CIVIL PRACTICE – CONDONATION APPLICATION – RESCISSION APPLICATION LATE FOR MORE THAN A YEAR

CIVIL PRACTICE – CONDONATION APPLICATION – RESCISSION APPLICATION LATE FOR MORE THAN A YEAR

Whereas the first respondent instituted action and obtained default judgement on 8 September 2019 against applicants in terms of which applicants were ordered to pay an amount, and the judgement declared certain Erf specially executable, and first respondent caused a writ of execution to be issued against movable properties of the applicants, the deputy sheriff having issued nulla bona returns, and thereafter attached the immovable property, the property was sold in execution and transferred into the name of fourth and fifth respondents; the applicants applied for rescission of the default judgment on the ground that they only became aware of the default judgment on 9 October 2020. The application was launched on 25 November 2021 – more than a year after gaining knowledge of the default judgement.

USIKU J proceeded to consider the condonation application first. If the condonation application failed, the rescission application would also fail. It is trite law that an application for rescission must be brought within reasonable time, after the applicant became aware of the judgment. Rule 103(1) requires that the rescission application must be brought ‘within reasonable time’. Rule 16 requires that such application be brought within 20 days after the applicant acquired knowledge of the judgment. The common law requires that the rescission application be brought within reasonable time.

An applicant in a condonation application is required to give a) a satisfactory explanation for the non-compliance with the rule, in respect of which condonation is sought; and b) set out a bona fide defence to the main action. A satisfactory explanation is one which explain how the delay, or non-compliance, came about. A bona fide defence means that the applicant must set out the facts upon which, if proved, constitute a defence to the action.

The applicants did not explain the reasons why they failed to bring the rescission application between the period of 9 October 2020 and 25 November 2021. Furthermore, they did not set out their prospects of success (bona fide defence) in the action. The Court held the view that the applicants failed to meet the requirements for the granting of condonation, and the application stood to be dismissed. Therefore, there was no need to deal with the merits of the rescission application.

In the result the application for condonation was dismissed with costs.

Jemwa v FNB NAHCMD 23 September 2022