Summary of Judgment

1. Introduction

This judgment concerns an urgent reconsideration application brought in terms of Uniform Rule 6(12)(c), which permits a party against whom an urgent order was granted in its absence to set that order down for reconsideration.

The proceedings were between Dreamworx Prop Investments Holdings CC (first applicant) and two associated individual applicants (second and third applicants), on the one hand, and Tapera William Nyemba (first respondent), together with additional respondents including Kabir Khan, Kabir Kahn Attorneys, and the City of Johannesburg Metropolitan (fourth respondent), on the other. The dispute arose from an eviction matter relating to immovable property in Bryanston.

The procedural history was central to the judgment. On 20 August 2018, Wright J granted an eviction order against the applicants (described in the reconsideration proceedings as a default judgment). The applicants then launched an urgent application seeking rescission of that judgment, a stay of execution, and the setting aside of a writ. On 4 September 2018, Makume J, after hearing the matter in the absence of the respondents, granted an order rescinding the default judgment, staying execution, and setting aside the writ, together with an attorney-and-client costs order.

The matter then came before Adams J on 14 September 2018, when the first to third respondents sought reconsideration of Makume J’s urgent order under Rule 6(12)(c). The respondents had filed affidavits which served both as the founding papers for reconsideration and as their answering affidavit to the applicants’ rescission application. The general subject-matter of the dispute was therefore whether the applicants were entitled to rescission of the eviction/default judgment (and related execution relief), and whether the earlier urgent order granting rescission should stand.

2. Material Facts

The first respondent was the registered owner of the immovable property forming the subject of the eviction proceedings, namely Portion 3 of Erf 3183, Bryanston Extension 7 Township, situated at 44 Old Kilcullen Road, Bryanston Extension 7.

It was accepted for purposes of the decision that an eviction order had been granted on 20 August 2018. That eviction order was the order the applicants sought to rescind in the urgent application heard by Makume J, and which Makume J rescinded on 4 September 2018 in the respondents’ absence.

The court treated as material that the property had been sold to the first applicant during 2015, but that the sale agreement was cancelled during 2017 due to breaches of the agreement attributable to the first applicant, in particular the failure to pay the agreed purchase price timeously or at all. The existence of the cancellation (and the applicants’ lack of a current right to occupy arising from a subsisting sale) underpinned the first respondent’s claim that the applicants had no lawful basis to remain in occupation.

Two principal grounds advanced by the applicants to resist eviction (and to support rescission) were addressed. First, the applicants asserted that they remained interested in purchasing the property and were eager to conclude the deal notwithstanding the cancellation. Secondly, the applicants contended that they held a builder’s lien over the property.

The court regarded the “continued interest in purchasing” assertion as not constituting a defence to eviction where the applicants had no right to occupy after cancellation of the sale agreement. The court also treated the applicants’ builder’s lien allegations as materially deficient: the version was described as sketchy and lacking necessary detail, and (on the papers) so implausible that it could be rejected.

In addition, the court treated as decisive the contractual context: on the applicants’ own reliance on the sale agreement, any lien-related protection would only arise if transfer was not effected for reasons not caused by the first applicant. On the court’s assessment, the non-transfer and cancellation flowed from the first applicant’s breaches (including non-payment), placing the purported lien defence outside the contractual preconditions relied upon.

3. Legal Issues

The first central issue was the scope and exercise of the court’s power under Uniform Rule 6(12)(c): whether Makume J’s urgent order, granted in the respondents’ absence, should be reconsidered, and on what material the reconsideration should proceed.

A related issue was whether, in reconsideration proceedings, the court was confined to the record before the court at the time of the original urgent order or could consider additional affidavits and facts placed before it on reconsideration. This was treated as a question of procedural law affecting the fairness and completeness of the reconsideration process.

The substantive issue was whether, on reconsideration (and effectively on a redetermination of the rescission application), the applicants had shown grounds sufficient to justify rescission of the default judgment, including whether they had established a bona fide defence with prospects of success on the merits. This required the court to apply established rescission principles to the facts and to resolve motion-proceeding factual disputes in accordance with the applicable approach.

The dispute therefore primarily concerned the application of legal principles to facts (including the evaluation of whether a purported defence was bona fide and legally cognisable), together with the exercise of a discretion inherent in Rule 6(12)(c) reconsideration.

4. Court’s Reasoning

The court began by setting out the text of Uniform Rule 6(12)(c) and emphasised that it confers a power of reconsideration where an urgent order was granted in a party’s absence. Relying on ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W), the court accepted that the rule contemplates a wide discretion, and that relevant considerations may include the reasons for absence, the nature of the order, how long it has operated, whether injustice resulted, the availability of alternative remedies, and the parties’ convenience.

On the proper approach to the reconsideration record, the court considered differing lines of authority. It referred to Rhino Hotel & Resort (Pty) Ltd v Forbes and Others 2000 (1) SA 1180 (W), which described reconsideration as a redetermination with the benefit of the respondent’s argument and suggested the original application is reconsidered “on its own”. However, the court preferred the approach adopted in Oosthuizen v Mijs 2009 (6) SA 266 (W), which held that reconsideration should occur with the benefit not only of argument but also of the facts in affidavits filed for reconsideration. The court also aligned this with The Reclamation Group (Pty) Ltd v Smit and Others 2004 (1) SA 215 (SE), which accepted that reconsideration may proceed on a set of circumstances different from those under which the original ex parte order was obtained.

Adams J reasoned that this broader approach better serves the purpose of Rule 6(12)(c), which was linked to the fundamental principle of natural justice, audi alteram partem, particularly where the initially absent party places relevant matter before the reconsidering court. As a result, the court proceeded on the basis of the affidavits delivered for reconsideration, which in practice meant adjudicating the rescission dispute on a fuller set of papers than those before Makume J.

In addressing factual disputes, the court adopted the established motion-proceedings rule in Plascon–Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A). It stated that the question was whether, on the respondents’ version (to the extent admitted) together with the applicants’ allegations, the relief was justified, and that the court could reject applicants’ allegations only if they were so far-fetched or untenable as to warrant rejection on the papers.

Turning to the merits, the court concluded that the applicants’ rescission application was not bona fide and that they had failed to raise a prima facie defence to the eviction claim. The court treated the first respondent’s ownership and the cancellation of the sale agreement as critical: the applicants’ stated continued interest in buying the property did not constitute a defence to eviction where the applicants had no ongoing right of occupation following cancellation. The court regarded this stance as reinforcing, rather than undermining, the first respondent’s claim that occupation was unlawful.

The court then assessed the alleged builder’s lien defence. It held that the applicants’ presentation of the lien was so implausible and inadequately particularised that it could be rejected on the papers, and that, in any event, the defence failed legally because the contractual provision relied upon could only assist the first applicant if transfer was not effected for reasons not attributable to the first applicant. On the court’s findings, the cancellation and failure of transfer were the consequence of the first applicant’s material breach, including failure to pay the purchase price.

Finally, the court applied rescission principles as formulated in Chetty v Law Society, Transvaal 1985 (2) SA 756 (A), highlighting that sufficient cause requires meeting two elementary requirements and that lack of prospects on the merits is fatal to rescission regardless of any explanation for default. On that basis, it held that the rescission application should have failed and thus that Makume J’s urgent order granting rescission (and associated execution relief) could not stand on reconsideration.

5. Outcome and Relief

The court granted the reconsideration application under Uniform Rule 6(12)(c) and set aside the order granted by Makume J on 4 September 2018.

It replaced that order with an order dismissing the applicants’ urgent rescission application. As a consequence, the interim execution relief granted by Makume J (including the stay and setting aside of the writ) fell away with the replacement order.

On costs, the court ordered that the first, second and third applicants pay the costs of the first, second and third respondents relating to the rescission application, jointly and severally, and further ordered that the applicants pay the costs of the Rule 6(12)(c) reconsideration application, also jointly and severally.

Cases Cited

ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W)

Rhino Hotel & Resort (Pty) Ltd v Forbes and Others 2000 (1) SA 1180 (W)

Oosthuizen v Mijs 2009 (6) SA 266 (W)

National Director of Public Prosecutions v Braun and Another 2007 (1) SA 189 (C)

The Reclamation Group (Pty) Ltd v Smit and Others 2004 (1) SA 215 (SE)

Plascon–Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A)

Chetty v Law Society, Transvaal 1985 (2) SA 756 (A)

Legislation Cited

No legislation was cited in the judgment beyond the court’s reliance on the Uniform Rules of Court as procedural law.

Rules of Court Cited

Uniform Rule of Court 6(12)(c)

Held

The court held that Rule 6(12)(c) empowers a wide reconsideration of urgent orders granted in a party’s absence, and that the reconsidering court may consider additional affidavits and facts placed before it, consistent with audi alteram partem.

On the merits of rescission, the court held that the applicants failed to establish a bona fide, legally cognisable defence to eviction. Their continued desire to purchase the property did not confer a right to occupy after cancellation of the sale agreement, and the asserted builder’s lien was both inadequately supported on the papers and, in any event, incompatible with the contractual preconditions given that the first applicant’s breach caused the cancellation and non-transfer.

Accordingly, the court held that the urgent order previously granted (rescinding the eviction/default judgment and granting execution relief) had to be set aside and replaced with an order dismissing the rescission application, with costs against the applicants.

LEGAL PRINCIPLES

Rule 6(12)(c) reconsideration entails a wide discretion, and relevant considerations are not exhaustively defined; they may include the circumstances of absence, the nature and impact of the order, potential injustice, and practical convenience, as reflected in the approach in ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W).

In reconsideration proceedings, the court may undertake a redetermination with the benefit of both argument and further factual material placed before it, aligning with Oosthuizen v Mijs 2009 (6) SA 266 (W) and consistent with the fairness rationale of audi alteram partem.

Where factual disputes arise in motion proceedings, the court applies the Plascon–Evans approach, generally deciding the matter on the respondents’ version (where not genuinely disputable) together with the admitted and sustainable allegations of the applicants, rejecting an applicants’ version only where it is so far-fetched or untenable that it cannot be accepted on the papers.

Rescission at common law requires satisfaction of both an acceptable basis for the default and the existence of a bona fide defence with prospects of success; absence of prospects on the merits is fatal regardless of the explanation for default, in accordance with Chetty v Law Society, Transvaal 1985 (2) SA 756 (A).