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[2010] ZAECPEHC 56
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National Pride Trading 452 (Pty) Ltd v Media 24 Ltd (227/2010) [2010] ZAECPEHC 56; 2010 (6) SA 587 (ECP) (2 September 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
CASE NO. 227/2010
REPORTABLE
In the matter between:
NATIONAL PRIDE TRADING 452 (PTY) LTD Applicant
and
MEDIA 24 LTD Respondent
JUDGMENT
ALKEMA J
[1] The respondent instituted application proceedings
against the applicant claiming the ejectment of the latter from a
building
in Walmer, Port Elizabeth. The applicant, in response,
filed and served an
“appearance to defend”
which I
assume was intended to mean a
“notice of intention to
oppose”
as contemplated by Rule 6 of the Rules of this
court. However, it did not file and serve any answering affidavit
within the stipulated
time period prescribed by Rule 6, in
consequence of which the respondent applied for and was allocated a
date for hearing by the
Registrar, which was 23 March 2010. When the
matter was called on such date, there was no appearance on behalf of
the applicant
and the court granted an ejectment order in favour of
the respondent. The applicant became aware of the order on 1 April
2010
and applied for the rescission of the order, which application
is opposed by the respondent and which forms the subject of this
judgment.
[2] The crisp issue in this application is whether in
the absence of any defence raised to the ejectment application, the
order
may be rescinded under Rule 42 (1) (a) of the Rules of this
court. In the absence of a defence, it is common cause that the
common
law does not apply.
[3] The relevant facts are uncomplicated. The applicant
took occupation of the building in terms of a lease agreement with
the
respondent. The lease agreement expired on 31 December 2009. In
terms of an earlier, separate, agreement between the parties,
the
respondent granted the applicant an option to purchase for R25
million the total issued share capital it held in another company
which owns the building. This option had to be exercised by 31 March
2010. No provision was made in any of the agreements for
the right
of occupation or payment of rentals for the period 1 January 2010
when the lease expired, and 31 March 2010 when the
option had to be
exercised.
[4] It seems to be common cause that after 1 January
2010 negotiations continued between the parties in regard to the
purchase consideration
for the exercise of the option, the continued
lease of the building and the amount of the rental payable pending
finalisation of
the sale agreement. It is also common cause that
until the date of hearing of this application, no final agreement was
concluded
between the parties in regard to the execution of the lease
and the rental payable, and nor was the option exercised by the
applicant
either timeously or at all. There is some dispute between
the parties on the legal consequences of these arrangements, but for
purposes of this judgment only I accept, in favour of the respondent,
that in these circumstances the applicant is in unlawful
occupation
of the building and was so from 1 January 2010. It has not disclosed
any defence to the respondent’s claim of
unlawful occupation.
[5]
The applicant, in its rescission application, bases its relief solely
on the ground that no notice of set down of the date of
hearing of
the ejectment application on 23 March 2010 was given to it either by
the Registrar of this court or by the applicant.
Mr
Kr
ű
ger
,
counsel for applicant, submitted that the relief is sought entirely
in terms of Rule 42 (1) (a) which does not require, as the
common law
does, that an applicant must in addition show
“reasonable
cause”
in the
sense of reasonable prospects of success in the main application for
ejectment. All it needs to show for the relief claimed
is that the
order was erroneously sought and erroneously granted within the
meaning of the Rule.
[6] Mr
Duminy
SC, counsel for respondent,
countered the above argument on the basis that Rule 42 (1) (a) was
not intended, and did not, amend
or extend the common law. For
authority in support of this proposition he referred to the words of
Jones AJA in
Colyn v Tiger Food Industries Ltd t/a Meadow Feed
Mills (Cape)
2003 (6) SA 1
at 7 (SCA) (para 6) where the learned
Judge said that the Rule is,
“…for the most part at
any rate, a restatement of the common law.”
[7] On the above basis, so the argument continued, the
requirement that an applicant in a rescission application must show
reasonable
prospects of success in addition to the other requirements
prescribed by Rule 42 (1), remains an integral requirement for the
grant
of a rescission application.
[8] It is necessary, at this juncture, to refer to the
facts giving rise to the applicant’s absence in court when the
ejectment
order was made. It came about in the following manner.
[9] The erstwhile practice in this division was that in
all applications in which the respondent filed and served a notice to
oppose
an application under Rule 6, the application was transferred
to the opposed motion court roll. If the respondent failed to
timeously
file and serve its answering affidavit, it was open to the
applicant to place the matter on the opposed motion roll for hearing.
Invariably, and due to the volume of opposed applications, it would
take a lengthy period of time before a date for hearing was
allocated
by the Registrar. Further, the defaulting respondent would shortly
before the date of hearing either file its answering
affidavit with
the applicant’s consent, or apply for condonation to file same.
This resulted in further delays and prejudice
to applicants,
particularly in those cases where the respondent had no
bona fide
defence to the application. In order to overcome this injustice, the
practice was adopted to allow an applicant to place an application
where a notice to oppose was filed but no answering affidavit was
forthcoming on the so-called
“uncontested opposed roll”
to be heard as an unopposed matter in the ordinary course in
motion court. This is what happened in this case.
[10] Since it is the duty of the Registrar to allocate
the date for hearing in motion court it was initially also its duty
to notify
both or all parties of the date of hearing. This soon
appeared to be fraught with difficulties in relation to the so-called
“uncontested opposed roll.”
[11] It became difficult to contact a respondent
appearing in person. Often the attorney who filed the notice to
oppose was no
longer acting for the respondent when the matter was
set down for hearing. In some cases the respondent changed his
address and
it was no longer possible to contact him. Whilst the
Rules cater for these eventualities, it was simply not the function
of the
Registrar to be saddled with those difficulties. It was the
function of the applicant to ensure that the Rules are complied with,
particularly in regard to service.
[12] The result was a Court Notice (also known as a
Practice Note) issued by the Judge President on 14 August 2009,
amending the
Joint Rules of Practice of this division in regard to,
inter alia
, the service of a notice of set down of matters on
the so-called
“uncontested opposed roll”
in the
unopposed Motion Court. In terms of the Court Notice, Rule 15 of the
Joint Rules of this division was amended by the addition
of the
following Rule 15 (k):
“15(k)
In all matters where a notice of opposition has been
delivered but no answering affidavit or notice in terms of rule 6
(5) (d)
(iii) of the Uniform Rules has been delivered within the
period prescribed in terms of the Uniform Rules, the applicant must
apply for the matter to be set down on the unopposed roll, and the
registrar must set the matter down on the unopposed roll under
the
caption ‘UNCONTESTED OPPOSED MATTERS’.
Notice in writing of the allocated date of hearing
must be given to the respondent by the
applicant
three (3) days before the allocated date of hearing.”
(my
emphasis).
[13] Although the respondent, as the applicant in the
ejectment proceedings, complied with Rule 15 (k) (i), it did not
comply with
Rule 15 (k) (ii). It did not serve the notice of set
down for the hearing on 23 March 2010 on the applicant as required by
the
sub-rule. It is abundantly clear from the respondent’s
attorneys’ correspondence attached to the papers in this
application
that the respondent was under the (mistaken) impression
that it was the duty of the Registrar, and not that of the applicant,
to
serve the notice of set down.
[14] The Registrar’s notice of set down for 23
March 2010 is addressed to the attorneys of both the applicant and
the respondent.
However, it does not bear the stamp of receipt from
the applicant’s attorney and, as I said, it is common cause
that the
applicant was not advised by anyone of the date of hearing.
I do not know on what basis the learned Judge granted the ejectment
order, but the probabilities are that the respondent’s counsel
bona fide
in the belief that the Registrar’s notice of
set down showed service on the applicant, submitted that there was
proper service
of the notice of set down by the Registrar on the
applicant.
Ex facie
the notice, it was indeed addressed to
the applicant’s attorneys, but it does not bear, as I said, the
stamped receipt. Be
that as it may, what is relevant in my view is
that if the learned Judge was informed of the true state of affairs,
namely that
the notice of set down was not served on the applicant
who had no knowledge of the application, then I have no doubt that he
would
not have granted the order.
[15] This, then, concludes the relevant factual matrix
of the case. I now turn to consider the legal principles. The point
of
departure is an analysis of Mr
Duminy
’s
submissions in this regard.
[16] His first submission is that Rule 42 (1) (a) does
not apply to the facts of this case. The Rule provides as follows:
“
(1) The court may, in addition to any other
powers it may have, mero motu
or upon the application of any
party affected, rescind or vary:
An order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby;”
[17] Sub-paragraphs (b) and (c) are not relevant for
present purposes and I need not refer thereto.
[18] In developing his argument, Mr
Duminy
submitted that the ejectment order was neither erroneously sought nor
was it erroneously granted. He submitted that
ex facie
the
notice of set down, it was served by the Registrar on the applicant’s
attorneys and the respondent had no way of knowing
that in fact it
was not served. In regard to the provisions of Rule 15 (k) (ii), he
submitted that it matters not whether the
notice of set down was
served by the Registrar or by the applicant’s attorneys. What
matters is that it was served. If
it was served by the Registrar,
then strict compliance with Rule 15 (k) (ii) falls away. And because
the applicant was under the
bona fide
and reasonable belief
that there was proper service by the Registrar, then it can not be
said that the order was erroneously sought.
[19] For the same reasons, Mr
Duminy
submitted,
the order was not erroneously granted. The learned Judge was
satisfied,
ex facie
the notice of set down, that it was
properly served. The order was therefore not erroneously granted.
[20] In support of his contentions, Mr
Duminy
referred me to
Colyn
(
supra
) which he
submitted was on all fours with the facts of this case.
[21] The facts in
Colyn
(
supra
)
may briefly be summarised as follows. The plaintiff instituted
action against the defendant claiming payment of a purchase price.
The defendant filed a notice of intention to defend the action. The
defendant’s attorneys have an office in Cape Town and
also an
office in Bellville. The plaintiff then filed an application for
summary judgment and served it on defendant’s attorneys
of
record at their Cape Town office. The summary judgment application
was, due to a filing error on the part of the attorneys,
not
forwarded to the Bellville office to the attorney personally
conducting the matter. The result was that the summary judgment
application was not drawn to his or the defendant’s attention.
In consequence, the notice of intention to oppose the summary
judgment was not given, and summary judgment was granted by default
by the Cape Town High Court.
[22] The application for rescission of the summary
judgment in
Colyn
(
supra
)
was dismissed
by the Cape Town High Court on the basis that the judgment was
neither erroneously sought nor erroneously granted,
which dismissal
was confirmed on appeal to both the Full Bench of the Cape Town High
Court and to the Supreme Court of Appeal.
[23] In the above circumstances Mr
Duminy
submitted that by analogy to
Colyn
(
supra
)
the
error of failing to advise the applicant of the date of set down in
this case was not
“erroneous”
within the meaning
of Rule 42 (1) (a). In further support of his submissions Mr
Duminy
also referred me to
De Wet and Others v Western Bank Ltd
1979
(2) 1031(AD) at 1038 B-G.
[24] In my respectful view, there is no merit in Mr
Duminy
’s submissions. I do not find any support for his
submission in either
Colyn
or
De Wet
(
supra
).
The facts in those cases are clearly distinguishable from the facts
in this case. As Jones AJA pointed out in
Colyn
(
supra
),
Rule 42 (1) (a) must be interpreted against the background of the
common law.
[25] The Rules of the High Court including Rule 42 (1)
(a) regulate the procedure in the High Court and are not part of the
substantive
law. It is also in this sense, I believe that Jones AJA
remarked in
Colyn
(
supra
)
that Rule 42 does not
purport to amend or extend the common law. Its object and purpose is
to provide a procedure for the rescission
of judgments and it has no
effect on common law principles. This is also recognized in our case
law.
[26] In
Theron NO v United Democratic Front
(
Western
Cape Region
)
and others
1984 (2) SA 532
(C) at 536E the
court held that Rule 42 (1)
“… is a procedural step
designed to correct an irregularity and to restore the parties to the
position they were in
before the order was granted.”
[27] It has often been held that where the Rules
prescribe a particular procedure, and that procedure is not followed,
then such
procedural error renders the judgment sought and granted
“erroneous”
within the meaning of Rule 42 (1) (a).
Effectively, what is being rescinded is the procedure in terms of
which the judgment was
granted, and therefore, by necessary
implication; also the judgment. See
Fraind v Nothmann
1991
(3) SA 837
(W);
Bakoven Ltd v G J Howes (Pty) Ltd
1992 (2) SA
466
(E);
Stander and Another v Absa Bank
1997 (4) SA 873
(E);
Lodhi 2 Properties Investments CC and Another v Bondev
Developments
2007 (6) SA 87
(SCA).
[28]
In Lodhi
(
supra
), Streicher JA said
at 93H-94B (para 24):
“
Where notice of proceedings to a party is
required and judgment is granted against such party in his absence
without notice of the
proceedings having given to him such judgment
is granted erroneously. That is so not only if the absence of proper
notice appears
from the record of the proceedings as it exists when
judgment is granted but also if, contrary to what appears from such
record,
proper notice of the proceedings has in fact not been given.
That would be the case if the sheriff’s return of service
wrongly
indicates that the relevant document has been served as
required by the Rules whereas there has for some or other reason not
been
service of the document. In such a case, the party in whose
favour the judgment is given is not entitled to judgment because of
an error in the proceedings. If, in these circumstances, judgment is
granted in the absence of the party concerned the judgment
is granted
erroneously.”
[29] The learned Judge of Appeal continued to remark at
94E (para 25) and 95D (para 27) that, by contrast, a judgment to
which a
party is procedurally entitled cannot be considered to have
been granted erroneously by reason of facts of which the Judge who
granted the judgment, as he was entitled to do, was unaware.
[30] Applying the above principles to the facts of the
present application, the following emerge:
[31] The amended Court Notice of August 2009 (the
Practice Note) prescribes a Practice Rule in this division. It was
promulgated
by the Judge President under section 43 of the High Court
Act 59 of 1959 and has the same force and effect as the Uniform Rules
of the High Court. Non-compliance of this Notice constitutes a
procedural irregularity. It was the duty of the applicant, and
not
of the Registrar, to serve the notice of set down on the respondent.
Failure to do so, constitutes a procedural irregularity
with the
result that the judgment was sought and granted erroneously within
the meaning of Rule 42 (1) (a). If the learned Judge
who granted the
ejectment order knew of the procedural irregularity, namely
non-service of the notice of set down on the respondent,
he would not
have granted the order.
[32] The mistake or irregularity in
Colyn
(
supra
)
relied on by Mr
Duminy
was not of procedural nature. In that
case the administrative error on the part of the defendant’s
attorney by failing to
forward the summary judgment application to
its Bellville office was not a procedural error under the Rules. In
the words of Jones
AJA at 8G (para 9):
“
The defendant describes what happened as a
filing error in the office of his Cape Town attorneys. That is not a
mistake in the
proceedings. However one describes what occurred at
the defendant’s attorneys’ offices which resulted in the
defendant’s
failure to oppose summary judgment, it was not a
procedural irregularity or mistake in respect of the issue of the
order. It is
not possible to conclude that the order was erroneously
sought by the plaintiff or erroneously granted by the Judge. In the
absence
of an opposing affidavit from the defendant there was no
reason for Desai J not to order summary judgment against him.”
[33] What brings the present case within the ambit of
Rule 42 (1) (a) was the procedural failure on the part of the
respondent’s
attorney to serve the notice of set down on the
applicant as it was required to by Practice Rule 15 (k) (ii).
[34] I therefore hold that the judgment in
Colyn
(
supra
)
does not support the respondent’s
case.
[35] The submission that
ex facie
the Registrar’s
notice of set down it was properly served on the applicant and
therefore the
bona fide
belief that the application was
procedurally in order, and consequently the order was not erroneously
sought or granted, is with
respect fallacious. First, as a matter of
fact, it was not
ex facie
the notice properly served on the
applicant. Although the notice is addressed to the applicant’s
attorneys, it does not bear
its stamp of receipt. It is a long
standing practice in this division (as it is I believe in all other
divisions of the High Court)
that any notice issued by the Registrar
to any party must bear the stamp of receipt of the addressee. Its
absence should have
alerted the respondent, as the applicant in the
ejectment application, to the failure of service.
[36] Second, and in any event, the error or irregularity
does not have to appear from the proceedings. Some of the earlier
cases
in this division, such as
Bakoven
(
supra
) (at
471F) and
Tom v Minister of Safety and Security
(1998) 1 All
SA 629
(E) held that the
“error”
must be patent
from the record of proceedings and that the court is confined to the
four corners of the record to determine whether
or not Rule 42 (1)
(a) is applicable. This is no longer good law. If the
“error”
is of procedural nature it is
“erroneous”
within
the meaning of the Rule, irrespective of whether or not it manifested
itself in the record of proceedings. See
Stander and Another v
Absa Bank
(
supra
) at 882 A-B;
Colyn
(
supra
),
and
Lodhi
(
supra
) at 93H-94B (para24).
[37] Third, and although I accept that proper service by
the Registrar may have done away with compliance of Rule 15(k)(ii),
it
remained the ultimate duty of the respondent to serve the notice
of set down on the applicant. It may not shift that duty to the
Registrar or endeavour to blame the Registrar for non-service, as it
does in its answering affidavit and heads of argument.
[38] The reliance by Mr
Duminy
on the case
of
De Wet
(
supra
) is equally misplaced.
[39] The
“error”
or irregularity
relied on in
De Wet
(supra) was the applicant’s
attorneys’ failure to notify him that he (the attorney) had
withdrawn as attorney of record
for the applicant. It was common
cause that the attorney had in at least two respects failed to comply
with the provisions of
Rule 16 (4) in withdrawing as attorney for the
applicant. Such failure resulted in the applicant not being notified
of the date
of hearing, and judgment by default was granted against
him.
[40] However, the attorney purported to withdraw as
attorney of record only after the case had been set down for hearing.
When
the matter was set down for hearing the notice of set down was
properly served on applicant’s attorney of record. The
applicant
applied for rescission which was refused. Both the Full
Bench and the Appellate Division (as it was then known) confirmed the
dismissal of the rescission application.
[41] The Court of Appeal, per Trengrove AJA, held that
there was no question of any irregularity on the part of the
respondent.
The case was set down for hearing properly and in
accordance with the Rules of Court. As far as the trial Court was
concerned,
the Rules had been fully complied with and the notice of
set down had been duly served. In short, the non-compliance with
Rule
(16) (4) dealing with the withdrawal of an attorney of record
had nothing to do with the regularity or otherwise of the procedure
to notify the applicants of the date of trial. When the notice of
set down was served on the attorney, he was still the duly appointed
attorney of record. It was accordingly held (at 1038B-H) that the
“error”
was not an error within the meaning of
Rule 42 (1) (a).
[42] The facts in this case are very different. The
“error”
complained of relates specifically to the
non-compliance with Rule 15 (k) (ii) by respondent’s attorney
to give notice of
set down to the applicant. When the matter was
heard, the Rules (Rule 15 (k) (ii)) had not been complied with. Had
this irregularity
been brought to the attention of the Presiding
Judge, he would not have granted the order. The order was therefore
erroneously
sought and erroneously granted within the meaning of Rule
42 (1) (a).
[43] This brings me to the second, alternative, point
raised by Mr
Duminy
, namely; that the common law requirement
of showing a
bona fide
defence remains a requirement
for the relief under Rule 42 (1) (a) even if the Rule applies. As I
said, in support of this contention
he relies on the dictum of Jones
AJA in
Colyn
(
supra
)
where the learned Judge
said that the Rule does not purport to amend or extend the common
law, but is merely
“a restatement of the common law.”
Mr
Duminy
submitted that what Jones AJA intended to convey
by this phrase is that the common law requirements must be drafted
into the wording
of Rule 42. I do not agree.
[44] Of course, Jones AJA did not say that the common
law requirement of
“sufficient cause”
remains a
requirement under Rule 42. This is a supposition of counsel, based
on what Jones AJA in fact said. In my view, such
supposition is
fallacious and is based on a misinterpretation of the judgment in
Colyn
(
supra
)
.
[45] Having alluded to the requirement that Rule 42 must
be interpreted against the background of the common law, and having
referred
to the guiding principle of the finality of judgments, the
learned Judge referred to the common law exceptions to the principle.
He referred to four such exceptions (at 5I-6G (para (4)) which he
said, in the main, constitute the common law grounds to obtain
a
rescission of an order or judgment. These are:
1. Judgments obtained by fraud or
justus error
;
2. Where the applicant shows sufficient cause;
3. The correction, alteration and supplementation of
judgments or orders; and (possibly)
4. The recalling of its order by court immediately after
having given it.
[46] In a comprehensive and well researched judgment on
the common grounds for rescission, Van Zyl J in
MEC for Economic
Affairs, Environment and Tourism v Kruisenga and another
2008 (6)
SA 264
(CkHC) discuss at 278A-290D the historical origin, development
and modern day requirements for each ground. See also
Childerley
Estate Stores v Standard Bank of SA Ltd
1924 OPD 163.
[47] It is unnecessary to repeat or summarise these
cases. Suffice to say that, broadly speaking, a distinction is drawn
between
judgments and orders granted in the absence of a party
against whom the judgment or order is made, and judgments or orders
made
after evidence was led or made by consent. In the former case,
the applicant for rescission must show sufficient (or good) cause
which essentially means he must give a reasonable explanation for his
absence and disclose a
bona fide
and legal defence to the
claim (the second ground). I have not found in any of the cases or
authorities I have consulted, or in
the judgment of Van Zyl J, any
suggestion that sufficient cause is a requirement under any of the
other common law grounds of rescission.
And nor can I conceive of
any good reason why it should be a requirement under any of the other
grounds.
[48] To return to the four grounds mentioned by Jones
AJA in
Colyn
(
supra
), ground 1 is only employed after
evidence is led and the merits of the dispute have been determined.
See also
Athanassiou v Schultz
1956 (4) SA 357
(W) at 360G;
Verkouteren v Savage
1918 AD 143
at 144; and
Colyn
(
supra
)
at 6A-B.
[49] Since the application for rescission based on fraud
or
justus error
is considered only after the merits have been
determined, it seems wholly unnecessary (if not illogical) to again
determine the
bona fides
of the defence in the circumstances
where it was fully aired and determined by the court which granted
the order or judgment.
[50] Ground 2 applies only where the order or judgment
was taken by default; ground 3 is not strictly aimed at rescission
but at
correction in limited and prescribed circumstances; and ground
4 applies only where the order is withdrawn either immediately or
shortly thereafter when a patent error is realized and no prejudice
is suffered by any party.
[51] The requirement that the applicant must show a
bona
fide
defence is peculiar to the ground of sufficient cause in
relation to a judgment or order granted by default. It is not a
requirement
of any of the other common law grounds upon which
rescission may be sought or granted. Put differently, where an
applicant relies
on any other common law ground for rescission, it
does not have to show a
bona fide
defence. The four grounds
mentioned by Jones AJA are therefore distinct and separate from each
other, each having its own particular
requirements or elements.
[52] Jones AJA did not and could not have intended to
convey that all common law requirements under all common law grounds
became
implied requirements under Rule 42, and nor did he stipulate
which requirements under which grounds became requirements under Rule
42. As I will shortly demonstrate, Rule 42 caters for a completely
different situation which provides for its own peculiar requirements.
[53] It is a procedural measure designed to rectify a
procedural error, and in this sense, in the words of Jones AJA, (at
7B-C)
“It does not purport to amend or extend the common
law.”
In the words of Erasmus J in
Tom v Minister of
Safety and Security
(
supra
) at 638(C):
“…
Rule 42 (1) (a) provides for a remedy distinctly different from the
relief allowed under the common law.”
[54] It therefore follows that the requirements of Rule
42 are prescribed by the wording of the Rule itself and are not
imported
from the common law. In a long line of cases it is
recognised, for instance, that the common law requirement of
“sufficient cause”
under the second ground
mentioned by Jones AJA, is not a requirement under Rule 42 (1) (a).
See:
Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd
1977 (2) SA
576
(W) at 578F-G;
De Wet and others v Western Bank Ltd
1977
(4) SA 770
(T) at 777F-G;
Tshabalala and another v Peer
1979
(4) SA 27
(T) 30C-D;
Bakoven
(
supra
) at 471 G-H;
Topol
and others v LS Group Management Services (Pty) Ltd
1988 (1) SA
639
(W) at 650 D-J;
Dawson and Fraser (Pty) Ltd v Havenga
Construction (Pty)Ltd
1993 (3) SA 397
(B) at 399C-D;
De Sousa
v Kerr
1978 (3) SA 635
(W);
Mutebwa v Mutebwa and another
[2001] 1 All SA 83
(Tk) at 89e (para 16).
[55] The matter is now authoritatively settled by the
judgment of the SCA in
Lodhi 2 Properties
(
supra
) where
Streicher JA said at 95F:
“
The existence or non-existence of a defence on
the merits is an irrelevant consideration …”
(under
Rule 42 (1) (a)).
[56] There is, I believe, also a consideration of policy
why it is not a requirement that an applicant has to show a
bona
fide
defence under Rule 42 (1) (a), and that is this: Any order
or judgment made against a party in his absence due to an error not
attributable
to him, is such a profound intervention in his right to
a fair trial and right to be heard, that, for this reason alone, the
judgment
or order should be set aside without further ado.
[57] If Jones AJA did not intend to mean that the common
law grounds apply to Rule 42, what then did he intend to convey by
saying
that the Rule is
“…
a restatement of
the common law …
”
? In my respective
view, what he intended to convey was no more than this: Rule 42
contains a similar remedy to that of the common
law, namely to
restore the parties to their same position before the wrong order was
made.
[58] The one feature which runs like a golden thread
through all the decided cases on the common law grounds for
rescission, is
that its historical origin lies in the remedy of
restitutio in integrum.
Its aim is to correct an injustice
and to place the aggrieved party in the same position in which he was
before the error or fraud
or other form of injustice was committed.
Although Rule 42 provides for a different mechanism, namely to set
aside a procedural
irregularity, its aim is the same as that of the
common law, namely to restore the applicant in its previous position
before the
irregularity occurred. And it is in this context, against
the background of the common law, that the words of Jones AJA in
Colyn
(
supra
)
must be read and understood where
he stated (at 7B-C (para 6)):
“…
It
(Rule42 (1)(a))
is, for the most part of any rate, a restatement of the common law.
It does not purport to amend or extend the common law
, …”
(my emphasis).
[59] What Jones AJA clearly meant by the above, is that
Rule 42, as does the common law, provides for the remedy of
restitutio in integrum.
It does not purport to amend or to
extend the common law, but merely restate the same defence in
procedural form, having as its
only requirement an order or judgment
which was (procedurally) erroneously sought or erroneously granted in
the absence of a party
affected thereby. It is a procedural error
explaining the absence of the affected party
[60] In my view, to interpret the judgment in
Colyn
(
supra
)
in the manner contended for by Mr
Duminy
,
is to take the words of Jones AJA out of context and to ascribe a
meaning thereto which was not intended and which is not conveyed
in
the text.
[61] I am satisfied that the judgment in
Colyn
(
supra
), for the reasons mentioned, does not support the
respondent’s case.
[62] In all the above circumstances I am satisfied that
the applicant is entitled to an order rescinding the order of this
court
granted on 23 March 2010.
[63] I accordingly make the following order:
1) The order of this court granted on 23 March 2010 in
this matter be and is hereby rescinded and set aside;
2) The respondent is ordered to pay the costs of this
application.
___________________
ALKEMA J
Heard on 24 June 2010
Delivered on 02 September 2010
Counsel for Applicant : Adv. Kruger
Instructed by : Goldberg & De Villiers Inc.
Counsel for Respondent : Adv. Duminy SC
Instructed by : Joubert Galpin Searle Inc.