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

CASE NO: 2241/2010

In the matter between:

and

GAMBLE, J:

INTRODUCTION

[2] After an exchange of correspondence between the parties' attorneys (to which ! shall return more fully hereunder) the Applicant paid to the bank the sum of R50 000,00 in full and final settlement of the bank's claim against him.

THE BASIS UPON WHICH THE APPLICATION FOR RESCISSION WAS BROUGHT

[6] Perusal of the founding affidavit in this application wil! show that there is no allegation therein which brings the matter within the purview of Rule 42(1 )(a) which reads 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:

'(a) An order or judgment erroneously sought or erroneously granted in the absence Of any party affected thereby

[7] It is trite that in motion proceedings a party's affidavit must contain all allegations of fact and law upon which it wishes to rely and that it is not permitted to beef up its case in reply. But that is just what the Applicant went about doing.

THE BANK'S OPPOSITION

[9] The bank's attorney went on to point out in his affidavit that immediately after the attempted service of the writ referred to above he was contacted by the Applicant's attorneys yet again with a reauest regarding the prospective terms of settlement of the matter. The bank acceded to that request and on 23 Juiy 2010 its attorneys wrote to the Applicant's attorneys in the following terms:

2010."

[10] That amount was duly paid by the Applicant and on 28 July 2010 his attorneys wrote to the bank's attorneys as follows:

"We refer to the above matter and thank you for your co-operation nerein thus far.

We request that you revert to us as soon as possible whether your client would be prepared to consent to a rescission of judgment on a (sic) basis on (sic) the debt had (sic) oeen paid in full

We await your urgent response to enable us to prepare the necess3r>>< documentation for signature by your client"

THE CASE IN REPLY
[11] In the replying affidavit the Applicant's version is somewhat different to that made out in the founding papers. A futile attempt is made to explain away the obvious knowledge which his attorneys had on 18 March 2010 of the existence of the summons, but the crux of his case appears from paragraph 2.3 thereof which t shall cite in full:
*f wish to bring to the Courts attention that ! have a successful electrical business thai specialised (sic) in the electrical installations for large developments and that I would not be able to provide these services if I have a default judgment against my name which would then prevent me from obtaining the necessary credit from suppliers. My profits on these (sic) type of installations are considerably more per development than what the Respondent had claimed from me.

In these circumstances, ! honestly need to bring to this Honourable Court's attention that it is better to protect my credit record than to be blacklisted due to a judgment against me."

[12] In an attempt to explain away the claim by the bank that the matter had been settled by payment of the sum of R50 000.00 the Applicant says the following in reply;

"/ fail to unoerstand why the Respondent fails to grasp that the payment of the amount, was the lesser of two very undesirable options for myself and that I had (sic) chosen to pay for reasons as set out eadier and not because I believe that I had no defence, i respectfully submit that i do have a bona fide defence. The fact that I did make payment, is not an acknowledgment that I do not have a defence."

[13] Counsel for the Applicant argued that, whatever the provisions of Rule 42 may be, his client was nevertheless entitled to approach the Court for relief under the common law. Strictly speaking the replying affidavit should have been struck out but since there was no application in that regard. I shall proceed to consider whether there is any merit in the Applicant's case as amplified.

THE CURRENT APPROACH TO RESCISSION APPLICATIONS IN THIS DIVISION 

14.1. An applicant must satisfy the Court that there is some reasonably-satisfactory explanation as to why the judgment was permitted to be taken by default; and

So that, whatever equitable need may in the past have been felt to exist for departing from the long-establ/shed principles of law to which I have referred: has now been more or less effectively dealt with by the legislature. I hasten to add that the mere expungement of certain information about debtors from the statutory records maintained by debt bureaux is. of course, something entirely different from and far iess radical than the expungement from court records of judgments and orders which have been lawfully, competently, regularly and properly handed down by the courts."

In the present case the Applicant was legally represented shortly after issue of the summons and has oniy himself to blame for the fact that judgment was taken against him.

In the present case counsel for the Applicant suggested that in fact it would be required of the bank to repay the amount upon which the parties had settled.

[18] In relation to the latter mentioned aspect I would point out that in the founding papers the Applicant alleged that the principle debt due to the bank was the liability of a close corporation of which he was formerly a member. He went on to say that he had disposed of his interest in the corporation some years before and had requested the bank to release him from his liability as surety and close the account.

•/ can therefore see nothing in the needs of these credit bureaus or their masters (or the debtor who was indebted at the time) for the court process to be abused by granting leave to defend a matter in which the cause of action

COSTS
[23] The amount of the claim in this matter is well within the jurisdiction of the magistrates court, so much so that it could almost be regarded as paltry in High Court terms. Rule 31(5)(e) places a limitation on the costs award which the Registrar may make when granting default judgment. That award is even lower in cases which fall within the jurisdiction of the magistrates court.

ORDER
[25] The application for rescission of the default judgment granted in this case by the Registrar on 30 March 2010 is dismissed with costs, such costs to be taxed on the magistrates court scale. For purposes of taxation it is recorded that the engagement of junior counsel in this matter was warranted.