Superfit Gym & Wellness Centre (PTY) LTD has successfully overturned a default judgement granted against them to the Believer’s Loveworld Trust.
Superfit Gym has had its property attached following the default judgement against them by Justice Abednego Tafa to Believer’s Loveworld Trust who were looking to recover over P6 million owed to them.
The judgement came after the gym failed to return the amount the church paid following termination of a sale agreement on October 25, 2017.
The trust had entered into a sale agreement with the gym to purchase a plot for a total of P8.5 million.
The payment was to be made in three instalments and the gym was to settle the bond against the property with First National Bank (FNB) with payments made by the church and was also to deliver vacant possession of the property to the church upon signature of agreement.
Emmanuel James represented the gym while former managing director of Botswana Development Corporation, Maria Nthebolan, was roped in as co-surety for the gym.
Justice Gaolapelwe Ketlogetswe has granted the gym the rescission order.
However, Ketlogetswe ordered the gym to pay the trust’s costs of suit for this application.
Ketlogetswe also ordered the case against Superfit Gym should proceed in terms of
“The conclusion I have arrived at is that the applicant’s application for rescission of the default summary judgement granted against it on December 18, 2018 ought to succeed, but the applicant ought to bear the costs therefore,” ordered Ketlogetswe.
Ketlogetswe ruled in favour of Superfit Gym that they were not served with a summons.
He also found that there is no evidence that Superfit Gym held James as its managing director as he had resigned.
He said although Superfit Gym waited for a long time without intervening, the proceedings sometimes prima facie, good defence might compensate for the applicant’s lack of a good reasonable explanation for his default.
Ketlogetswe also ruled that the trust lacked locus standi, as it could only sue through its trustees and not its own name.
Meanwhile, Ketlogetswe dismissed the application for variation of consent order staying the execution of sale by auction at the instance of Superfit Gym’s former managing director James and Nthebolan who were cited as 2nd and 3rd defendants respectively in the initial litigation.