Weelson v Waterlinx Pool and Spa (Pty) Ltd In re: Waterlinx Pool and Spa (Pty) Ltd v Right Stuff Hardware CC t/a Kings Paint & Hardware Pool Company (13904/ 2007) [2013] ZAGPJHC 47 (1 March 2013)

Weelson v Waterlinx Pool and Spa (Pty) Ltd In re: Waterlinx Pool and Spa (Pty) Ltd v Right Stuff Hardware CC t/a Kings Paint & Hardware Pool Company (13904/ 2007) [2013] ZAGPJHC 47 (1 March 2013)

The court found that the applicant failed to demonstrate that he was not properly served, as he had represented himself as 'of Kings Paint' in the acknowledgment of debt and provided no alternative address. His involvement with the company and willingness to sign the acknowledgment of debt for its benefit undermined his claim of ignorance regarding the summons. The applicant did not provide a satisfactory explanation for his default or a bona fide defence to the respondent's claim. The court was not satisfied that the requirements for rescission under Rule 42(1)(a) or Rule 31(2)(b) were met. However, the court identified a duplication in the judgment against the first and third defendants...

Citation
[2013] ZAGPJHC 47
Parties
Applicant: Mr DA Weelson; Respondent: Waterlinx Pool and Spa (Pty) Ltd; Plaintiff: Waterlinx Pool and Spa (Pty) Ltd; Defendant: Right Stuff Hardware CC t/a Kings Paint & Hardware Pool Company; Defendant: Zelma Weelson; Defendant: Mr DA Weelson
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 March 2013
Case Number
13904/ 2007
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment and Variation of Judgment
Outcome
Application for rescission dismissed; judgment varied to grant relief jointly and severally against first and third defendants; applicant ordered to pay costs.
Judges
S Mia
Legal Topics
Rescission of Judgment, Default Judgment, Proper Service, Uniform Rules of Court, Credit Guarantee, Condonation
Civil Procedure Rescission of Judgment Default Judgment Proper Service Uniform Rules of Court Credit Guarantee Condonation

Case Brief

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Parties

Mr DA Weelson

Applicant

Waterlinx Pool and Spa (Pty) Ltd

Respondent

Waterlinx Pool and Spa (Pty) Ltd

Plaintiff

Right Stuff Hardware CC t/a Kings Paint & Hardware Pool Company

Defendant

Zelma Weelson

Defendant

Mr DA Weelson

Defendant

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment and Variation of Judgment

Legal Issues

  1. 1 Whether the applicant has made out a case for rescission of the default judgment in terms of Rule 42(1)(a).
  2. 2 Whether the judgment was erroneously sought or granted.
  3. 3 Whether the applicant applied for rescission within the prescribed period and showed good cause under Rule 31(2)(b).

Ratio Decidendi

The court found that the applicant failed to demonstrate that he was not properly served, as he had represented himself as 'of Kings Paint' in the acknowledgment of debt and provided no alternative address. His involvement with the company and willingness to sign the acknowledgment of debt for its benefit undermined his claim of ignorance regarding the summons. The applicant did not provide a satisfactory explanation for his default or a bona fide defence to the respondent's claim. The court was not satisfied that the requirements for rescission under Rule 42(1)(a) or Rule 31(2)(b) were met. However, the court identified a duplication in the judgment against the first and third defendants...

Court Disposition

Application for rescission dismissed; judgment varied to grant relief jointly and severally against first and third defendants; applicant ordered to pay costs.

Orders

  • The application for rescission of the default judgment granted against the applicant on 30 October 2007 is dismissed.
  • The judgment handed down on 30 October 2007 is varied to read: judgment is granted in favour of the respondent for the amount of R274,413.58 against the first and third defendants jointly and severally.