Automated Summary
Key Facts
Three separate applications (cases 530/2020, 184/2020, and 212/2020) were filed by Yvette Georgiou and her husband Phillip Georgiou seeking rescission of summary judgments granted on 26 February 2021 in their absence. The applicants' attorney withdrew due to lack of instructions, and the applicants failed to file replying affidavits or defenses. The court found their explanation for defaulting (personal circumstances and confusion about case status) unreasonable and their defenses unsubstantiated. All applications were dismissed with costs, including costs reserved on 27 January 2022.
Issues
- The court considered whether the applicants' explanation for their default in attending the hearing for rescission of summary judgments was reasonable. The applicants claimed they were preoccupied due to their husband's medical condition and miscommunication with their attorney, but the court found this explanation vague and insufficient, particularly noting their prior awareness of the proceedings and lack of response to attorney inquiries.
- The applicants argued that their failure to receive Section 129 notices constituted a material defect. However, the court held that actual receipt is not a legal requirement, citing established precedent. The defense was further invalidated as the applicants did not prove non-receipt and merely denied arrears without evidence of payment.
- The court assessed the bona fides of the rescission application. It concluded that the applicants' repeated failures to engage with the process, including not delivering an affidavit to resist summary judgment and seeking postponements without furnishing security, demonstrated an intention to delay rather than a genuine effort to obtain relief.
Holdings
- The applications for the rescission of summary judgment are dismissed with costs on a scale as between attorney and client, including costs reserved on 27 January 2022, due to the applicants' insufficient explanation for their default and lack of valid defenses.
- Applicants are ordered to pay costs on a scale as between attorney and client, including costs reserved on 27 January 2022, due to their responsibility for the matter not proceeding on that date.
- The defense that Section 129 notices were not received is invalid, as the law requires proper service, not actual receipt, and there is evidence the notices were sent via the correct post office. Denying arrears without proof is also not a valid defense.
- The applicants' explanation for their default is found to be vague and not reasonable, particularly as their attorney made inquiries about the summary judgment applications and no instructions were provided, leading to withdrawal of representation.
Remedies
The applications for the rescission of summary judgment granted on 26 February 2021 in cases 530/2020, 184/2020, and 212/2020 are hereby dismissed with costs on a scale as between attorney and client, such costs to include costs reserved on 27 January 2022.
Legal Principles
- The court emphasized that an applicant seeking rescission of a default judgment must demonstrate a reasonable explanation for their default, show the application is bona fide, and present a valid defence. These requirements establish the burden of proof for such applications, as outlined in Grant v Plumbers (Pty) Ltd and other precedents.
- The standard required for rescission was clarified as needing a prima facie defence—i.e., averments that, if proven at trial, would entitle the applicant to relief. The court found Ms Georgiou's explanations insufficient and her defences lacking in substance, failing to meet this threshold.
Precedent Name
- Grant v Plumbers (Pty) Ltd
- Sebola and Ano. v Standard Bank of South Africa Ltd and Ano.
Cited Statute
- Uniform Rules of Court
- National Credit Act
Judge Name
N G Beshe
Passage Text
- The explanation proffered by Ms Georgiou for their default is essentially that during February 2020, her husband suffered a heart attack, that his condition deteriorated dramatically during mid-January 2021. That she had to take care of her husband which kept her constantly busy, tending to his needs and monitoring his medical attention. Due to lack of sleep, she was not able to deal with her day-to-day administration. She lost track of what was happening. When her attorney of record forwarded queries relating to the matters, in her mind, she thought the summary judgment had been dealt with in December and as a result did not provide any further instructions to her legal representative. She further states that due to failure to give instructions to her attorney of record he was forced to withdraw from the matter at the last moment and an order was granted in her absence or by default.
- It is trite that the failure by a plaintiff to issue a Section 129 notice is not per se a defence. It is even more so in this case in that applicants do not allege that same were not given, but that they were not received. There is ample evidence that the notices were sent via the correct post office. The law in this regard is clear. Namely that actual receipt of the Section 129 notice is not a requirement. The notices were also attached to the summons and particulars of claim. It is also not a bona fide defence to merely deny being in breach of the agreement or arrears without furnishing some proof of payment. I have no difficulty in finding that the applicants have not shown that they have valid defences.