IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 21341/243
In the application between:
RONEL CANDICE VAN LOUW
Identity number: 8[…]
Applicant
[Defendant in main action]
and
NEDBANK LIMITED
(Registration number: 1951/000009/06)
Respondent
[Plaintiff in main action]
In re: the action between:
NEDBANK LIMITED
Plaintiff
And
RONEL CANDICE VAN LOUW Defendant
Coram: Acting Justice A Montzinger
Heard: 03 September 2024
Delivered electronically: 03 September 2024
JUDGEMENT
Montzinger AJ:
Summary Introduction
1. This is an opposed application to rescind a default judgment.
2. On 22 July 2022, the applicant1 and the respondent2, (“Nedbank”), concluded
an instalment sale agreement for a 2022 Chery Tiggo 7 Pro 1.5T Distinction
CVT vehicle. By February 2023, the applicant had defaulted on the
instalments. Nedbank then instructed an external debt collector to en gage
with the applicant to settle the arrears, conclude a repayment arrangement, or
agree to a voluntary surrender of the vehicle. On 13 February 2023, the debt
collector attempted to contact the applicant but was unsuccessful.
3. In March 2023, Nedbank cont inued to communicate with the applicant
regarding the arrears on her account, which at that stage amounted to
R19,709.41, excluding collection and legal fees. On 25 April 2023, Nedbank
received a Form 17.1 notification indicating that the applicant had applied for
debt review with a K Schweidler, a debt counsellor. However, the debt
counsellor failed to provide Nedbank with an acceptable repayment proposal,
and the applicant’s account fell further into arrears. Consequently, Nedbank
decided to pursue legal action.
4. On 20 September 2023, Nedbank's attorneys sent a notice to the applicant,
terminating the purported debt review process 3. Additional termination notices
followed, with no response from the applicant. On 27 November 2023,
Nedbank issued summons, which the Sheriff personally served on the
applicant on 14 December 2023. Nedbank sought the termination of the sale
agreement, the return of the vehicle, and associated costs. The applicant did
not file a notice of intention to defend the action.
1 As the defendant in the action
2 As the plaintiff in the action
3 28 September 2023, 23 October 2023, and 30 October 2023
5. On 19 March 2024, Nedbank applied to the Registrar for default judgment,
which was granted on 10 April 2024. Following this, a warrant for t he delivery
of the vehicle was issued and personally served on the applicant by the
Sheriff on 30 May 2024. The vehicle was removed from the applicant's
possession that same day. This prompted the applicant to launch an urgent
application on 9 July 2024, s eeking to prevent the sale of the vehicle at an
auction pending the finali sation of a rescission application. The applicant
premised the rescission on rule 42(1)(a) of the Uniform Rules of Court that the
judgement was erroneously sought and granted in her absence.
6. The urgent application was set down for 23 July 2024. However, the issue of
staying the auction became moot as Nedbank decided to keep the vehicle in
safekeeping pending the outcome of the rescission application. The parties
agreed to a draft orde r providing for the postponement of the rescission
application and the filing of further affidavits. Despite this, no replying affidavit
or heads of argument were filed on behalf of the applicant. Although the issue
of staying the warrant of removal was mo ot, the heads of argument filed on 2
September 2024 still referenced the application to stay the execution of the
default judgment without addressing the rescission application.
7. In any event, I am satisfied that issue of the stay of the warrant of removal is
moot and that there is only a rescission application before me.
Procedural issues and conduct of attorneys
8. The conduct of the attorney representing the applicant in this matter falls far
below the standard of professionalism expected by a legal professional. On 2
September 2024, after lunch, Advocate Desmond M Gabone, who claimed to
have been instructed by Ramabu Attorneys, belatedly filed heads of
argument. However, these heads of argument failed to address the issue of
the rescission of judgment, focusing instead on the application to stay the
warrant of removal—a matter that was moot and not before the court.
9. On the morning of the hearing, at 09:04, my registrar received an email from
Mr. J November, who identified himself as the secretary of Mr. Ramabu. This
email informed the court that Advocate Gabone had withdrawn from his
mandate to appear and that no alte rnative arrangements had been made for
representation. In court, I was informed that this was due to a lack of finances.
The email also stated that Mr. Ramabu was indisposed and was being
monitored in Johannesburg, with a medical note to be provided as soo n as
possible. A postponement was requested through this email. Nedbank’s
attorney opposed the request, highlighting the inappropriateness of seeking a
postponement via email and emphasi sing that the applicant, as dominus litis,
should be present in court.
10. At 10:05, Mr. November appeared in court on behalf of Ramabu Attorneys. It
was immediately apparent that Mr. November was not an admitted legal
practitioner, nor did he present himself in a manner befitting the decorum of
the court. His casual attire was inconsistent with the professional standards
expected of someone working in a legal office or who respects the court.
When asked to substantiate his claims about receiving a message from Mr.
Ramabu early in the morning, Mr. November stated that the phone c ontaining
the message was left at home.
11. The conduct of Mr. Ramabu of Ramabu Attorneys in this matter is to be
strongly deprecated. His actions—failure to file a replying affidavit, condoning
the filing of inadequate heads of argument on the incorrect issu e, failure to
ensure proper representation at the hearing, and the unprofessional
behaviour by a representative of his office exhibited in court —fall woefully
short of the standards mandated by the Legal Practice Act and the Code of
Conduct for Legal Practitioners, as established by the Legal Practice Council.
According to the Legal Practice Act 28 of 2014, attorneys are expected to
uphold the dignity and decorum of the legal profession, act with integrity, and
ensure that their conduct does not bring the p rofession into disrepute. The
actions of Mr. Ramabu in this case reflect a disregard for these principles and
undermine the trust placed in legal practitioners by the court and the public.
12. While I will refrain from referring the matter to the Legal Practic e Council at
this stage, I will certainly take this conduct into account when evaluating an
appropriate order for costs. Mr. Garces , who appeared for Nedbank,
confirmed his instructions to oppose any further postponement and requested
the court to decline any further delay and rather dispose of the matter. I
agreed with Mr. Garces that another postponement would only endorse the
reprehensible conduct of the attorneys. I therefore refused the postponement
and proceeded to hear the matter on the merits.
The applicant’s case in support of the rescission
13. The applicant’s basis for the rescission of the judgement is not entirely clear.
Although reliance is placed on a claim that the default judgment was
erroneously granted in her absence and that there were procedural errors that
should have precluded the Registrar from granting the judgment , i t is not
entirely clear what the procedural errors were. It seems as if the applicant
relies on the fact that she was apparently under debt review at the time the
default judgment was granted , and if that was the case default judgment
should not have been granted. To support this proposition the applicant relies
on not being properly served with the summons and the ss 86(10) termination
of debt review notices.
14. It also seemed as if the applicant wants to rely on the fact that the registrar
was not empowered to grant the default judgement. Lastly, t he applicant also
asserted that she has a bona fide defence against Nedbank’s claim, which
has good prospects of success if she can just be allowed to defend the action.
She also claims that if the court does not rescind the judgement it would result
in unfair prejudice against her.
Nedbank’s grounds of opposition
15. Nedbank contended that the applicant was in wilful default in not defending
the summons as she had personal notice of the summons . Nedbank
emphasised that the judgment was not granted as a result of a procedural
error, as the applicant suggests, but was th e result of her own failure to
engage with the summons timely and appropriately.
16. Nedbank further argues that it had fully complied with the provisions of ss
86(10) of the NCA, which allowed it to terminate the debt review process. This
termination notices were served via email, registered post, and service by the
Sheriff. The notices were not only served on the applicant but also served on
her debt counsellor , and the National Credit Regulator . The applicant’s claim
that she did not receive these notices is, according to Nedbank,
unsubstantiated.
17. Additionally, Nedbank asserts that the applicant does not have a bona fide
defence to its claim. It points out tha t the applicant does not dispute entering
into the instalment sale agreement or her failure to make payments as
required under the instalment sale agreement. Despite numerous
communications from Nedbank advising the applicant of the action and the
requirement to settle the arrears or reach an acceptable payment
arrangement, the applicant failed to take substantive action to resolve the
matter. This inaction, Nedbank argues, demonstrates the applicant’s wilful
default, and her attempt to rescind the judgment is merely a tactic to delay the
enforcement of the judgment to which Nedbank is lawfully entitled.
18. In respect of the allegations of prejudice Nedbank contends that any prejudice
claimed by the applicant is outweighed by the prejudice that would be suffered
by Nedbank if the judgment is not enforced, particularly in light of the
continued depreciation of the vehicle and the applicant’s ongoing default
under the credit agreement.
The legal principles
19. In a rescission of a judgment application, particularly where the applicant
relies on an alleged error in the procedure, the law is well -established and
provides specific grounds under which such an application may be brought.
The rule governing rescission in this context is Rule 42(1)(a) of the Un iform
Rules of Court, which allows a court to rescind or vary an order or judgment
that was: "erroneously sought or erroneously granted in the absence of any
party affected thereby."
20. For an applicant to succeed under Rule 42(1)(a), two fundamental
requirements must be met . Firstly, the judgment must have been granted in
the absence of the party seeking rescission. This requirement is generally
straightforward, but our courts have emphasi sed that the "absence" must be
unintentional or due to circumstances be yond the applicant's control. The rule
is designed to protect parties who were precluded from participating in the
proceedings, not those who deliberately chose not to participate 4. Secondly,
the judgement or order must have been erroneously sought or gra nted. This
encompasses situations where there was a procedural irregularity that, had
the court been aware of it at the time, would have precluded the granting of
the judgment. The error could relate to the non -service of a required notice,
the absence of a cause of action, or the failure to follow statutory procedures5.
The error need not appear on the face of the record; it is sufficient if the error
existed at the time of the judgment, making the order legally incompetent.
21. The case law is clear that the purpose of Rule 42(1)(a) is not to afford a
litigant a second opportunity to contest the merits of the case, but rather to
correct procedural errors that led to an unjust outcome. In Freedom v
Hassam6 the court reiterated that an application for resciss ion based on
procedural error must demonstrate that the judgment was erroneously
granted due to a material fact that, if known to the court, would have
prevented the judgment from being issued.
22. It is also important to note that Rule 42(1)(a) does not requi re the applicant to
show "good cause" as is required under Rule 31(2)(b). However, the court
retains a discretion and is not obliged to rescind the judgment merely because
4 Van Vuuren v Jansen 1977 (3) SA 1062 (T)).
5 Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA)
6 Freedom Stationery (Pty) Limited and Others v Hassam and Others 2019 (4) SA 459 (SCA)
(“Freedom v Hassam”)
an error is shown. The discretion must be exercised judicially, considering the
broader principles of fairness and justice7.
23. In situations where the applicant alleges no t having received notices or the
summons, the courts have emphasi sed the importance of proving that the
error in service was material to the granting of the judgment. As articulated
Munien v BMW8 the fact that a notice was not received does not automatically
entitle the applicant to rescission if the notice was duly sent to the correct
address and the applicant failed to act on it.
24. I will evaluate the applicant's rescission application by applying the principles
foreshowed.
Evaluation
25. In considering the applicant's rescission application, I am confronted with a
glaring and fundamental difficulty: the applicant has failed to identify a
material proced ural error in the granting of the default judgment. The
cornerstone of her case —that the judgment was erroneously granted in her
absence—is untenable given the clear evidence that she was personally
served with the summons on 14 December 2023. In considering the returns of
service by the Sheriff, the court is guided by the principle that such returns are
considered prima facie evidence of the truth of their contents 9. There is no
substantive evidence to dispute the accuracy of these returns. As a result, I
am constrained to accept the Sheriff's return as evidence of the service of the
summons.
26. It is well-established that for a rescission to succeed under Rule 42(1)(a), the
applicant must demonstrate both the absence of her participation in the
proceedings and that such absence resulted from an error. In this case,
7 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State and Others [2021] ZACC 28
8 Munien vs BMW Fina ncial Services (SA) (Pty) Ltd and Another 2010 (1) SA 549 (KZD) (“Munien v
BMW”)
9 Van Vuuren v Jansen 1977 (3) SA 1062 (T)
however, there is no procedural error to speak of, as the summons was duly
served, and the applicant, having been personally served, had ample
opportunity to defend the action but chose not to. Th ere is also no error in the
Court Registrar granting the judgment, as no notice of intention to defend was
filed.
27. The timeline of events further undermines the applicant’s proposition. Upon
receiving the summons, she engaged in several communications with
Nedbank between December 2023 and January 2024. She acknowledged her
arrears and actively sought to negotiate a settlement. This is significant as it
confirms that the applicant was not only aware of the legal proceedings but
also knew of the potential con sequences should the arrears remain unsettled.
Despite these ongoing discussions, the applicant made no meaningful attempt
to file a notice of intention to defend. As early as 3 January 2024, Nedbank
made it clear that legal action would proceed unless the arrears were settled.
Her inaction in these circumstances is indicative of wilful default, not an
erroneous grant of a judgment.
28. Additionally, the applicant’s claim of being under debt review does not provide
a sufficient ground for rescission. Nedbank followed the process in terms of ss
86(10) of the National Credit Act, addressing multiple notices to the applicant
and the relevant parties involved in the debt review process. As noted in Lodhi
v Bondev Developments 10 a judgment is not erroneously granted merely
because a defence could have been raised but was not. The error must relate
to the procedure, and in this case, there is no evidence of any procedural
flaw.
29. The courts have consistently held that the protection offered under Rule
42(1)(a) does not extend to litigants who choose to remain inactive. The
Supreme Court of Appeal made it clear in Freedom Stationery v Hassam that
the rule serves to correct procedural errors that led to an unjust outcome but
10 Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA)
does not allow a litigant to avoid the consequences of wilful action that results
in non-compliance.
30. In respect of my discretion to grant rescission where fairness and justice
dictate such an outcome 11 it would rather be fair considering the
circumstances of this matter to exercise m y discretion against granting a
rescission.
31. Finally, it is worth noting that the mere assertion that the applicant was under
debt review does not entitle her to the relief sought. As noted in Munien vs
BMW12, once the credit provider has complied with the termination procedures
under ss 86(10) of the NCA, the onus shifts to the consumer to take action.
Conclusion
32. In light of the foregoing, the applicant has failed to identify any procedural
error, nor has she provided a reasonable explanation for her failure to defend
the action despite being personally served. Accordingly, I find that the
judgment was correctly granted, and there is no basis for rescission.
33. In respect of costs, the conduct of Mr. Ramabu, warrants an award of costs
de bonis propriis. The principle underlying such an award is that it is typically
reserved for instances where a person acting in a representative capacity has
conducted litigation in a manner that is negligent, unreasonable, or that lacked
bona fides13. The actions of Mr. Ramabu in this case by failing to comply with
a court order for the filing of papers and heads of argument, the last-minute
withdrawal of counsel, th e condonation of the submission of irrelevant heads
of argument by the advocate , and the unprofessional manner in which the
court appearance w as handled, all point to a lack of diligence and
unprofessional misconduct. Add to that the attempt to seek a post ponement
11 Zuma Zuma v Secretary of the Judicial Com mission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector Including Organs of State and Others [2021] ZACC 28]
12 Munien vs BMW Financial Services (SA) (Pty) Ltd and Another 2010 (1) SA 549 (KZD)
13 Vermaak’s Executor v Vermaak’s Heirs 1909 TS 679 and reaffirmed in Grobbelaar v
Grobbelaar 1959 (4) SA 719 (A).
via email on the day of the hearing, without ensuring proper representation for
his client. Such conduct justifies an order for costs de bonis propriis . I
therefore find that Mr. Ramabu’s conduct was negligent and unreasonable
and accordingly I am inclined to award costs against him personally, de bonis
propriis, as a reflection of the court's disapproval of his conduct and as a
reminder of the high standard of professionalism that the legal practitioners
must uphold.
34. The rescission application is therefore dismissed with costs de bonis propriiis,
on an attorney and client scale granted against Mr. Ramabu, in his personal
capacity.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Applicants’ counsel: Mr. Garces
Applicant’s attorney: Kemp & Associates Attorneys
Respondent’s counsel: Absent
Respondent’s attorney: Absent