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2. The Applicant is a taxi driver that concluded a lease agreement with the
Respondent . In terms of the lease agreement, the Applicant was entitled to
possess and use a 2017 Toyota Quantum Sesfikile 16 -Seater Diesel
(“the Quantum ”) against payment of an agreed monthly instalment for a period
of 64 months. Upon payment of all instalments and other amounts owed under
the agreement, the Respondent would be entitled to purchase the Quantum
from the Respondent for R 100.

3. In May and June 2017, the Applicant repeatedly defaulted on payment of the
monthly instalments owed under the lease agreement. The Respondent duly
delivered notice of breach by registered post to the Applicant ’s chosen
domicilium citandi et executandi . When the Applicant failed to respond, the
Respondent elected to cancel the agreement and serve summons. The
summons was also served on the Applicant ’s chosen domicilum .

4. For reasons that are not well explained by the Applicant in the application, the
notice of breach and the summons did not come to the Applicant ’s attention
despite that the Applicant ’s chosen domicilum was his residence. When the
Applicant failed to react to the summons, the Respondent applied to the
registrar for default judgment in terms of Rule 31(5) for orders confirming the
cancellation of the agreement and directing that the Applicant return the
Quantum to the Respondent . Default judgment was granted by the registrar on
20 September 2017.

5. The Applicant learnt that default judgment had been granted against him on
16 July 2018, when the sheriff took possession of the Quantum under writ of
execution.
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6. The Applicant launched the application for rescission on 29 April 2022. The
application is opposed by the Respondent .

7. The Applicant applies to rescind the default judgment in terms of Rule 42(1)(a)
on the basis that the default judgment was erroneously sought or erroneously
granted by the registrar.

8. The purpose of Rule 42 is “to correct expeditiously an obviously wrong
judgment or order ” (Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E) at
471E–F).

9. In order to be successful in a rescission in terms of Rule 42, an Applicant must
satisfy two requirements. First, the Applicant must bring the application within
a reasonable time. Second, the Applicant must make out one of the grounds
enumerated in Rule 42(1).

10. I am unable to find that the Applicant has satisfied the first requirement. The
application was brought 3 years and 9 months after the Applicant acquired
knowledge of the default judgment, and the explanation for the delay is prima
facie inadequate.

11. Nevertheless, even if I were to overlook the inadequacy of the Applicant ’s
explanation and assume in favour of the Applicant that he has satisfied the first
requirement, it seems to me that he has not made out a case in terms of
Rule 42(1)(a).

12. There are two lines of authority giving content to the ground of rescission
contained in Rule 42(1)(a).
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13. The first line of authority holds that Rule 42(1)(a) is only available in cases
where an Applicant was not procedurally entitled to the order (See Lodhi 2
Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6) SA 87
(SCA) and the cases following it). According to this line, a judgment to which a
party is procedurally entitled cannot be considered to have been granted
erroneously within the meaning of this subrule by reason of facts of which the
court was unaware at the tim e of granting the judgment (see Lodhi at 95D -F).
Since the Applicant does not claim that Respondent failed to duly deliver notice
of breach or duly serve the summons, he is not entitled to a rescission according
to the first line of authority.

14. The second line of authority holds that a judgment is erroneously sought or
erroneously granted if there existed at the time of the judgment a fact of which
the court was unaware, which would have precluded the granting of the
judgment and which would have induced the court, if aware of it, not to grant
the judgment (see Nyingwa v Moolman NO 1993 (2) SA 508 (Tk) and cases
referred to therein).

15. The Applicant sought to make a case under the second line of authority.

16. In this regard, the facts are as follows:

16.1. In May and June 2017, the Applicant defaulted on payment of monthly
instalments.

16.2. On 10 July 2017, the Respondent delivered notice of breach by
registered post.
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16.3. On 16 August 2017, the Respondent caused summons to be served in
which its election to cancel the agreement was recorded.

16.4. On 24 August 2017, the Applicant was hi -jacked and dispossessed of
the Quantum. The Applicant immediately notified the Respondent that
he had suffered a hi -jacking and the Quantum had been stolen. The
Applicant also lodged an insurance claim with a short -term insurer that
is a sister company of the Respondent .

16.5. Despite having been notified of the hi -jacking and dispossession of the
Respondent , the Respondent applied to the registrar for default
judgment. In so doing, the Respondent did not disclose to the registrar,
that the Applicant had suffered a high -jacking and that the Quantum was
not in his possession. The Respondent also did not disclose to the
registrar that the Applicant was comprehensively insured.

16.6. Default judgment was granted by the registrar on 20 September 2017.

16.7. On 5 January 2018, the Quantum was recovered by the police and
possession of the Quantum was restored to the Applicant .

16.8. On 16 July 2018, the sheriff took possession of the Quantum under writ
of execution.

17. The Applicant submits that the fact that he had been hi -jacked and was no
longer in possession of the Quantum, and the fact that he was comprehensively
insured, were material facts that the Respondent should have brought to the
attention of the registrar. He submits that the failure of the Respondent to
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disclose these facts caused the default judgment to be erroneously sought and
erroneously granted.

18. The question, then, is whether the disclosure of the above undisclosed facts
would have precluded the granting of the judgment and would have induced the
registrar not to grant the judgment.

19. In my view, this question is to be answered in the negative.

20. The orders sought and obtained by the Respondent by default were as follows:

20.1. order one, confirmation that the Respondent had terminated the lease
agreement;

20.2. order two, an order directing the Applicant to return the Quantum to the
Respondent forthwith; and

20.3. order three, costs of R 200 plus sheriff’s fees.

21. It is clear that the facts that the Applicant had been hi -jacked an was no longer
in possession of the Quantum or had insurance , were irrelevant to, and had no
impact on, the Respondent ’s cause of action.

22. By the time summons was served, the Applicant had breached the agreement,
the Respondent had duly given notice of breach, the Applicant had failed to
remedy his breach, and the Respondent had cancelled the agreement.

23. Disclosure of the above facts would not have precluded the granting of orders
one and three, nor induced the registrar not to grant these orders.

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24. But the same can be said also of order two.

25. Order two, the order directing the Respondent to return the Quantum to the
Respondent , was an order in consequence of, and ancillary to, the order
confirming the termination of the lease agreement.

26. It was because the agreement had been terminated, that the Applicant was no
longer entitled to possess and use the Quantum. And it was because the
agreement had been terminated, that the Respondent was liable to return the
Quantum to the Applicant .

27. The fact that the Applicant had been dispossessed of the Quantum, or had
insurance, did not mean that the Respondent was entitled to possess the
Quantum, or was not liable to return the Quantum to the Respondent .

28. The fact that the Applicant was physically unable to return the Quantum
because of the hi -jacking at the time default judgment was taken , therefore did
not preclude the granting of order two . Nor can it be said that disclos ure of th is
fact would have induced the registrar not to grant order two. The same is true
of the fact that the Applicant had insurance.

29. It can also not be said that the disclosure of the fact that the Quantum had been
hi-jacked, or the fact that the Applicant had insurance, would have induced the
registrar not to grant the order for another related reason. This is that a vehicle
that has been hi -jacked may well in the ordinary course, due to vehicle tracking
and law enforcement, be recovered and returned to th e driver or owner of the
vehicle. The default judgment had to cater for that possibility since the
consequence of order one was that the Respondent no longer had the right to
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For the Applicant: P Springveldt
Instructed by GW Mashele Attorneys

For the Respondent : R Stevenson
Instructed by Marie -Lou Bester Inc