Van der Merwe v Firstrand Bank t/a Wesbank and Barloworld Equipment Finance (1346/05) [2010] ZAECGHC 132; 2012 (1) SA 480 (ECG) (7 October 2010)

Van der Merwe v Firstrand Bank t/a Wesbank and Barloworld Equipment Finance (1346/05) [2010] ZAECGHC 132; 2012 (1) SA 480 (ECG) (7 October 2010)

The court found that Rule 34(1) is clear and peremptory in requiring written authority for an attorney to sign an offer of settlement. In this case, the applicant's attorney accepted a settlement offer without such written authority, resulting in non-compliance with Rule 34(1). The judgment granted on 20 March 2008 was therefore erroneously granted, as the substantive requirements of the rule were not met. The court distinguished the present facts from those in Lodhi, noting that the error was fundamental and not merely procedural. Had the judge been aware of the lack of written authority, the order would not have been granted. Accordingly, the applicant was entitled to rescission of the...

Citation
[2010] ZAECGHC 132
Parties
Applicant: Roelof Petrus van der Merwe; Respondent: Firstrand Bank Ltd t/a Wesbank and Barloworld Equipment Finance
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
7 October 2010
Case Number
1346/05
Procedural Posture
Rescission Application / Application for Rescission of Judgment and Condonation for Late Filing
Outcome
Application for rescission granted; order of 20 March 2008 rescinded; applicant granted leave to defend; costs reserved for trial court.
Judges
M Makaula
Legal Topics
Rescission of Judgment, Rule 34 Offer of Settlement, Written Authority Requirement, Rule 42 Erroneous Grant, Condonation
Civil Procedure Rescission of Judgment Rule 34 Offer of Settlement Written Authority Requirement Rule 42 Erroneous Grant Condonation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 7 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Roelof Petrus van der Merwe

Applicant

Firstrand Bank Ltd t/a Wesbank and Barloworld Equipment Finance

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Judgment and Condonation for Late Filing

Legal Issues

  1. 1 Whether the order granted on 20 March 2008 should be rescinded due to non-compliance with Rule 34(1).
  2. 2 Whether the applicant's attorney was authorised in writing to make an offer of settlement on behalf of the applicant.
  3. 3 Whether the judgment was erroneously granted in terms of Rule 42(1)(a) due to lack of written authority for the offer.

Ratio Decidendi

The court found that Rule 34(1) is clear and peremptory in requiring written authority for an attorney to sign an offer of settlement. In this case, the applicant's attorney accepted a settlement offer without such written authority, resulting in non-compliance with Rule 34(1). The judgment granted on 20 March 2008 was therefore erroneously granted, as the substantive requirements of the rule were not met. The court distinguished the present facts from those in Lodhi, noting that the error was fundamental and not merely procedural. Had the judge been aware of the lack of written authority, the order would not have been granted. Accordingly, the applicant was entitled to rescission of the...

Court Disposition

Application for rescission granted; order of 20 March 2008 rescinded; applicant granted leave to defend; costs reserved for trial court.

Orders

  • The applicant's failure to apply for rescission within the required time period is condoned.
  • The order granted by this court on 20 March 2008 is rescinded and set aside.