South Africa: South Gauteng High Court, Johannesburg

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 12942/2013

Reportable: No

Of interest to other judges: Yes

25/11/2016

In the matter between:

DR MNCUBE VUSUMUZI STANLEY                                                              First Applicant

MNCUBE NONQHELE NONKULULEKO                                                  Second Applicant

and

ABSA BANK LIMITED                                                                                       Respondent

JUDGMENT

WEINER, J:

[1] In this matter, the applicants apply for a rescission of a judgment granted by this court on 25 November 2014. It is common cause that the respondent applied for summary judgment and that the applicants filed an affidavit resisting summary judgment. There was no appearance for the applicants at the hearing and summary judgment was grnated.

[2] The applicants now apply for rescission of the judgment. The law is clear that where pursuant to an application for summary judgment, the defendant filed affidavit in opposition to the application for summary judgment, the court is not entitled to ignore such affidavit. It cannot be said that defendant is in default because he/she or his/her counsel fails to appear when the application is heard. See Morris v Auto Quip (Pty) Ltd[1]

[3] Where summary judgment is granted under these circumstances, there is accordingly no default and the defendant cannot apply for rescission of judgment. See Verrijdt v Honeydew Tractors and Implements (Pty) Ltd[2] which held that, when a party is not represented by counsel, he is not in default, if an affidavit has been filed.

[4] There is a further case of Slabbert v Volkskas Bank[3], an appeal heard by Melamet and Ackermann JJ where it was argued that, having considered the opposing affidavit, the learned Judge exercised a value judgment on the merits of the matter. Therefore, the only remedy open to the applicant is to ask for leave to appeal and condonation for the late filing of the appeal.

[5] There is no default in the sense in which the word is used in Katritsis v Macedo[4] where the meaning of the word ‘default’ was considered in relation to non-appearance of counsel or a litigant at a trial action. The Court held that the situation was different in a trial action. A judgment can be granted by default when a party fails to appear in a trial action, as a court is not in possession of an affidavit setting out a defence, to which reference can be made, prior to judgment being granted in the summary judgment scenario. It was held, in that matter, that there was no default in that sense and the application brought for the rescission of the summary judgment, was the wrong procedure. The present case is on all fours with Katritsis and accordingly the application for rescission must fail. The applicant may be entitled to apply for leave to appeal but rescission is the incorrect procedure.

[6] Accordingly, the application for rescission is dismissed with costs.

__________________________________________

S WEINER

JUDGE OF THE HIGH COURT

OF SOUTH AFRICA

GAUTENG LOCAL DIVISION,

JOHANNESBURG

[1] 1985 (4) SA 398 (W)