Basadi Peniel Trading CC v Absa Bank Limited and another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Langa J
• Judgment Date: 20 January 2023
• Citation: 2023 JDR 0253 (MN)
• Docket Number: 3244/2020
• Hearing Date: 20 January 2023

Langa J:

[1]

This is an application for the rescission of a summary judgment which was granted by this court on 28 May 2021. The matter arises out of some instalment sale agreements between the applicant and the first respondent in terms of which the applicant purchased 2 tractors and 8 tippers from the first respondent.

[2]

On 28 October 2020 the first respondent, plaintiff in the main action, issued summons against the applicant as the first defendant, together with three other defendants, claiming breach of the agreement in that the defendants failed to punctually pay the instalment amounts in respect of the assets purchased in terms of the

2023 JDR 0253 p2

Langa J

agreements. The first respondent cancelled all the agreements in respect of these assets and claimed certain amounts owing based on the valuation of the assets. The applicant filed a notice of intention to defend and subsequent a plea. When the first respondent filed an application for summary judgment the applicant did not file any opposing papers to resist the summary judgment.

[3]

However, when the matter was heard on 28 May 2021, the applicant, who was represented, made an unsuccessful application for the postponement of the matter. The court, after refusing the application for a postponement, granted the application for summary judgment. This prompted the applicant to apply for leave to appeal which was followed by this application on 15 November 2021. On 22 November 2021 the first respondent served a notice to oppose and thereafter filed the answering affidavit on 24 March 2022. The applicant, however, did not file any replying affidavit and did not prosecute the application for rescission until the first respondent enrolled the matter for hearing.

[4]

The first respondent in the meantime also applied for the condonation of the late filing of its answering affidavit. The reasons advanced by the first respondent in respect of the late filing of the answering affidavit is that the process of obtaining the transcribed record of the proceedings in respect of the summary judgment application as well as the leave to appeal caused the delay in this matter. It further stated that the festive holidays also added to the delay in the filing of the answering affidavit and that it could therefore only obtain the record on 26 January 2022 although it was still incomplete. The full transcribed record was only obtained on 01 March 2022. The explanation advanced by the first respondent in the circumstances appears to be reasonable and acceptable to justify the granting of the condonation as prayed for and it is accordingly granted.

2023 JDR 0253 p3

Langa J

[5]

I now revert to the application for rescission which was brought in terms of Uniform Rule 42 (1) (a), alternatively, Rule 31 (2) (b) of the Uniform Rules of Court. I will first deal with Rule 31 (2) which provides for the following:

(a)

Whenever in an action the claim or, if there is more than one claim, any of the claims is not for a debt or liquidated demand and a defendant is in default of delivery of notice of intention to defend or of a plea, the plaintiff may set the action down as provided in sub-rule (4) for default judgment and the court may, after hearing evidence, grant judgment against the defendant or make such order as it deems fit.

(b)

A defendant may within 20 days after acquiring knowledge of such judgment apply to court upon notice to the plaintiff to set aside such judgment and the court may, upon good cause shown, set aside the default judgment on such terms as it deems fit.

[6]

It is clear from the simple interpretation of this rule that it envisages a situation...