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[2016] ZAGPPHC 280
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Holgoun Lifestyle And Leisure (Pty) Ltd t/a D'ore v Liberty Group Limited (8544/15) [2016] ZAGPPHC 280 (8 March 2016)
HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 8544/15
DATE: 08 MARCH 2016
In the matter between:
HOLGOUN LIFESTYLE AND LEISURE (PTY)
LTD t/a D’ORE
.....................................
Applicant
And
LIBERTY GROUP
LIMITED
..............................................................................................
Respondent
JUDGMENT
KHUMALO J
1. The Applicants are seeking an order
rescinding a money judgment granted against them in favour of the
Respondents on 6 May 2015
on account of the Respondents’
written consent to such rescission. The Application was unopposed.
2. According to Anastasia Maimonis, the
deponent to the Applicants’ supporting affidavit, who is the
head of the business
development of the Applicants companies, she
became aware sometime in May 2015 that a writ of execution had been
issued against
the Applicants’ property as a result of a
default judgment. In order to avoid the execution of the Writ by the
sheriff, the
1st Respondent was contacted to negotiate a settlement
of the parties’ dispute and that was concluded on 28 May 2015.
In
terms thereof the Applicants, made several payments between the
period 8 and 10 June 2015 totalling R 817 113.86, that settled the
debt. Applicant then obtained a consent to the rescission in August
2015.
3. During the application I was
implored by Counsel to have due regard to the negative effect the
judgment will likely have on the
Applicants business and reputation,
as attested to by Maimonis, and consider the application favourably
notwithstanding that Counsel
agreed with me that as the judgment was
correctly granted in terms of the law it cannot be rescinded on
account of a consent by
the Respondent. There is no bona fide
defence, the wilful default was not explained and the parties have
neither the intention
to proceed to defend nor prosecute the claim.
4. In ail intense and purposes the
Applicant is not entitled to the order sought. This is expounded in
numerous authorities, legat
articles and writings that a properly
granted default judgment cannot be rescinded; see Saphufa v Nedcor
1999 (2) SA 76
(W) at 79A-B; Swart v Absa Bank Ltd
2009 (5) SA 219
©;
Lazarus v Nedcor Bank Ltd; Lazarus v Absa Bank
1999 2) SA 782
(W).
Judgment is properly granted in the instant matter in the sense that:
4.1 the amount was owing, due and
payable
4.2 due demand made;
4.3 there was default (absence of a
reasonable explanation).
5. So absent the intention or desire on
the part of the Applicant for relief to raise the defence concerned
in the event of judgment
being rescinded, the whole purpose for the
rescission of judgment would therefore be defeated, that is ‘to
restore a chance
to air a real dispute’ giving a party an
opportunity to defend the matter; see Erasmus Superior Court
Practice, 2nd Edition
by Van Loggerenberg. Vol 2. This is also to
advance the inherent right of every person provided by the
Constitution in s 34, that
is the right to have any dispute that can
be resolved by the application of law decided in a fair public
hearing before a court,
or where appropriate, another independent and
impartial tribunal or forum.
[6] The Applicant has therefore failed
to make a proper case for the relief it is seeking, with no good
cause shown. It yet still
has to be found that
discharging a debt that was owing at
the time of granting the judgment and the judgment debtors consent is
good cause shown.
[7] Accordingly the Application is
dismissed.
MV KHUMALO J
JUDGE OF THE HIGH COURT GAUTENG
DIVISION, PRETORIA