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[2014] ZAGPJHC 428
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Benson and Another v Standard Bank of SA Ltd and Others (17143/2011) [2014] ZAGPJHC 428 (14 October 2014)
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Note: Certain personal/private details of parties or witnesses
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
CASE
NO: 17143/2011
DATE:
14 OCTOBER 2014
In
the matter between:
BENSON,
Johan
Marvin
.....................................................................................................
1
st
Applicant
(ID
NO: 5………………..)
BENSON,
GLORIA
VALENTIA
......................................................................................
2
nd
Applicant
(ID
NO: 5…………………….)
And
THE
STANDARD BANK OF SA
LTD
...........................................................................
1
st
Respondent
EX-SHERIFF
JOHANNESBURG
WEST:
...................................................................
2
nd
Respondent
H.M.
BOTHA
THE
REGISTRR OF
DEEDS:
.......................................................................................
3
rd
Respondent
JOHANNEBSURG
GERT
CORNELIUS DU
PLESSIS
................................................................................
4
th
Respondent
(ID
NO: 6……………………….)
JUDGMENT
WEINER
J
:
1)
In this matter the Applicants (“the
Bensons’”) applied to rescind an order granted by Acting
Judge Mia on 13 February
2013. In the application before Mia AJ, the
Bensons applied for rescission of an earlier order which the
Respondent (“Standard
Bank”) had obtained. Mia AJ
dismissed the application for rescission.
2)
The Bensons seek to rescind the dismissal
of the rescission application on the basis that such order or
judgment was erroneously
granted by Mia AJ. The Bensons submit that,
they were at court to oppose the matter but, unfortunately they were
in the wrong court.
This is confirmed in a note in the file from
Judge Boruchowitz who stated that the Bensons appeared in his court,
although unbeknown
to them, the matter had been allocated to Mia AJ.
They were present in Boruchowitz’s court for most of the day,
awaiting
the hearing of the matter.
3)
Standard Bank contends that the dismissal
of the rescission application by Mia AJ is not capable of rescission.
If there has been
some sort of error it might be subject to appeal.
4)
The
question is whether or not the order of Mia AJ was erroneously
granted. The meaning of these words has been dealt with in the
case
of
Bakoven
Ltd v G J Howes (Pty) Ltd
[1]
,
where the judge stated the following:
“
An
order or a judgment is ‘erroneously granted’ when the
Court commits an ‘error’ in the sense of a ‘mistake
in a matter of law appearing on the proceedings of a Court or record’
(
The Shorter Oxford Dictionary
).
It follows that a Court in deciding whether a judgment was
‘erroneously granted’ is, like a Court of appeal,
confined
to the record of proceedings. In contradistinction to relief
in terms of Rule 31 (2)(b) or under the common law, the applicant
need not show ‘good cause’ in the sense of an explanation
for his default and a
bona fide
defence... Once the Applicant can point to an error in the
proceedings, he is without further ado entitled to rescission.”
5)
In
the case of
Standard
Credit Corporation v Marais
[2]
,
the respondent claimed that default judgment was erroneously granted
in terms of rule 42 (1) (a) because the summons was expiable
as it
disclosed no cause of action. The applicant had failed to make
an essential averment of an initial payment having been
made, in
order for it to enforce a credit agreement upon which it relied.
It was held by Coetzee J that “the word ‘erroneously’
in Rule 42(1)(a) covered the situation where, for want of an
essential averment, there was no cause of action and thus nothing
to
sustain the judgment”
[3]
as
the summons lacked an essential averment, there was no cause of
action and thus nothing to sustain the judgment. Accordingly
the
default judgment, that had been granted, was rescinded. It was clear
that, on the papers before Coetzee J, no cause of action
had been
made out. Therefore, in terms of the test referred to in Bakoven
supra,
the judgment was erroneously granted.
6)
Standard
Bank referred to the case of
Francesco
Pitelli v Everton Gardens Projects CC
[4]
which dealt with the corollary of whether an order, capable of being
rescinded by a court below is appealable. In dealing with
the issues
Nugent JA, stated the following:
“
...for
an order to be appealable it must have as one of its features that
the order is final in its effect, by which I mean that
it is not
susceptible to being revisited by the Court that granted it (
Zweni
v Minister of Law and Order”)
[5]
7)
The court below had refused to rescind the
orders and such refusal is [according to Nugent JA] an order that
would clearly be appealable
because it would have brought the
proceedings to completion in the court of first instance.
8)
Nugent
JA went on to state
[6]
:
“
An
order is not final, for the purposes of an appeal, merely because it
takes effect unless it is set aside. It is final when the
proceedings
of the court of first instance are complete and that court is not
capable of revisiting the order. That leads one ineluctably
to the
conclusion that an order that is taken in the absence of a party is
ordinarily not appealable... It is not appealable
because such
an order is capable of being rescinded by the court that granted it
and it is thus not final in effect.”
Nugent
JA continued
[7]
:
“…
the
appealability of an order must be dependent on the nature of the
order and not upon what the litigant chooses to make of it.
An order
made by default is by its nature not final in its effect because it
is capable of being revisited, albeit that condonation
might be
required for the delay. It is true that once rescission has been
refused, and an appeal against that order has been dismissed,
the
order is then not capable of being revisited.”
9)
The issue in this case is whether or not
this judgment was granted by default and is therefore capable of
being rescinded. The analogous
situation, in my view, is that which
presents itself in a summary judgment application. In such an
application, the defence
has to put an affidavit before the Court to
oppose the application for summary judgment.
10)
As
is set out in Erasmus Superior Court Practice
[8]
:
“
Where
pursuant to the sub-rule, the defendant files an affidavit in
opposition to an application for summary judgment, the Court
is not
entitled to ignore such affidavit and it cannot be said that the
defendant is in default because he or she or his or her
counsel fails
to appear when the application is heard.”
11)
In
this regard, reference was made to the case of
Morris
v Autoquip (Pty) Limited
[9]
.
In my view, that is the situation in the present case. The
Bensons’ in this case had filed an application for
rescission.
Standard Bank filed its answer on 14 September 2012 and, therefore,
the Bensons were entitled to file a reply
thereto by the end of
September 2012. They did not do so. They took the point
that the fourth respondent only filed
its answer late on 21 January
2013 and it would have been entitled to reply thereto within the
requisite days. However, the
matter was only set down by
Standard Bank for 13 February 2013, by which time, the time period
for filing the replying affidavit
would have lapsed.
12)
Accordingly all the papers that had been
filed were before the court and the court made its judgment upon the
record before it.
On the papers before it, it was entitled to
grant the judgment which it did and, therefore, the judgment was not
erroneously granted.
Nor, was it a default judgment because the
Bensons had filed an affidavit and the Court was obliged to have
regard thereto.
13)
If the Bensons are of the view that the
Court erred in some way by refusing the rescission or for any other
reason, they have their
remedy in an application for leave to appeal
and the subsequent appeal. It, however, does not have its remedy in a
rescission as
the application was not granted by default.
14)
Accordingly, the application is dismissed
with costs.
WEINER
J
Counsel
for Applicant:
H Motsemme
Applicant’s
Attorneys:
E.D Van Schalkwyk Attorneys
Counsel
for 1
st
Respondent:
L Van tonder
1
st
Respondent’s Attorneys:
Le Roux
Vivier & Associates
Counsel
for 4
th
Respondent:
F Bezuidenhout
2
nd
Respondent’s Attorneys:
Hartzenberg
Prokureurs/Attorneys
Date
of Hearing:
13 October 2014
Date
of Judgment:
14 October 2014
[1]
1992
(2) SA 466
at 471 F-G
[2]
2002
(4) SA 892
[3]
Supre
at
893 E-F
[4]
191/09/2010
ZASCA35 at [20]
[5]
1993
(1) SA 523
(A) at 532 (J).
[6]
Francesco
Pitelli v Everton Gardens Projects CC
Supra at [27]
[7]
Supra
at [31]
[8]
at
B1-222
[9]
1985
(4) SA 398
(W)