Benson and Another v Standard Bank of SA Ltd and Others (17143/2011) [2014] ZAGPJHC 428 (14 October 2014)

Benson and Another v Standard Bank of SA Ltd and Others (17143/2011) [2014] ZAGPJHC 428 (14 October 2014)

The court found that the order dismissing the applicants' rescission application was not erroneously granted. All relevant affidavits had been filed and were before the court, which made its decision on the record. The applicants were not in default, as they had participated in the proceedings by filing affidavits. The absence of the applicants from the correct courtroom did not render the judgment a default judgment. Therefore, the judgment was not susceptible to rescission under Rule 42(1)(a). The applicants' remedy, if any, lies in seeking leave to appeal and pursuing an appeal, not in a further rescission application.

Citation
[2014] ZAGPJHC 428
Parties
Applicant: Johan Marvin Benson; Applicant: Gloria Valentia Benson; Respondent: The Standard Bank of SA Ltd; Respondent: Ex-Sheriff Johannesburg West; Respondent: H.M. Botha; Respondent: The Registrar of Deeds, Johannesburg; Respondent: Gert Cornelius du Plessis
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 October 2014
Case Number
17143/2011
Procedural Posture
Civil Application / Application for Rescission of Order Dismissing Previous Rescission Application
Outcome
Application for rescission dismissed with costs.
Judges
Weiner
Legal Topics
Rescission of Judgment, Default Judgment, Rule 42, Erroneously Granted Order
Civil Procedure Rescission of Judgment Default Judgment Rule 42 Erroneously Granted Order

Case Brief

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Parties

Johan Marvin Benson

Applicant

Gloria Valentia Benson

Applicant

The Standard Bank of SA Ltd

Respondent

Ex-Sheriff Johannesburg West

Respondent

H.M. Botha

Respondent

The Registrar of Deeds, Johannesburg

Respondent

Gert Cornelius du Plessis

Respondent

Procedural Posture

Civil Application / Application for Rescission of Order Dismissing Previous Rescission Application

Legal Issues

  1. 1 Whether the order dismissing the applicants' rescission application was erroneously granted and thus capable of rescission under Rule 42.
  2. 2 Whether the judgment by Mia AJ constituted a default judgment susceptible to rescission.
  3. 3 Whether the applicants' remedy lies in appeal rather than rescission.

Ratio Decidendi

The court found that the order dismissing the applicants' rescission application was not erroneously granted. All relevant affidavits had been filed and were before the court, which made its decision on the record. The applicants were not in default, as they had participated in the proceedings by filing affidavits. The absence of the applicants from the correct courtroom did not render the judgment a default judgment. Therefore, the judgment was not susceptible to rescission under Rule 42(1)(a). The applicants' remedy, if any, lies in seeking leave to appeal and pursuing an appeal, not in a further rescission application.

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application for rescission is dismissed.
  • The applicants are ordered to pay the costs of the application.