SUMMARY
| This case concerns an application for the setting aside of a default judgement granted against the Applicant (the second Defendant in the main Application) in terms of Rule 31(2)(b). Summons was issued against the Applicant (Surety) and his Co-Defendant (Principal Debtor) for payment of a sum of R962, 992.64 plus interest and costs of suit. As there was no declaration of intention to defend by both Defendants, the Plaintiff was granted default judgment against both Defendants jointly and severally, the one paying the other to be absolved. The Second Defendant who was not legally represented and conducted his case in person sought to have the default judgment rescinded for reasons that same was granted based on Particulars of Claim which quoted an identity number different to that of his and that he did not bind himself to an unlimited suretyship. The merits of the Application were opposed by the Plaintiff who also raised a number of points in limine. One such point related to the fact that the Application was served a day late and the Second Defendant failed to seek condonation. A second point related to the Notice of Motion not having complied with Form 2(a) and the third point surrounded the fact that part of the Second Defendant’s prayer was that “judgement not be granted against the First and Second Defendants jointly and severally” yet the First Defendant was not given notice of the proceedings. The Judge was however of the view that there was substantial compliance with the rules applicable to applications especially since the Second Defendant was not legally qualified and that the Second Defendant claimed to represent the First Defendant (by virtue of being the sole member thereof). An Applicant must show the following in order for an application in terms of Rule 31(2)(b), for the rescission, to succeed: (1) Absence of wilfulness; (2) Reasonable explanation for the default; (3) That the application is bona fide made and not made with the intention to delay the Plaintiff’s claim; and (4) That the Applicant has a bona fide defence. The Judge was unable to find that the Applicant was successful in proving the existence of the first two requirements for reasons that they did not file an appearance to oppose the action and plea timeously and did not attempt to explain the default in the affidavit. In regard to whether the Applicant had a bona fide defence, the Second Defendant did not deny his capacity as surety and co-principal debtor for monies due by the First Defendant to the Plaintiff but rather suggested that the said suretyship was not unlimited and that no judgment was granted against his identity number. The Judge failed to understand this reasoning |
HELD
It was held that judgment was sought and granted against both Defendants and not against an identity number. As such, the defence was regarded as unconvincing, not good in law and thus did not amount to a bona fide defence. The Application was therefore dismissed with costs as the Applicant did not make out a case for the rescission of a judgment granted against him jointly and severally with the First Defendant in the main action.
VALUE
In order to rescind a default judgment granted against him, it is crucial that an Applicant prove a bona fide defence together with a reasonable explanation for such default
Written by Jayna Hira and Jenna Bentel
