THE SUPREME COURT OF APPEAL
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
OF SOUTH AFRICA

Reportable

Case No 127/2002
In the matter between

PIETER WESTERMAN COLYN

Appellant
and
TIGER FOOD INDUSTRIES LIMITED
trading as MEADOW FEED MILLS CAPE

Respondent

Coram:
Olivier, Cameron JJA, et Jones AJA
Heard:
11 March 2003
Delivered: 31 March 2003
Summary: Rescission of judgment – Rule 42(1)(a) – mistake by
attorneys – order not erroneously granted – good cause not shown
for rescission at common law.

JUDGMENT

JONES AJA:

[1] This is an appeal against the dismissal of an application for
rescission of an order for summary judgment. There are two
issues. The first is whether the judgment can properly be
rescinded in terms of rule 42(1)(a). The second issue is whether
the appellant has shown sufficient cause for rescission under the
common law.

[2] I shall deal with rescission in terms of Rule 42(1)(a) first. The
facts are not complicated. The present appellant was the
defendant in an action instituted by the present respondent in
which summary judgment was taken against him. I shall for
convenience refer to the appellant as the defendant, and to the
respondent as the plaintiff. The defendant, a dairy farmer of

Vredendal in the Western Cape, was in dispute with his supplier of
cattle fodder. He refused to pay for cattle fodder concentrate
because, he says, it was defective and caused cattle disease in his
herd with considerable concomitant loss.  The supplier of the cattle
fodder (the plaintiff) eventually issued summons against him out of
the High Court in Cape Town for payment of R397 210.22. The
defendant caused a notice of intention to defend to be filed by his
attorneys, who have an office in Cape Town and also an office at
Bellville. The plaintiff then filed an application for summary
judgment and served it on the defendant’s attorneys of record at
their Cape Town office. That was the proper address for service in
terms of rule 19(3). For reasons which are not clear the application
papers were not forwarded to the Belville office to the attorney
personally conducting the matter. The result was that the summary
judgment application was not drawn to his or the defendant’s

attention. In consequence, no notice of intention to oppose was
given and no opposing affidavit was filed. The plaintiff’s attorney
set the case down for hearing as an unopposed matter, and in due
course on 4 August 2000 Desai J ordered summary judgment by
default. It is accepted that the defendant wanted to defend the
action and that he would have done so if the application had been
brought to the attention of his attorney at Bellville.

[3] The question is whether in these circumstances the
judgment can properly be rescinded in terms of rule 42(1)(a) of the
uniform rules of court. Rule 42(1)(a) provides that the High Court
may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or vary an order
or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby. The arguments before us

centre on the question whether the facts upon which the defendant
relies give rise to the sort of error for which the rule provides and, if
so, whether the order was erroneously sought or erroneously
granted because of it.

[4] As I shall try to explain in due course, the common law
before the introduction of rules to regulate the practice of superior
courts in South Africa is the proper context for the interpretation of
the rule. The guiding principle of the common law is certainty of
judgments. Once judgment is given in a matter it is final. It may not
thereafter be altered by the judge who delivered it. He becomes
functus officio and may not ordinarily vary or rescind his own
judgment (Firestone SA (Pty) Ltd v Gentiruco A.G.)1. That is the
function of a court of appeal. There are exceptions. After evidence

1977 (4) SA 298 (A) 306 F- G.

is led and the merits of the dispute have been determined,
rescission is permissible only in the limited case of a judgment
obtained by fraud or, exceptionally, justus error.2 Secondly,
rescission of a judgment taken by default may be ordered where
the party in default can show sufficient cause. There are also,
thirdly, exceptions which do not relate to rescission but to the
correction, alteration and supplementation of a judgment or order.
These are for the most part conveniently summarised in the
headnote of Firestone SA (Pty) Ltd v Gentiruco A.G. supra3 as
follows:
‘1.
The principal judgment or order may be supplemented in respect of
accessory or consequential matters, for example, costs or interest on the
judgment debt, that the court overlooked or inadvertently omitted to grant.

Childerly Estate Stores v Standard Bank of SA Ltd 1924 OPD 163, De Wet and
others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1040. And see Harms, Civil Procedure in
the Supreme Court, B42-10 and the authorities collected in footnotes 3, 4 and 5.
The headnote is an accurate summary of the passage in the judgment appearing at
pages 306H-308A.

2.
The court may clarify its judgment or order, if, on a proper
interpretation, the meaning thereof remains obscure, ambiguous or otherwise
uncertain, so as to give effect to its true intention, provided it does not thereby
alter "the sense and substance" of the judgment or order.
3.
The court may correct a clerical, arithmetical, or other error in its
judgment or order so as to give effect to its true intention. This exception is
confined to the mere correction of an error in expressing the judgment or
order; it does not extend to altering its intended sense or substance.
4.
Where counsel has argued the merits and not the costs of a case
(which nowadays often happens since the question of costs may depend
upon the ultimate decision on the merits), but the court, in granting judgment,
also makes an order concerning the costs, it may thereafter correct, alter or
supplement that order.’
In the Gentiruco A.G. case Trollip JA left open whether or not this
list is exhaustive.4 The authorities also refer to an exceptional
procedure under the common law in terms of which a court may

At 308 A – 309 B. That is how matters presently stand, despite the reservation in
Seatle v Protea Assurance Co Ltd 1984 (2) SA 537 (C) 542 at H- 543 A.

recall its order immediately after having given it, or within a
reasonable time thereof, either meru motu or on the application of
a party, which need not be a formal application (De Wet and others
v Western Bank Ltd supra5; First national Bank of SA Ltd v
Jurgens6; Tom v Minister of Safety and Security.7 This procedure
has no bearing on this case.

[5] It is against this common law background, which imparts
finality to judgments in the interests of certainty, that Rule 42 was
introduced. The rule caters for mistake. Rescission or variation
does not follow automatically upon proof of a mistake. The rule
gives the courts a discretion to order it, which must be exercised
judicially (Theron NO v United Democratic Front (Western Cape

Footnote 2 at 1044 E – 1045G.
1993 (1) SA 245 (W) 246. I
[1998] 1 All SA 629 (E) 637i – 638a.

Region) and others)8 and Tshivhase Royal Council and another v
Tshivhase and another; Tshivhase and another v Tshivhase and
another.9

[6] Not every mistake or irregularity may be corrected in terms of
the rule. It is, for the most part at any rate, a restatement of the
common law. It does not purport to amend or extend the common
law10. That is why the common law is the proper context for its
interpretation. Because it is a rule of court its ambit is entirely
procedural.

[7] Rule 42 is confined by its wording and context to the
rescission or variation of an ambiguous order or an order

1984 (2) SA 532 (C) at 536G.
1992 (4) SA 852 (A) 862J – 863A.
Harms, Civil Procedure in the Supreme Court, B42-1. But see the reservation in
Tshivase Royal Council v Tshivase supra (footnote 9) at 862 I.

containing a patent error or omission (rule 42(1)(b)); or an order
resulting from a mistake common to the parties (rule 42(1)(c); or
‘an order erroneously sought or erroneously granted in the
absence of a party affected thereby’ (rule 42(1)(a)). In the present
case the application was, as far the rule is concerned, only based
on rule 42(1)(a) and the crisp question is whether the judgment
was erroneously granted.

[8] The trend of the courts over the years is not to give a more
extended application to the rule to include all kinds of mistakes or
irregularities. This is illustrated by the facts of De Wet and Others v
Western Bank Ltd11 which is a decision of this court. I shall confine
my consideration of this judgment to the appeal of the 2nd, 3rd, 4th
and 5th appellants in so far as it relates to rescission under rule

1979 (2) SA 1031 (A).

42(1)(a). These appellants were in default of appearance at the
resumed hearing of their trial. This was because their attorney had
withdrawn (but not in terms of the rules) without informing them
directly of his withdrawal or of the date of the resumed hearing. He
had sent a message to their agent (a former co-litigant in the same
proceedings whom they had appointed to deal with the attorney on
their behalf) that he had withdrawn and giving the new trial date,
but the agent had not passed it on to them. Counsel for the
respondent sought and was granted an order in terms of rules
39(1), (3) and (4) for dismissal of their claims in convention and
judgment against them by default on the counterclaim. The
appellants applied for rescission of these orders. Their applications
were dismissed12. They appealed to the full bench of the Transvaal

De Wet and others v Western Bank Ltd 1977 (2) SA 1033 (W).

Provincial Division. Their appeals were dismissed13. In a further
appeal to this court Trengrove AJA had this to say14 during the
course of dismissing the appeals and rejecting an argument that
the judgment against them had been erroneously sought or
granted under rule 42(1)(a):
‘Firstly [counsel] contended that the Court of first instance should have
rescinded the judgments and orders in question under the provisions of Rule
42(1)(a) as being judgments and orders "erroneously sought and erroneously
granted" against the appellants, in their absence. A number of arguments
were advanced in support of this proposition. Counsel for the appellants
referred, in the first instance, to the fact that, in withdrawing as attorney for the
appellants, Lebos had failed to comply with the provisions of Rule 16 (4) in at
least two respects. This is common cause. The formal notification to the
Registrar did not specify the date when, the parties to whom, and the manner
in which notification was sent to all parties concerned, and it was not

De Wet and others v Western Bank Ltd 1977 (4) SA 770 (T).
At 1038 B-G.

accompanied by a copy of last-mentioned notification. It was, accordingly,
contended that the proceedings before VAN REENEN J were irregular and
that the judgments against the appellants had been erroneously sought and
granted. In my view there is no substance whatever in this contention. The
appellants cannot avail themselves of the fact that their attorney had not
complied with all the requirements of Rule 16 (4). There is no question of any
irregularity on the part of the respondent. At the stage when Lebos withdrew
as the appellants' attorney, the case had already been set down for hearing
on 16 August 1976 in accordance with the Rules of Court, and there was no
need for the respondent to serve any further notices or documents on the
appellants in connection with the resumed hearing. As far as the trial Court
was concerned the Rules of Court had been fully complied with and the notice
of trial had been duly given. When the case was called before VAN REENEN
J neither the appellants nor their legal representative were present in Court,
and, in the circumstances, the respondent's counsel was fully entitled to apply
for an order of absolution from the instance with costs in terms of Rule 39 (3)
in respect of the appellants' claims and to move for judgment against the

appellants under Rule 39 (1) on the counterclaim. The fact that the appellants
had not been advised timeously of the withdrawal of their attorney is, of
course, a factor to be taken into account in considering whether good cause
has been shown for the rescission of the judgments under the common law,
but it is not a circumstance on which the appellants can effectively rely for the
purpose of an application under the provisions of Rule 42(1)(a).’

[9] The same reasoning applies in this case. The defendant
describes what happened as a filing error in the office of his Cape
Town attorneys. That is not a mistake in the proceedings. However
one describes what occurred at the defendant’s attorneys’ offices
which resulted in the defendant’s failure to oppose summary
judgment, it was not a procedural irregularity or mistake in respect
of the issue of the order. It is not possible to conclude that the
order was erroneously sought by the plaintiff or erroneously
granted by the judge. In the absence of an opposing affidavit from

the defendant there was no good reason for Desai J not to order
summary judgment against him.

[10] During the course of argument counsel drew our attention to
conflicting approaches of the courts to the proper application of
rule 42(1)(a). Bakoven Ltd v GJ Howes (Pty) Ltd,15 and Tom v
Minister of Safety and Security16 hold that the ‘error’ must be
patent from the record of proceedings and that the court is
confined to the four corners of the record to determine whether or
not rule 42(1)(a) is applicable. Stander v ABSA Bank Bpk17 on the
other hand permits external evidence of the ‘error’. The conflict
seems to me to obscure the real issue, which is to determine the
nature of the error in question. This judgment concludes that what
happened in this case did not amount to an error in terms of the

1992 (2) SA 466 (E).
[1998] 1 All SA 629 (E).
1997 (4) SA 873 (E).

rule, regardless of whether or not it manifested itself in the record
of proceedings. It is consequently unnecessary for present
purposes to say anything more about the conflict.

[11] I turn now to the relief under the common law. In order to
succeed an applicant for rescission of a judgment taken against
him by default must show good cause (De Wet and others v
Western Bank Ltd supra).18 The authorities emphasize that it is
unwise to give a precise meaning to the term good cause. As
Smalberger J put it in HDS Construction (Pty) Ltd v Wait:19
‘When dealing with words such as "good cause" and "sufficient cause" in
other Rules and enactments the Appellate Division has refrained from
attempting an exhaustive definition of their meaning in order not to abridge or
fetter in any way the wide discretion implied by these words (Cairns'

At 1042 F- 1043 C.
1979 (2) SA 298 (E) at 300 in fine – 301 B.

Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345 (A) at 352-3). The Court's discretion must be exercised after
a proper consideration of all the relevant circumstances.’
With that as the underlying approach the courts generally expect
an applicant to show good cause (a) by giving a reasonable
explanation of his default; (b) by showing that his application is
made bona fide; and (c) by showing that he has a bona fide
defence to the plaintiff's claim which prima facie has some
prospect of success (Grant v Plumbers (Pty) Ltd20, HDS
Construction (Pty) Ltd v Wait supra,21 Chetty v Law Society,
Transvaal.22)

[12] I have reservations about accepting that the defendant’s
explanation of the default is satisfactory. I have no doubt that he

1949 (2) SA 470 (O) 476
At 300 F-301C. See footnote 19.
1985 (2) SA 756 (A) at 764 I – 765 F.

wanted to defend the action throughout and that it was not his fault
that the summary judgment application was not brought to his
attention. But the reason why it was not brought to his attention is
not explained at all. The documents were swallowed up somehow
in the offices of his attorneys as a result of what appears to be
inexcusable inefficiency on their part. It is difficult to regard this as
a reasonable explanation. While the courts are slow to penalize a
litigant for his attorney’s inept conduct of litigation, there comes a
point where there is no alternative but to make the client bear the
consequences of the negligence of his attorneys (Saloojee and
Another NNO v Minister of Community Development23). Even if
one takes a benign view, the inadequacy of this explanation may
well justify a refusal of rescission on that account unless, perhaps,
the weak explanation is cancelled out by the defendant being able

1965 (2) SA 135 (A).

to put up a bona fide defence which has not merely some
prospect, but a good prospect of success (Melane v Santam
Insurance Co Ltd24).

[13] The defendant has not been able to put up a defence which
has good prospects of success. Indeed, his prospects of success
are so remote that it cannot in my view be said that he has a bona
fide defence. The claim is for payment of the price of cattle fodder
concentrate sold and delivered to the defendant. The defence is
that the plaintiff’s product was contaminated, and that after it had
been mixed with other ingredients and fed to his dairy herd it

1962 (4) SA 531 (AD) 532 C – F, but note also the remarks of Miller JA in Chetty v
Law Society, Transvaal (footnote 22) at 767 J – 769 D: ‘As I have pointed out, however, the
circumstance that there may be reasonable or even good prospects of success on the merits
would satisfy only one of the essential requirements for rescission of a default judgment. It
may be that in certain circumstances, when the question of the sufficiency or otherwise of a
defendant's explanation for his being in default is finely balanced, the circumstance that his
proposed defence carries reasonable or good prospects of success on the merits might tip
the scale in his favour in the application for rescission. (Cf Melane v Santam Insurance Co Ltd
1962 (4) SA 531 (A) at 532.) But this is not to say that the stronger the prospects of success
the more indulgently will the Court regard the explanation of the default. An unsatisfactory and
unacceptable explanation remains so, whatever the prospects of success on the merits. In the
light of the finding that appellant's explanation is unsatisfactory and unacceptable it is
therefore, strictly speaking, unnecessary to make findings or to consider the arguments
relating to the appellant's prospects of success. Nevertheless, in the interests of fairness to
the appellant, it is desirable to refer to certain aspects thereof.’

caused illness and death. The defendant intends to counterclaim
for damages, which are provisionally assessed at about R1· 5
million. His founding affidavit alleges that the cattle fodder
concentrate was infested with ergotamine poisoning. In two
supplementary affidavits he alleges that it could also have been
infested with botulism. I am satisfied that the defendant has no
prospect whatever of establishing either of these defences.

[14] The defendant has led no evidence at all to relate the
condition of his dairy herd to ergotamine poisoning or botulism. He
cannot give this evidence himself. He is patently not qualified to
express scientific opinions, draw conclusions from symptoms, or
diagnose the cause of the illness and death of his cattle. The
closest he can get to a diagnosis of ergotamine poisoning is an
allegation that his veterinary surgeon suspected that this might be

the case. This caused him to have fodder samples analysed for
ergotamine infestation. There is no affidavit from the veterinary
surgeon to support this, and no reasons are given to explain why
he entertained his suspicions. There is also no evidence to
substantiate a diagnosis of botulism. Nobody suggested it at the
time. The idea was planted in the defendant’s mind by an animal
fodder expert whom the defendant met while attending a ‘World
Dairy Expo’ in the United States of America and who thought, from
the defendant’s account of the symptoms exhibited by his cattle,
that botulism was a possibility. This led to an analysis of fodder
samples for botulism. But unless there is admissible evidence of
the results of the analyses, the defendant does not make out a
prima facie case. There is no such evidence. The defendant has
not filed affidavits from the persons who did the analyses to
confirm and explain their results, despite objection to the

admissibility of the stated results in the defendant’s opposing
affidavits.

[15]  Even if I overlook the problems of proof, ignore the rules of
evidence and have reference to all the information placed before
the court whether it is admissible or not, the defendant’s case is
insufficiently made. For his case of ergotamine poisoning he relies
on the results of the tests done by the Commission for Scientific
and IndustriaI Research, and for his case on botulism he relies on
tests which were done in the USA. According to the defendant two
certificates in respect of two tests done on two occasions by the
CSIR show that the fodder samples tested positive for ergotamine
contamination. He has also produced two certificates from the
USA, one of which, in his words, ‘shows conclusively that all five
samples tested positive for the Clostridial species, the toxin

causing botulism’, and that because of this result he has ‘a strong
case against [the plaintiff] and . . . good cause exists to set aside
the judgment’. These contentions are insupportable. This is
because the plaintiff has adduced a wealth of expert scientific
evidence which is admissible and which the defendant has made
no attempt to contradict. This evidence shows
1. that the fodder concentrate was not contaminated with
ergotamine and that no reliance can be placed on the results of the
CSIR analyses. Other analyses were done both at the plaintiff’s
instance and the defendant’s instance. An expert consulted by the
defendant, Dr Naude formerly of the Onderstepoort Veterinary
Institute, arranged for an analysis and a repeat analysis of material
from the samples analysed by the CSIR to be done by the
University of Missouri-Columbia in the USA, with negative results.
(These results were made available by the defendant but are also

not confirmed on oath.) The plaintiff arranged for an analysis to be
done by Paarl Laboratories Analytical Services CC, which, in the
person of its analytical chemist and manager Geyer, performed
three different analyses on three separate occasions on material
from the CSIR samples, all with negative results. The second
analysis by the CSIR was done in Geyer’s presence and he
reports that the equipment, technique and methodology used by
the CSIR technician was incapable of producing a reliable result.
The plaintiff also arranged for an analysis of the material from the
CSIR samples to be done by Dr Van der Merwe of Stellenbosch
University, with highly sophisticated equipment. Those results
positively exclude ergotamine contamination and Dr Van der
Merwe’s evidence also explains why the CSIR analyses were
flawed and their results unreliable. As a result of all of this Dr
Naude, whose affidavit is part of the opposing papers although he

was initially the defendant’s witness, contacted the CSIR who
advised him that they had made a mistake in their previous testing
and that, on further re-testing, no ergot alkaloids were found to be
present in the samples;
2. that a diagnosis of botulism can be excluded. There is no
evidence that the defendant’s cattle suffered from botulism. There
is no affidavit from the analyst who did the tests in the USA and no
expert evidence to relate the Clostridial species allegedly found in
the sample to what happened to the cattle. The reason is not
difficult to find. The evidence of the plaintiff’s experts is that
botulism is caused by a toxin produced by some, but not all,
strains of the bacterium Clostridium botulinum. In order to make a
positive diagnosis it would be necessary to isolate not only the
particular strain of C. botulinum found to be present in the fodder,
but also to isolate the toxin which it produced. This has not been

done. Even more important, the experts explain that only C.
botulinum produces strains which produce the botulism toxin.  No
C. botulinum was found in any of the samples analysed by the
defendant. It appears from the defendant’s certificates that two
species of Clostridium were identified, C. per fringens and C.
cadaveris. These species do not produce botulism. Their possible
presence in the fodder takes the matter no further;
3. that ergot poisoning is unlikely to cause fatalities and that the
symptoms exhibited by the defendant’s cattle, which the defendant
thinks were consistent with ergotamine poisoning, are inconclusive
and do not substantiate a diagnosis of ergotamine poisoning. This
is clear from the uncontradicted evidence of a number of veterinary
surgeons whose affidavits also show that symptoms of botulism
cannot be mistaken for symptoms of ergotamine poisoning, and

that the symptoms displayed by the defendant’s cattle do not
support a diagnosis of botulism.

[16] The defendant is able to prove that his cattle, which had
been healthy, began to show symptoms shortly after he put them
on the plaintiff’s fodder concentrate. He was not able to establish
from post mortem examinations and other tests any cause of the
deaths or illness which followed. In view of the close proximity in
time, so it is argued, it is reasonable to conclude for the purpose of
these proceedings that the plaintiff’s fodder is the agent probably
responsible for the deaths and illness, whatever the specific cause
might be. As against this, the plaintiff’s fodder was mixed with
other ingredients not supplied by the plaintiff before it was fed to
the defendant’s cattle which could have been contaminated. Ten
or so other cattle farmers in the district had been feeding their

stock with the plaintiff’s fodder concentrate at about that time, with
no untoward consequences. Furthermore, the defendant had not
followed the plaintiff’s instructions relating to the feeding of young
animals, which may be a reason for unfortunate side effects. In the
light of these considerations it cannot be said that an argument
premised on reasoning along the lines of post hoc ergo propter
hoc – reasoning which is frequently regarded as unreliable to
prove causation – shows a prima facie defence which in the
circumstances of this case is bona fide.

[17]  In the result the defendant has not shown good cause for a
rescission order under the common law, and he has not shown
that he is entitled to rescission in terms of rule 42(1)(a). The
appeal is accordingly dismissed with costs, which shall include the
costs of two counsel.

RJW JONES
Acting Judge of Appeal

CONCURRED:

OLIVIER JA
CAMERON JA