IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO.: 18322/2008

In the matter between

and

JUDGMENT DELIVERED ON 27 OCTOBER 2011

ASSHETON-SMITH, AJ
1. This is an application brought by the Applicant to have the default judgment granted against the Applicant on or about 3 February 2009 rescinded in terms of Uniform Rule 42(1 )(a). The application is opposed by the Respondent who filed an opposing affidavit.
2. In this matter the Applicant failed to enter an appearance to defend (the summons having been served upon him on 6 November 2008) and also failed to attend Court when default judgment was sought and granted. Then the Applicant brought an application for rescission, but failed to place such rescission application before the Court. This first rescission application was dismissed by Justice Baartman with costs on an attorney and client scale. Then the Applicant brought a second application for rescission of the same judgment, which came before Judge Fourie on 3 June 2011 which application was dismissed. The Applicant subsequently brought an application for leave to appeal against this latter judgment which leave to appeal was refused by Justice Fourie.
3. This application is the third in the series of applications that the Applicant has brought for rescission of judgment.
4. Rule 42(1 )(a) provides that:

"(1)    The court may, in addition to any other powers it may have, mero motu or upon 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."

5.1.   the default judgment must have  been erroneously sought or erroneously granted;
5.2. such judgment must have been granted in the absence of the Applicant; and

7. It was submitted by the Respondent's counsel that this application constituted yet another attempt on the part of the Applicant to delay the inevitable. It was also submitted that this application was bordering on an abuse of process. The Applicant's attorney in response to such submissions explained to me that he had recently been appointed as the attorney of record of the Applicant and that he could not understand why the Applicant's erstwhile attorneys and counsel had not picked up on the fact that the default judgment, in his submission, was granted in error, and hence the Applicant was advised to bring the present application.

9. Thus the essential question to be determined in this matter is whether the Applicant has established that the default judgment aforesaid was erroneously granted.

"An order or 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 of 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 (Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd (supra) at 578F-G; De Wet (2) at 777F-G; Tshabalala and Another v Pierre 1979 (4) SA 27 (T) at 30C-D). Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission."

12. The question then arises as to whether the Applicant is correct in its contention that the Court made a mistake in law in granting default judgment in this matter.

"A judgment to which a plaintiff is procedurally entitled in the absence of the defendant cannot be said to have been granted erroneously as contemplated in the sub-rule in light of the subsequently disclosed defence. Such a defence cannot transform a validly obtained judgment into an erroneous one."

"It may even be that applicant is correct in saying that ex facie the particulars of claim, the validity of the cause of action as pleaded may be questioned."

29. It is ordered that:
29.1. the Applicant's application for rescission in terms of Rule 42(1 )(a) is granted;
29.2. the costs of the application are to stand over for later determination by the Trial Court.

ASSHETON-SMITH, AJ