Rossitter v Nedbank Ltd (96/2014) [2015] ZASCA 196 (1 December 2015) per Mbha JA (Navsa, Shongwe and Mathopo JJA and Baartman AJA concurring):

The Supreme Court of Appeal allowed the appeal and rescinded and set aside the default judgment in the High Court.  The rescission application was brought under Uniform rule 42(1)(a), on the basis that the default judgment had erroneously been sought and granted in the absence of the appellants and the appeal was with the leave of Pillay J. It was also held that the rule did not require ‘good cause’ to be shown.


[15]      It is common cause that the notice of intention to apply for default judgment does not comply with the prescripts of rule 31(5)(a) read in conjunction with para 2.3 of the practice manual.  The notice did not provide a time and date on which default judgment would be sought – the summons had been served more than six months before the application for default judgment was made thus the requirements of para 2.3 had to be complied with.  The respondent’s notice was therefore lacking.  Simply put, it was procedurally defective.  I pause to mention that a practice manual or directive duly promulgated by the Judge President of a division of the High Court, has the same force and effect as the Uniform rules.[1]

[16]      The law governing an application for rescission under Uniform rule 42(1)(a) is trite.  The applicant must show that the default judgment or order had been erroneously sought or erroneously granted.  If the default judgment was erroneously sought or granted, a court should, without more, grant the order for rescission.[2] It is not necessary for a party to show good cause under the subrule.[3]  Generally a judgment is erroneously granted if there existed at the time of its issue a fact which the court was unaware of, which would have precluded the granting of the judgment and which would have induced the court, if aware of it, not to grant the judgment.[4]  There can be no doubt that if the registrar had been made aware of the procedural defect in the rule 31(5)(a) notice, default judgment would not have been granted.   In Lodhi 2 Properties Investments CC v Bondev Development (Pty) Ltd 2007 (6) SA 87 (SCA), Streicher JA held that if notice of proceedings to a party was required but was lacking and judgment was given against that party such judgment would have been erroneously granted.  The following appears in para 24:

‘Where notice of proceedings to a party is required and judgment is granted against such party in his absence without notice of the proceedings having been given to him such judgment is granted erroneously.  That is so not only if the absence of proper notice appears from the record of the proceedings as it exists when judgment is granted but also if, contrary to what appears from such record, proper notice of the proceedings has in fact not been given.  .  .  .’

It follows that the default judgment in the present case had been erroneously granted and that the appellants were entitled to have it rescinded.   The court below accordingly erred in dismissing the application for rescission of judgment.

[1] National Pride Trading 452 v Media 24 Ltd 2010 (6) SA 587 (ECP) para 31.

[2] Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E) at 471G.

[3] National Pride Trading 452 (Pty) Ltd v Media 24 Ltd 2010 (6) SA (ECP) at 597I-598B.

[4] Erasmus: Superior Court Practice 2 ed (Revision Service 1, 2015) Vol 2 at D1-567. See also Naidoo v Matlala NO 2012 (1) SA 143 (GNP) at 153C.