A businesswoman can now challenge a default order against her for R400,000 after she explained that her summons was blown away in Port Elizabeth’s gale-force winds.
Tanya van Wyk said she had no idea about the application and therefore did not pitch to defend the matter at the time.
But Van Wyk, a director of Galvaspin CC at the time, finally has her hat in the ring, with the Port Elizabeth High Court rescinding an order granted in favour of Absa Bank Ltd for R400,000 in March 2018.
She was given 20 days to file her plea and counterclaim.
Van Wyk and her ex-husband, Henning, had bound themselves as surety and coprincipal debtor to Galvaspin (Pty) Ltd in favour of Absa for the repayment on demand of any sums of money which the company owed to the bank.
The extent of the liability for Van Wyk was R400,000.
Galvaspin was later converted to a close corporation.
Galvaspin CC was ultimately placed under voluntary liquidation in September 2017.
Relying on the deed of suretyship, Absa then sought repayment of the outstanding amount from Van Wyk and Henning on February 2 2018.
A summons was fixed to the front gate of Van Wyk’s property on February 6, but she did not enter an appearance to defend, and Absa was granted judgment by default.
According to papers before the court, Van Wyk contended she never received the summons and suspected that due to gale-force winds on the day, the summons was blown away.
Van Wyk said further that she had continued to communicate with lawyers for Absa, who failed to inform her that the process had been issued.
It was only during a separate matter – in which Absa had lodged an urgent application to compel Van Wyk to effect the sale of her property – that she heard about the order.
“Van Wyk explains that following this revelation, she took steps to inquire on the elusive summons.”
On March 27 2018, she approached the respondent directly and was advised to speak to the bank’s attorney.
“In a telephonic conversation with Absa’s attorney, the same inquiry was made,” court papers explain.
“However, on March 28 2018, the very next day, the bank wrongfully pursued the default judgment, well knowing that Van Wyk had not received the summons and therefore was not in wilful default.”
Van Wyk said she had a bona fide defence in that when Galvaspin was converted to a CC, she did not sign surety.
She said when she and Henning divorced, the divorce order explicitly stated she would be released from any surety.
Van Wyk maintained that the proper forum for her to prove her defence was a trial.
Acting judge Siphokazi Poswa-Lerotholi said the object of rescinding a judgment was to restore the opportunity for a real dispute to be ventilated.