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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 87562/2019
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: YES
DATE: 5 August 2024
SIGNATURE OF JUDGE:
In the matter between:
MOGOLOGOLO METRO SENONG Applicant
and
WILLEM HENDRIK DREYER Respondent
In re:
WILLEM HENDRIK DREYER Plaintiff
and
THE REGISTRAR OF DEEDS First
Defendant
VINCENT MONYEPAO Second Defendant
THABILE SUZAN MONYEPAO Third Defendant
MOGOLOGOLO METRO SENONG Fourth Defendant
GRACIOUS MPOTSENG LEPELESANE Fifth
Defendant
MASHABANE BRIAN KGARIYA Sixth Defendant
MOTALANE KGARIYA INC Seventh Defendant
JUDGMENT
H F OOSTHUIZEN AJ
INTRODUCTION
[1] This is an application in terms of rule 31(2)(b) for rescission of a default
judgement which was granted on 14 June 2022 by Barit AJ against the
applicant, the fourth defendant in the main action. I will for purposes of
convenience refer to the parties as in the main action.
[2] The fourth defendant applies in addition for an order in terms of rule 27(1)
extending the period of 20 days in terms of which the application for
rescission had to be made, which relief is opposed by the plaintiff.
[3] The particulars of claim (as amended) contain the following allegations:
[3.1] The plaintiff is the owner of a property known as erf 8[...],
Atteridgeville Extension […] (“the property”), which was registered in
his name during 2006.
[3.2] The property was transferred fraudulently, alternatively negligently by
the registrar of deeds ( the first defendant) to the fourth and fifth
defendants during 2013.
[3.3] The property was subsequently sold by the fourth and fifth
defendants to the second and third defendants for an amount of
R530 000.00 and was registered jointly in their names.
[3.4] The plaintiff did not conclude an agreement of sale pertaining to the
property, did not consent to the transfer of the property and did not
receive any purchase consideration for the property.
[3.5] The plaintiff claims damages from the first defendant in the amount
of R600 000.00, being the reasonable market value of the property.
[3.6] The plaintiff claims in the alternative payment of the amount of
R530 000.00 from the fourth and fifth defendants on the ground that
they were enriched and the plaintiff impoverished by the fraudulent
transfer of the property.
[3.7] The plaintiff claims in the further alternative an order that the
property be re-registered in his name.
[3.8] The plaintiff claims in the further alternative damages in the amount
of R600 000.00 from the sixth and seventh defendants , the
conveyancers of the property to the fourth and fifth defendants.
[4] The summons was served by the sheriff on 12 December 2019 at the fourth
defendant’s residence on Peter Msholi, the fourth defendant’s cousin.
[5] Notwithstanding the fact that the fourth defendant did not deliver a notice of
intention to defend, the plaintiff did not initially apply for default judgement
against the fourth defendant.
[6] On 4 September 2020, the plaintiff’s application to join the sixth and seventh
defendants in the main action was served by the sheriff at the fourth
defendant’s residence on Monene Makobe, the fourth defendant’s partner.
[7] On 25 August 2021, the plaintiff’s amended particulars of claim was served
by the sheriff at the fourth defendant’s residence on Monene Makobe, the
fourth defendant’s partner.
[8] On 26 May 2022, the plaintiff’s notice of setdown of the application for
default judgement against the fourth defendant was served by the sheriff at
the fourth defendant’s residence on his wife.
[9] The fourth defendant did not take any action pursuant to the service of the
court papers set out in paragraphs [6] to [8] above.
RESCISSION AND CONDONATION
[10] An applicant for rescission and condonation must in terms of rules 31(2)(b)
and 27(1) show “good cause”.
[11] The term “ good cause ” defies precise or comprehensive definition but it is
clear that two essential elements must be demonstrated:
[11.1] the part y seeking relief must provide a reasonable and acceptable
explanation for their default; and
[11.2] on the merits , such party must demonstrate a bona fide defence
which, prima facie, carries some prospect of success.1
[12] Miller JA elaborated as follows on these requirements in Chetty:2
1 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at765A-C
2 At 765C-E and 767J-768C
“It is not sufficient if only one of these two requirements is met; for
obvious reasons a party showing no prospect of success on the merits
will fail in an application for rescission of a default judgement against
him, no matter how reasonable and convincing the explanation of his
default. And ordered judicial process would be negated if, on the other
hand, a party who could offer no explanation of his default other than
his disdain of the Rules was nevertheless permitted to have a
judgement against him rescinded on the ground that he had
reasonable prospects of success on the merits…
[T]he circumstance that there may be reasonable or even good
prospects of success on the merits would satisfy only one of the
essential requirements for recission of a default judgement. 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… 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.”
[13] Miller JA ultimately found that the appellant had satisfied the second of the
two requisites for recission but in view of his failure to satisfy the first
requisite, the dismissal of the application for rescission by the court of first
instance was upheld and the appeal dismissed.
[14] The principles set out in Chetty has been confirmed by the Constitutional
Court in Government of the Republic of Zimbabwe v Fick 3 and Zuma v
Secretary of the Judicial Commission of Inquiry into Allegations of State
3 2013 (5) SA 325 (CC) para [85] and [86]
Capture, Corruption and Fraud in the Public Sector including Organs of
State.4
[15] Khampepe J held as follows in Zuma:5
“[T]he existing common law test is simple: both requirements must be
met. Mr Zuma must establish that he had a reasonable and satisfactory
explanation for his failure to oppose these proceedings, and that he
has a bona fide defence that carries some prospects of success.”
[16] It accordingly follows that the submission of Mr Sekwakweng on behalf of the
fourth defendant that an unsatisfactory and unacceptable explanation can be
overcome by good prospects of success, is wrong.
[17] The decision of Demetrio v Absa Bank Ltd ,6 on which Mr Sekwakweng
relies, does not support his submission. After quoting the dictum in Zuma,
which I have quoted in paragraph [15], Mahalelo J held as follows:
“An element of the explanation for the default is that the applicant must
show that it was not in wilful default. If the case the applicant makes
out on wilful default is not persuasive, that is not the end of the enquiry
- the applicant’s case may be rescued if a bona fide defence is
demonstrated.”
[18] Support for this dictum is found in Harris v Absa Bank Ltd t/a Volkskas 7
where Moseneke J (as he then was) held that:
“The absence of ‘wilful default ’ is not an express requirement under
Rule 31(2)(b) or the common law . It is, however, clear law that an
enquiry whether sufficient cause has been shown is inextricably linked
4 2021 JDR 2069
5 Para [71]
6 (A5083/2021) [2023] ZAGPJHC 649 (06 June 2023)
7 2006 (4) SA 527 (T) paras [6] and [9]
to or dependent upon whether the applicant acted in wilful disregard of
Court rules, processes and time limits…
I do not agree that once wilful default is shown the applicant is barred;
that he or she is then never entitled to relief by way of rescission as he
or she has acquiesced. The Court’s discretion in deciding whether
sufficient cause has been established must not be unduly restricted. In
my view, the mental element of the default, whatever description
repairs, should be one of the several elements which the court must
weigh in determining whether sufficient or good cause has been shown
to exist.”
[19] Neither decision held that an unsatisfactory and unacceptable explanation
can be overcome by good prospects of success, which decision would be
contrary to the decisions of the Supreme Court of Appeal and the
Constitutional Court quoted above. Both decisions in fact referred to these
decisions, which were binding on them.
THE FOURTH DEFENDANT’S EXPLANATION FOR HIS DEFAULT
[20] The founding affidavit contain s the following explanation for the fourth
defendant’s failure to give notice of intention to defend the action:
[20.1] The fourth defendant was approached during December 2019 by the
sixth defendant, enquiring whether the fourth defendant knew
anything about a case against him.
[20.2] The fourth defendant thereafter asked his wife whether she had
received any documents from the sheriff. She confirmed that she
had received the summons but at that stage the time allowed for
delivering a notice of intention to defend had already lapsed.
[20.3] The fourth defendant sought legal advice and was informed that the
plaintiff would apply for default judgement and that he would have to
apply for rescission of the default judgement. The fourth defendant
failed to indicate who provided this legal advice.
[21] The fourth defendant became aware of the default judgement when a writ of
execution was executed by the sheriff on 9 August 2022 , which implies that
the fourth defendant was obliged to institute the application for rescission of
judgement by 6 September 2022.
[22] The founding affidavit was deposed to and the notice of motion was signed
on 26 September 2022. The application was only served on the plaintiff on
10 October 2022. No explanation for this delay of approximately two weeks
is provided.
[23] The only explanation why the fourth defendant failed to apply for rescission
of judgement within the prescribed time period is that he was only able to
raise funds for such application just after the prescribed time period had
expired whereafter he consulted his attorneys. The fourth defendant
contends that the delay was not unreasonable.
[24] The fourth defendant failed to deal with the service of the plaintiff’s
application to join the sixth and seventh defendants and of the amended
particulars of claim in either the founding or replying affidavits.
[25] The fourth defendant admits that the notice of setdown of the application for
default judgement was served on his wife, but he alleges that he was at that
stage in Limpopo and only became aware thereof when the warrant was
executed approximately 11 weeks later.
[26] The plaintiff presented evidence in the answering affidavit that the fourth
defendant is a member of six close corporations, a director of three
companies and that he is the registered owner of four immovable properties,
which he purchased between 2007 and 2019 and of which two are
unencumbered by mortgage bond s. He moreover purchased and sold nine
other immovable properties between 2008 and 2017, some for a substantial
profit.
[27] The fourth defendant failed to deny this evidence in the replying affidavit but
stated “that [his] inability to prosecute the matter and to institute the
rescission application timeously, were not wilful and/or intentional but as a
result of [his] financial position.”
[28] The fourth defendant’s replying affidavit was approximately 11 months late.
The only explanation for the failure to comply with the prescribed time period
is that the fourth defendant is “ struggling financially ”. In support of this
allegation the fourth defendant attached copies of his personal bank
statements for the period 1 March 2019 to 28 March 2019; 29 November
2019 to 28 December 2019; 29 November 2022 28 December 2020; and 29
July 2022 to 28 August 2022.
DISCUSSION
[29] The fourth defendant demonstrated the following bona fide defence which,
prima facie, carries good prospects of success:
[29.1] The fourth defendant purchased the property via an estate agent for
an amount of R120 000.00, which amount is reflected on a deed
search, attached to the founding affidavit. The fourth defendant
signed the offer to purchase at the seventh defendant’s offices.
[29.2] The fourth defendant renovated the property at a cost of
approximately R200 000.00 and thereafter sold the property to the
fifth defendant for an amount of R430 000.00, which amount is also
reflected on the deed search.
[29.3] The deed search indicates that the fifth defendant sold the property
to the second and third defendants for R530 000.00.
[29.4] The fourth defendant accordingly denied the plaintiff’s version that
the property was transferred fraudulently and jointly to the fourth and
fifth defendants and that the property was sold jointly by the fourth
and fifth defendants to the second and third defendants for an
amount of R530 000.00.
[29.5] The fourth defendant’s version implies that the fourth defendant
made a profit of approximately R110 000.00 from the transaction
being the selling price of the property to the fifth defendant
(R430 000.00) less the purchase price of the property (R120 000.00)
less the renovations (approximately R200 000.00) and he could
accordingly not have been “enriched” in the amount of R530 000.00,
as pleaded by the plaintiff.
[29.6] Although not on oath, the fourth defendant’s version is supported by
the sixth and seventh defendants’ plea in which it is inter alia
pleaded that the plaintiff signed a power of attorney to transfer the
property to the fourth defendant.
[30] The fourth defendant has not provided a reasonable and acceptable
explanation for his default:
[30.1] The only explanation why the fourth defendant failed to apply for
rescission of judgement within the prescribed time period is that he
was only able to raise funds for such application just after the
prescribed time period had expired, being 6 September 2022. The
fourth defendant failed to indicate what the source of this funding
was.
[30.2] The fourth defendant attached a copy of his personal bank statement
for the period 29 July 2022 to 20 August 2022 to the replying affidavit
but not for any period thereafter.
[30.3] The evidence in the answering affidavit that the fourth defendant is a
member of six close corporations, a director of three companies and
the registered owner of four immovable properties, which he
purchased between 2007 and 2019 and of which two are
unencumbered by mortgage bonds suggests that the fourth
defendant should have access to sufficient funds to finance the
litigation.
[30.4] The bald statement that the fourth defendant was unable to
timeously raise funds for the legal costs to institute this application is
accordingly neither reasonable nor acceptable.
[30.5] It is moreover not explained why it took approximately 13 court days
to draft the application and why the application was only served
approximately 10 court days after the notice of motion had been
signed.
[30.6] On the fourth defendant’s version he became aware of the service of
the summons (which was served on the fourth defendant’s cousin on
Thursday, 12 December 2019) during December 2019.
[30.7] The allegation that the time allowed for delivering a notice of
intention to defend had at that stage already lapsed falls to be
rejected. The combined summons expressly afforded the fourth
defendant 20 days after service to give notice of intention to defend.
[30.8] The alleged legal advice that the plaintiff would apply for default
judgement and that the fourth defendant would have to apply for
rescission of the default judgement , falls to be rejected for the
following reasons:
[30.8.1] it is not indicated who provided the advice and when it
was provided;
[30.8.2] the advice is not supported by a confirmatory affidavit;
[30.8.3] any attorney would have advised the fourth defendant
that the days between 16 December and 15 January
are, in terms of rule 19(1), not counted in the time
allowed within which to deliver a notice of intention to
defend and even if notice of intention to defend is
delivered after the prescribed time period, a plaintiff is
not entitled to apply for default judgement upon receipt
of a notice of intention to defend.
[30.9] The fourth defendant does not deny that the plaintiff’s application to
join the sixth and seventh defendants and the plaintiff’s amended
particulars of claim were served on him , which demonstrated that
judgement had at that stage not been granted against the fourth
defendant.
[30.10] The only explanation why the fourth defendant ignored the notice of
set down of the application for default judgement is that he was at
that stage in Limpopo, which is clearly neither acceptable nor
reasonable.
[30.11] The fourth defendant was accordingly clearly in wilful default.
[31] During argument, Mr Sekwakweng conceded that the fourth defendant did
not provide a reasonable and satisfactory explanation for his default and that
he was in wilful default.
[32] I have already found that the submission of Mr Sekwakweng that an
unsatisfactory and unacceptable explanation can be overcome by good
prospects of success is wrong. An applicant for rescission / condonation
must provide a reasonable and acceptable explanation for their default and
a bona fide defence which, prima facie, carries some prospect of success.
[33] It accordingly follows that the fourth defendant has failed to demonstrate
good cause to extend the period of 20 days to institute this application and to
rescind the default judgement.
ORDER
[34] I accordingly grant an order in the following terms:
[34.1] The fourth defendant’s application to extend the period of 20 days in
terms of which the application for rescission had to be made and the
fourth defendant’s application for rescission are dismissed with costs
on scale A.
H F OOSTHUIZEN AJ
ACTING JUDGE OF THE HIGH COURT
This Judgment was handed down electronically by circulation to the parties’ and or
parties’ representatives by email and by being uploaded to CaseLines. The date and
time for the hand down is deemed to be 5 August 2024.
Appearances
Counsel for the Plaintiff: Adv Bernette Bergenthuin
Instructed by Hurter Spies Inc
Counsel for the Fourth Defendant: Adv M D Sekwakweng
Instructed by Ipeleng Motshegoa Attorneys
Date of Hearing: 22 July 2024
Date of Judgment: 5 August 2024