REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 13436/2020

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED: NO
 
Date:	   10 November 2021	E van der Schyff

In the matter between:
F UYS			APPLICANT
And
AFRISAM SOUTH AFRICA (PTY)			1ST RESPONDENT
C A METZER			2ND RESPONDENT			
JUDGMENT
Van der Schyff J

[1]	This is an application for the rescission of judgment. The unusual feature of this rescission application is that the applicant, an attorney, was in court, and represented by counsel, when the summary judgment he wants rescinded, was granted. The summary judgment was opposed and an affidavit to which he deposed, resisting summary judgment was filed. 

[2]	According to the notice of motion the applicant based this application on Rule 42(1). During argument reliance was also placed on the common law. The applicant states in the founding affidavit that he was ‘wrongly under the impression that he was responsible for the debt of ENVIRO, which now turn out to be wrong, after obtaining legal advice from a new council.’ The applicant purports to make out a case that the legal advice he received in the court case leading up to the judgment he seeks to have rescinded, now appears to have been made in error and based on the wrong defence. The argument is then that the judgment was erroneously granted, in that the court accepted that the applicant concluded a suretyship agreement without having regard to the document. However, it is evident from the founding affidavit to the rescission application that the applicant, at that point in time, was under the impression that he was responsible for the debt in question. He stated:

‘I was advised by my initial council (sic.) that the summons served on me cited me in my personal capacity as the 2nd Defendant, and after perusal of the papers served, he was under the impression and opinion that I had signed a surety for the debt of Enviro-Cast (Pty) Ltd which now only turned out to be untrue and false. I had no reason to doubt his legal opinion as I am aware of the credit agreement between Enviro-Cast (Pty) Ltd.’

In addition, the applicant confirmed in the affidavit resisting summary judgment that ‘surety was undertaken by myself and the 2nd defendant’.

[3]	Counsel for the applicant submitted that ‘since the orders granted against Mr. Uys was based on a judgment in terms of which there was an error or omission by his previous legal counsel, it resulted in a judgment granted as a result of a mistake common to the parties.’ Counsel for the respondent denies that there was any mistake ‘common to the parties’.

[4]	The first question that needs to be answered, is whether a party who was in court when a judgment was granted, and legally represented, can apply for rescission of judgment. 

Rule 42(1)
[5]	Rule 42(1) provides that:
‘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:
(a)	An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby:
(b)	An order or judgment in which there is ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;
(c)	An order or judgment granted as the result of a mistake common to the parties.’

[6]	It is common cause that the judgment was not granted in the applicant’s absence. The evidence does not point to any ambiguity, patent error or omission contained in the judgment or order. The fact that the court relied on the affidavit filed in resisting summary judgment wherein the applicant conforms under oath that he was a surety, a fact that he now states is wrong, does not mean that the judgment contains a patent error that must be rectified. 

[7]	The applicant does not make out a case that the judgment was granted as a result of a mistake common to the parties. The parties did not approach the court  upon an agreed statement of facts which was later found to be incorrect. The court is also not confronted with a situation similar to where parties erroneously believe a settlement agreement was made an order of court, where no such order was made but, as a result of which a subsequent order for contempt was made, or where parties consented in justus error to a judgment. 

[8]	The respondent averred in its particulars of claim that the applicant was a surety of Enviro-Cast (Pty) Ltd and in the affidavit resisting summary judgment this was conceded. The applicant’s changed view, and his subsequent denial that he was a surety based on newly obtained legal advice, does not render the judgment being granted the result of a mistake common to the parties. 

[9]	 In the result, the applicant does not meet the jurisdictional facts for the impugned judgment and order to be set aside, or varied, in terms of Rule 42(1). The applicant likewise fails to make out a case for the rescission of the judgment in terms of the common law. 

[10]	In light of the above, it is not necessary to address the fact that the applicant approached the court one year and six months after the judgment was granted, without providing any meaningful explanation for the delay. 

[11]	The respondent, as the successful party, is entitled to be awarded the costs of the application. Although the respondent requested the court to grant a punitive costs order, a court should be slow to grant punitive costs. The Constitutional Court emphasised in Public Protector v South African Reserve Bank that:

‘To mulct a litigant in punitive costs … requires a proper explanation grounded in our law.’

Order
In the result the following order is granted:
1.	The application is dismissed with costs.

____________________________
E van der Schyff
Judge of the High Court

Delivered:  This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email. The date for hand-down is deemed to be 10 November 2021.

Counsel for the applicant:	Adv. H.P. Van Staden
Instructed by: 	Francois Uys Inc.
For the respondent:	Adv. E.J.J. Nel
Instructed by:	Barnard Inc.
Date of the hearing:	8 November 2021	
Date of judgment:	10 November 2021