Vermeulen and Another v Bense Building Contractors CC (6954/2024P) [2025] ZAKZPHC 112 (28 October 2025)

Case Note

Vincent Vermeulen and Shereen Vermeulen v Bense Building Contractors CC
Case No: 6954/2024P
Date: 28 October 2025

Reportability

This case is reportable due to its examination of the principles surrounding the rescission of judgment, specifically under the provisions of Uniform Rule 42(1)(a) and the common law. The judgment highlights important procedural aspects regarding the requirement for timely action in seeking rescission and the implications of peremption, which bears significant relevance for litigants facing default judgments. It also addresses the interplay between acknowledgment of debt and applicable legislation such as the National Credit Act, reaffirming the judiciary's role in adjudicating disputes related to contractual obligations.

Cases Cited

1. Kgomo and Another v Standard Bank of South Africa and Others 2016 (2) SA 184 (GP).
2. Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466.
3. Naidoo v Matlala NO 2012 (1) SA 143 (GNP).
4. Government of the Republic of Zimbabwe v Fick [2013] ZACC 22; 2013 (5) SA 325 (CC).
5. Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture [2021] ZACC 28; 2021 (11) BCLR 1263 (CC).
6. Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality [2007] ZASCA 70; 2007 (6) SA 511 (SCA).
7. Hlatshwayo v Mare and Deas 1912 AD 242.
8. Dabner v South African Railways and Harbours 1920 AD 583.
9. Standard Bank v Estate van Rhyn 1925 AD 266.
10. Schmidlin v Multisound (Pty) Ltd 1991 (2) SA 151 (C).
11. South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38; 2017 (1) SA 549 (CC).

Legislation Cited

• National Credit Act 34 of 2005.

Rules of Court Cited

• Uniform Rule 42.

HEADNOTE

Summary

In this matter, the applicants sought rescission of a default judgment that had been granted to the respondent. The court dismissed the application primarily on the grounds of peremption, finding that the applicants had acquiesced to the judgment through their conduct that indicated acceptance of its validity.

Key Issues

The case addressed several key legal questions, including: - Whether the applicants had provided grounds for rescission under Uniform Rule 42. - The applicability of peremption as a defense against the rescission of the default judgment. - Whether the acknowledgment of debt constituted a credit agreement under the National Credit Act.

Held

The court held that the application for rescission was dismissed on the grounds that the applicants had perempted their right to challenge the default judgment through their conduct, which demonstrated acquiescence.

THE FACTS

The applicants, Vincent and Shereen Vermeulen, contracted with the respondent, Bense Building Contractors CC, for the construction of a dwelling in South Africa. The total contract amount was R2,500,000. However, due to the COVID-19 pandemic and subsequent financial strains, the applicants failed to complete payments as agreed. An acknowledgment of debt for R670,000 was signed by the applicants, affirming their liability for the outstanding amount. Ultimately, the respondent obtained a default judgment against the applicants when they failed to appear in court. The applicants later sought to rescind this judgment, citing inability to comply with procedural requirements and an assertion that the acknowledgment constituted a credit agreement under the National Credit Act, which had not been adhered to by the respondent.

THE ISSUES

The court was tasked with determining whether the applicants had established sufficient grounds for rescission of the default judgment, including the nuances of their alleged ignorance of the service of the summons and the impact of the acknowledgment of debt in relation to the National Credit Act. Furthermore, the court needed to assess the issue of peremption based on the applicants' conduct following the default judgment.

ANALYSIS

The court examined the legal principles surrounding rescission of judgments under Uniform Rule 42, highlighting that a judgment can be rescinded if it was granted erroneously in the absence of a party. Although the applicants claimed they were unaware of the summons due to inadequate service by the sheriff, the court found that they had previously acknowledged their debt, which indicated their implicit acceptance of the situation. The court noted that the applicants’ efforts to settle the outstanding debt at reduced amounts further reflected their acquiescence to the need for a judgment against them. The judiciary emphasized the importance of finality in legal proceedings, noting that allowing the applicants to retract their acceptance after the passage of considerable time would undermine judicial authority.

REMEDY

The court ordered the dismissal of the rescission application, with costs to be borne by the applicants. Costs were to be taxed on scale B, indicating the court's discretion in determining the appropriate level of costs based on the nature of the case.

LEGAL PRINCIPLES

This judgment underlined several key legal principles: - The necessity for prompt action in seeking rescission of a judgment, emphasizing that delays can lead to peremption. - The interplay between acknowledgment of debts and the criteria set forth in the National Credit Act, indicating that not all debts necessarily fall within the Act's purview. - The doctrine of peremption, which prevents parties from challenging a judgment after acquiescing to it through their conduct. This reinforces the principle that legal certainty is crucial in the resolution of disputes.