case number
- A3050/2017
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wepener, Vally
- Case number
- A3050/2017
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the appellant's allegation regarding representation by an unqualified attorney was inadequately substantiated and, even if accepted, was irrelevant to the rescission application, as the appellant was properly represented during that process. The appellant failed to show good cause for rescission, notably by not disclosing any grounds for a bona fide defence. The delay in launching the rescission application was not satisfactorily explained. The concession by the appellant's counsel that the failure to set out a defence was fatal was accepted by the court. Accordingly, the appeal was dismissed with costs.
Court disposition
Appeal dismissed with costs.
Orders
- The appeal is dismissed with costs.
02
Material facts
Parties
Chris Vosloo
Appellant Counsel: K.D. SeforoRoelf Du Plessis
Respondent Counsel: M. Louw03
Procedural history
Posture
Civil Appeal / Appeal Against Magistrate's Refusal of Rescission
04
Questions and positions
Legal issues
- 01
Whether the proceedings should be set aside due to alleged representation by an unqualified attorney.
- 02
Whether the appellant established good cause for rescission of judgment.
- 03
Whether the appellant disclosed a bona fide defence to the claim.
Party arguments
- Applicant
- The appellant argued that his legal representative during the initial proceedings was not a duly admitted attorney, rendering all proceedings irregular and necessitating rescission of judgment. He further contended that the delay in launching the rescission application was due to his attorney's failure to act.
- Respondent
- The respondent maintained that the appellant was properly represented during the rescission application and that the evidence regarding the attorney's status was inadequate. The respondent argued that the appellant failed to show good cause for rescission and did not disclose any bona fide defence to the claim.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 49(1)
A party seeking rescission of judgment must show good cause, including a bona fide defence and must act within twenty days of becoming aware of the judgment.
- 02
Vosloo v Du Plessis (A3050/2017) [2017] ZAGPJHC 220
Allegations regarding irregular representation must be supported by adequate evidence; mere assertions are insufficient.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the appellant's allegation regarding representation by an unqualified attorney was inadequately substantiated and, even if accepted, was irrelevant to the rescission application, as the appellant was properly represented during that process. The appellant failed to show good cause for rescission, notably by not disclosing any grounds for a bona fide defence. The delay in launching the rescission application was not satisfactorily explained. The concession by the appellant's counsel that the failure to set out a defence was fatal was accepted by the court. Accordingly, the appeal was dismissed with costs.
Obiter and limits
- The court noted that mere assertions regarding the status of legal representatives, without adequate supporting evidence, cannot be relied upon to set aside proceedings.
- The delay in launching the rescission application, even if partially explained, does not assist the appellant in the absence of a disclosed defence.
Court disposition
Appeal dismissed with costs.
- The appeal is dismissed with costs.
Source and reliance status
South Gauteng High Court, Johannesburg
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Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: A3050/2017
Reportable
Of interest to other judges
Revised
CHRIS VOSLOO Appellant
and
ROELF DU PLESSIS Respondent
Coram:
WEPENER et VALLY JJ
Heard: 15 August 2017
Delivered: 16 August 2017
JUDGMENT
WEPENER J:
[1] The appellant appeals a decision of the magistrate of Randfontein. The appellant sought a rescission of a judgment which was granted against him in his absence, which rescission the magistrate refused. The only point contained in the appellant’s heads of argument is that an attorney who represented him at some stage during the proceedings was not a duly admitted attorney and therefore all proceedings should be set aside as being irregular. The matter is not that easy. Firstly, the allegation that the legal representative was not an admitted attorney is bold a sketchy to say the least. I am not prepared to find that the legal representative was not a duly admitted attorney on the inadequate evidence belatedly tendered by the appellant.
[2] Even on the assumption that the attorney who represented the appellant at the time when judgment was entered against him was not a duly admitted attorney, this is of no relevance because the appellant was properly represented when he applied for a rescission of judgment which was refused and which refusal is currently on appeal before us. When applying for a rescission a party must, inter alia, show good cause for the relief sought. Such good cause would include showing a bona fide defence to the claim and the party must seek the rescission within twenty days of becoming aware of the judgment against him. The record shows that the appellant knew full well of the judgment when the Sheriff executed a warrant at his premises on 3 November 2015. He launched the rescission application in April 2016 after his ‘attorney’ failed to do. Whilst this may partially explain the delay, it does assist the appellant. The appellant failed to set out his grounds for a defence to the claim against him. In fact, no defence was disclosed save to refer to what was contained a plea and counter-claim. Mr Seforo, who appeared for the appellant, conceded that that failure was fatal to the appellant’s application for a rescission of the judgment. It is similarly, fatal in this appeal.
[3] Accordingly, the appeal falls to be dismissed with costs.
__
Wepener
J
I agree.
_____
VALLY J
Legal representative for Appellant: K.D. Seforo
Attorneys for Appellant: K.D. Seforo Attorneys
Counsel for Respondent: M. Louw
Attorneys for Respondent: Truter & Crous Wiggill Inc
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