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South Africa Judgment

High Courts - Gauteng

Lemottee v Marais [2007] ZAGPHC 378; 59/06/01 (28 February 2007)

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Source document

01

Holding and result

The court found that the applicant failed to establish any grounds under Rule 42(1) or common law for rescission of the summary judgment. There was no evidence of fraud, Justus error, or exceptional circumstances, nor was the judgment granted as a result of a mistake common to the parties. The applicant's absence was due to a misunderstanding, but this did not constitute a valid basis for rescission. The court emphasized that the appropriate remedy for the applicant is to seek leave to appeal from the judge who granted the summary judgment. Consequently, the application for rescission was dismissed with costs.

Court disposition

Application for rescission of summary judgment dismissed with costs.

Orders

  • The application for rescission of summary judgment is dismissed.
  • The applicant is ordered to pay the costs of the application.

02

Material facts

Parties

Lemottee Agnew

Applicant Counsel: Mr Dlaminini

Marais W

Respondent

03

Procedural history

  1. Posture

    Urgent Application / Application for Rescission of Summary Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant, represented by Mr Dlaminini, argued that the summary judgment should be set aside due to his absence on 26 February 2007, which was caused by a misunderstanding. He contended that rescission is permissible under Rule 42(1) if the judgment was erroneously sought or granted, or on common law grounds such as fraud or Justus error, referencing Nyingwa v Moolman NO. He maintained that exceptional circumstances justified rescission.
Respondent
The respondent opposed the application, arguing that the proper remedy for a party aggrieved by summary judgment is to seek leave to appeal from the judge who granted the order. The respondent asserted that the applicant failed to demonstrate that the judgment was obtained by fraud, Justus error, or any exceptional circumstances, nor that it was granted as a result of a mistake common to the parties.

05

Court’s reasoning

  1. 01

    Rule 42(1) Uniform Rules of Court

    Rescission of judgment may be granted under Rule 42(1) if the judgment was erroneously sought or granted in the absence of a party affected, or as a result of a mistake common to the parties.

  2. 02

    Nyingwa v Moolman NO 1993 (2) SA 508 (TK)

    Summary judgment may be set aside on common law grounds of fraud, Justus error, or in exceptional circumstances.

  3. 03

    Louis Joss Motors (Pty) Ltd v Riholm 1971 (3) SA 452 (T)

    The proper course for a party aggrieved by summary judgment is ordinarily to seek leave to appeal from the judge who granted the order.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant failed to establish any grounds under Rule 42(1) or common law for rescission of the summary judgment. There was no evidence of fraud, Justus error, or exceptional circumstances, nor was the judgment granted as a result of a mistake common to the parties. The applicant's absence was due to a misunderstanding, but this did not constitute a valid basis for rescission. The court emphasized that the appropriate remedy for the applicant is to seek leave to appeal from the judge who granted the summary judgment. Consequently, the application for rescission was dismissed with costs.

Obiter and limits

  • This judgment does not preclude the applicant from seeking leave to appeal from the judge who granted the summary judgment.
  • The applicant may still attempt to persuade the original judge that the judgment was erroneously sought or granted under Rule 42.

Court disposition

Application for rescission of summary judgment dismissed with costs.

  • The application for rescission of summary judgment is dismissed.
  • The applicant is ordered to pay the costs of the application.

Source and reliance status

High Courts - Gauteng

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Judgment text

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Source document

High Courts - Gauteng

Judgment

[2007] ZAGPHC 378

NOT

REPORTABLE

IN

THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 3859/06

DATE:2007/02/28

In the matter between

LEMOTTEE AGNEW.................................................................................................... Applicant

and

MARAIS W............................................................................................................... Respondent

JUDGMENT

WILLIS J: On Monday 26 February 2007, I dismissed with costs an application for a rescission of summary judgment granted by my sister Masipha J on 4 October 2006. During the course of the week, Mr Dlaminini who appears for the applicant and the application for rescission of the judgment informed the court that he was not present on Monday due to a misunderstanding.

I shall accept that this is so. I let counsel re-argue the matter on the assumption that I would have the power to set aside that order granted on Monday, 26 February 2007 by reason by this misunderstanding that could have arisen relating to Mr Dlaminini's

non-appearance on Monday. The fact of the matter is that where summary judgment is granted the proper course for a party, who believes that it was wrongly granted, is ordinarily to seek leave to appeal from the judge who granted such order.

See Louis Joss Motors (Pty) Ltd v Riholm 1971 (3) SA 452 (T). There are the following exceptions which would arise, these being that the application to set aside the judgment is brought in terms of Rule 42 (1), namely that the judgment: - (a) was erroneously sought for or erroneously granted in the absence of any party thereby effected; or (b) was granted as a result of a mistake common to the parties.

I also accept, as was argued by Mr Dlaminini, that a summary judgment can be set aside on common law grounds of fraud, a Justus error and in certain very exceptional cases. See Nyingwa v Moolman NO 1993 (2) SA 508 (TK). The application before me does not satisfy me, that the application for summary judgment was obtained by a reason of fraud,

Justus error or the exceptional circumstances referred to in the Nyingwa v Moolman NO case.

I am also not satisfied that the judgment was granted as a result of a mistake "common to the parties". As was said by White J in the Nyingwa v Moolman N case, revision on the ground that the judgment was erroneously granted, means that at the time of the issue of the judgment there existed a fact of which the judge was unaware and which could have precluded the granting of the judgment if the judge had been aware of it.

I am unable, on the papers before me, to decide that my sister Masipha J granted the summary judgment on the basis of facts of which she was unaware and which may have influence her differently. Accordingly and assuming that I have the power to set aside the order which I granted on 26 February 2007, I see no basis to reverse the judgment out dismissing the application for rescission of the summary judgment.

I wish to emphasise that this judgment does not preclude the applicant in this application from seeking leave to appeal from my sister Masipha J, nor 1 would venture to suggest that it precludes the applicant from seeking to pursuade Masipha J that the judgment was "erroneously sought or erroneously granted" in terms of Rule 42.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Louis Joss Motors (Pty) Ltd v Riholm 1971 (3) SA 452 (T)

Case cited

Nyingwa v Moolman NO 1993 (2) SA 508 (TK)

Case cited

Rule 42(1) Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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