Leo Manufacturing CC v Robor Industrial (Pty) Ltd t/a Robor Stewarts & Lloyds

Robor Industrial (Pty) Ltd instituted action in the Durban Magistrates’ Court in 2001 for payment of R62 998,07 for goods sold and delivered. The summons incorrectly cited the defendant as “Leon Manufacturing CC” instead of “Leo Manufacturing CC” and was served at an address which was no longer the appellant’s registered office. Default judgment was granted in May 2002. After a writ of execution and attachment of assets, Leo Manufacturing CC applied to set aside the attachment and later for rescission of the default judgment, alleging that there had been no proper service and that the proceedings and judgment were therefore void ab origine. In its rescission application, however, the appellant failed to set out any grounds of defence to the claim on the merits. The Magistrates’ Court, the Full Court, and ultimately the Supreme Court of Appeal were asked to determine whether rescission could be granted in these circumstances.

The appeal was dismissed with costs.

The case authoritatively confirms that, under South African magistrates’ court procedure, rescission of a default judgment is not available as of right even where the judgment is alleged to be void ab origine. It underscores the peremptory nature of rule 49(3) and clarifies the interaction between rules 49(3) and 49(8), reinforcing procedural discipline in rescission applications.