Uys v Afrisam South Africa (Pty) and Another (13436/2020) [2021] ZAGPPHC 760 (10 November 2021)

Uys v Afrisam South Africa (Pty) and Another (13436/2020) [2021] ZAGPPHC 760 (10 November 2021)

The court held that the applicant was present and legally represented when the summary judgment was granted, and had conceded under oath to being a surety. The applicant's subsequent change of position, based on new legal advice, does not constitute a mistake common to the parties nor does it meet the requirements...

Source-derived case information.

Citation
[2021] ZAGPPHC 760
Parties
Applicant: F Uys; Respondent: Afrisam South Africa (Pty); Respondent: C A Metzer
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 November 2021
Case Number
13436/2020
Procedural Posture
Rescission Application / Judgment
Outcome
Application dismissed with costs.
Judges
E van der Schyff
Legal Topics
Rescission of Judgment, Rule 42, Common Law Rescission
Civil Procedure Rescission of Judgment Rule 42 Common Law Rescission

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Parties

F Uys

Applicant

Afrisam South Africa (Pty)

Respondent

C A Metzer

Respondent

Procedural Posture

Rescission Application / Judgment

Legal Issues

  1. 1 Whether a party present and legally represented at the granting of judgment may apply for rescission under Rule 42(1).
  2. 2 Whether the judgment was granted as a result of a mistake common to the parties.
  3. 3 Whether the applicant meets the jurisdictional requirements for rescission under Rule 42(1) or the common law.

Ratio Decidendi

The court held that the applicant was present and legally represented when the summary judgment was granted, and had conceded under oath to being a surety. The applicant's subsequent change of position, based on new legal advice, does not constitute a mistake common to the parties nor does it meet the requirements for rescission under Rule 42(1) or the common law. There was no ambiguity, patent error, or omission in the judgment. The applicant failed to establish the jurisdictional facts necessary for rescission, and the delay in bringing the application was unexplained and irrelevant given the lack of merit. The application was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.