Blaikie-Johnstone v P Hollingsworth (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Howard J
• Judgment Date: 26 April 1974
• Citation: 1974 (3) SA 392 (D)
• Hearing Date: 19 April 1974
• Court: Durban and Coast Local Division

Blaikie-Johnstone v P Hollingsworth (Pty) Ltd and Others
1974 (3) SA 392 (D)

1974 (3) SA p392

Citation	1974 (3) SA 392 (D)
Court	Durban and Coast Local Division
Judge	Howard J
Heard	April 19, 1974
Judgment	April 26, 1974

Flynote : Sleutelwoorde

Practice — Judgments and orders — Judgment on confession for part of the claim — Plaintiff not entitled thereafter without notice to the defendants to set case down F again for judgment for the balance under Rule of Court 31 (1) — No order granted — Application for judgment for balance renewable after proper notice — Semble: Judgment not a novation.

Headnote : Kopnota

The plaintiff on 5 February 1974 sued the three defendants jointly and severally for an amount of R6 949,53, interest a G tempore morae and costs. The defendants were in default of delivery of notice of intention to defend the action. On 18 March, however. they executed confessions in terms whereof each of them consented to judgment in an amount of R6 000 together with interest a tempore morae and costs. The plaintiff thereafter applied in writing for judgment according to the confessions, in terms of Rule of Court 31 (1). Judgment was granted against them, jointly and severally for R6 000, interest and costs in accordance with the confessions. H Thereafter the plaintiff set the action down, without notice to the defendants, for default judgment for the balance of the amount claimed together with interest and costs.

Held, that where a plaintiff with a single cause of action took a final judgment for part of the claim, as in the present case, he could not then attempt to proceed with the same action for a judgment in respect of the balance of the claim.

Held, therefore, that there should be no order on the application, leaving it open to the plaintiff. if so advised, to renew the application after giving proper notice to the defendants.

Semble: That the judgment on confession did not have the effect of novating the debt or right of action in respect of which it was granted.

1974 (3) SA p393

Case Information

Action for the recovery of the balance of a claim. The facts appear from the reasons for judgment.

K.R. McCall, for the plaintiff.

No appearance for the defendants.

Cur adv vult.

Postea (April 26). A

Judgment

Howard, J.:

Under summons dated 5 February 1974 the plaintiff sued the three defendants jointly and severally for payment of B an amount of R6 949,53 interest a tempore morae and costs of suit. The amount of R6 949,53 was alleged to be the "agreed total price" of goods sold and delivered by the plaintiff to the first defendant. The second and third defendants were alleged to have bound themselves as sureties and co-principal C debtors with the first defendant for payment of all amounts owing by the first defendant to the plaintiff.

The defendants are in default of delivery of notice of intention to defend the action. On 18 March 1974 the defendants executed confessions in terms of which each of them consented to judgment in an amount of R6 000 together with interest a D tempore morae and costs of suit. The plaintiff thereafter applied in writing through the Registrar to a Judge for judgment according to the confessions, in terms of Rule 31 (1). This application came before me in Chambers on 11 April 1974 and I granted judgment against the defendants jointly and severally for payment of the amount of R6 000, interest and costs in accordance with...