SUNLYN (Pty) LIMITED THIRD RESPONDENT
JUDGMENT – WRIGHT J
1. Default judgment was granted in favour of the present respondents
against Mr Upton, the present applicant. Mr Upton now seeks rescission
of that judgment. He bases his application on Rule 31(2)(b). His
application was launched a few days late. He needs to explain his
lateness and he needs to establish absence of wilful default in not
defending the action and he needs to put up a defence to the claim.
2. He says that he never received the summons. The day after he found out
about the judgment he contacted an attorney. There was a short delay in
counsel finalising the rescission papers.
3. The answering affidavit concedes on the short delay in getting the
present application out and it concedes that Mr Upton did not wilfully
fail to defend the action. In these circumstances the only question is
whether Mr Upton puts up a defence to the action.
4. Mr Upton alleges that the particulars of claim are excipiable as not
disclosing a cause of action.
5. The particulars of claim do not make for easy reading. I shall attempt to
capture the essence as best I can.
6. In short, the respondents, as creditor or cessionary of a creditor’s claim,
lent money to a company, Maximise, that Mr Upton was once involved
in.
7. The particulars of claim allege, in paragraph 8, that Mr Upton, on 18
December 2013 bound himself in writing as guarantor and co-principal
debtor for the debts of Maximise to Sunlyn, the present second
respondent. A copy of the agreement is attached to the particulars of
claim and it reflects Mr Upton as signatory.
8. A Mr De Sousa, apparently a former business associate of Mr Upton,
appears to have signed at least one document relevant to present
proceedings.
9. The particulars of claim allege, in paragraph 29, that Mr Upton, on 14
April 2020, acting in his personal capacity and as representative of
Maximise, admitted to having breached a certain warranty agreement “
by signing the guarantee to the rental agreement provided by De Sousa
“. Mr Upton “ witnessed to the purported signing of the guarantee by De
Sousa under circumstances where he was not present when the
guarantee was signed; De Sousa having subsequently denied that the
signature appearing on the guarantee is his signature.”
10. In paragraph 30 it is alleged that “ the allegations of De Sousa, are
correct, and as a consequence the plaintiffs are not able to recover from
De Sousa the balance of the rental instalments due and payable. “
11. It may be, that at the end of the day the respondents have a valid cause
of action against Mr Upton. It may be that the document signed by Mr
Upton on 18 December 2013 forms the basis for a discrete cause of
action. The problem now for the respondents is that their cause of
action, assuming that they have one, is camouflaged by the unclear
allegations relating to Mr De Sousa and the witnessing of an agreement.
Instructed by Otto Krause Inc Attorneys
anastasia@ottokrause.co.za
RESPONDENTS No appearance
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