1
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWAN E
(1) REPORTABLE : NO
(2) OF INTEREST TO THE JUDGES: YES
(3) REVISED.
;.J,~,i ~
DATE\ajl/'1 WSIGNATURE .................... . CASE NO: 10206/2023
CASE NO: 10158/2023
CASE NO: 10182/2023
CASE NO: 10195/2023
CASE NO: 10444/2023
CASE NO: 10186/2023 ·
CASE NO: 10437/2023
CASE NO: 10164/2023
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CASE NO: 10431/2023
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CASE NO: 10231/2023
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CASE NO: 10366/2023
CASE NO: 10364/2023
CASE NO: 10429/2023
CASE NO: 10365/2023
CASE NO: 10169/2023
CASE NO: 10435/2023
In the matter between:
SIPHO MARTIN
NEMUGUMON N
MALAPEPANE MOGALE PETER
MANYAKKWANE MCHEL
MAKGOWATHA KGOLEDI
FOTANIE TIISO GEORGE
MOTHIBA MBOTSE
KGAPANE PAILANE JANE
EMMANUEL KWINDA
TEIS NTEBOHENG PRINCESS
SHONGWE RONDNEY
MASHABA NICOLAS
MATOA ELIZABETH
SHIKWAMBANA MIYELANI
MPHOHWENI SHONTSANI
MABUNDA NKATEKO 2
CASE NO: 10434/2023
CASE NO: 10447/2023
CASE NO: 10192/2023
CASE NO: 10157/2023
Applicant
NGOBENI CHRISTINAH
MUGWENA HUMBULANI MONICA
TATHOGWA MUFAMADZO EMMA
MPYANA L.M
LEBALLO KHIMOTSO
MATLOU MASEBOTJANE ALBERT
ENYIOKO MPHO POERIA
MAOKA NARE NELSO
MACHABA KHOMOTSO NANCY
MAPHOLO LUCIA
MATHOPA KOLOBE
MOELELWA MAVIS
PHALA RONEY
NGOAT JE JOYCE
NAMATHE THOMAS
KOMA MOSEDUDI ALFRED
TSHIPURALO COLLEN
and 3
THABATSHWEU HOUSING COMPANY (SOC) LTD
Trading as POLOKWANE HOUSING ASSOCIATION
POLOKWABE LOCAL MUNICIPALITY First Respondent
Second Respondent
4
JUDGMENT
MATHABATHE AJ
Introduction
[1] There are 33 opposed applications for the rescission before me, of orders granted
on 12 February 2024 by Makgoba AJ. In these applications, the respective
Applicants are represented by one attorney of record and the Respondents are also
represented by one attorney in all matters.
[2] The rescissions application arises from similar facts and orders grated on 12
February 2024 proceedings. This judgment will affect all others 33 rescission
applications before me.
[3) In all rescission applications , the Applicants in paragraphs 5 and 6 of the founding
affidavits are approaching this court in terms of the provision of Rule 31 (2) of this
Court, which is contrary rule 42 and/or common law.
[4] At the hearing on these matter on 13 November 2024 the court ordered both the
Applicants' legal representative to file further written submissions by 26 November
2024 and respondents' legal representative to file further written submissions on 4
December 2024, on legal authorities for the use of Rule 31 (2) as opposed to Rule 42
and/or Common law. At the time this judgment was prepared the court order was not
complied with either of the parties.
Rescission -Case Number 10206/2023
[5] The Applicant sought an order in the following terms:
5.1 Default judgment granted on 12 February 2024 be rescinded,
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5.2 Respondents ordered to pay costs of this application on attorney and own
client scale (if opposed) .
[6] The Applicant's version is that the First Respondent embarked on the mass eviction
process at his place of residence and the Applicant happened to be one of those
affected by such massive eviction campaign.
[7] There was subsequently an application for eviction which was indented to be served
on the Applicant which application the Applicant received on the 8 January 20241.
The Applicant immediately sought legal assistance from his attorney of record
Buthane Rasemana Attorneys , gave instruction to file a notice of intention to oppose
eviction application, which was served on 8 February 20242 the Respondents'
attorneys of record annexed "MRB2" signed on 6 February 20243.
[8] The Applicant in his founding affidavit conceded that he has served a notice to
opposed for over months, therefore the Respondents, should have removed and
informed the presiding judge on the 12 February 2024, the order ought not to have
been granted.
[9] The Applicant's position is that on 12 February 2024 and at 09:00, his attorney was
informed by the presiding acting judge that the said notice of intention to oppose was
not in the court file and not filed. The court as such, directed that the matter will
proceed as unopposed , and the consequent ial legal relations will follow. Hence this
application for rescission was launched4.
[1 O] The Applicant's further position is that both himself and his attorneys of record
arrived during the hearing of other contingent applications about 09:33 which
prompted the acting judge to inform his attorney that the roll state at 9:005 contrary
1 Page 8 paragraph 7.3 line 2 of the founding affidavit.
2 Page 8 para 7.4 lines 4-5 of the founding affidavit.
3 Annexure MRB2 page 20-21.
4 Page 10 paras 7.10.1 to 7.10.2 of the founding affidavit.
5 Page 27 annexure MRB4.
6
to the time communicated in the notice of motion6 without communication and inform
by the Respondents' attorneys to that effect7.
[11] The Applicant's position is that is not in willful default as he has already served and
filed a notice of intention to oppose and that such notice ought to have caused the
application to be removed to the opposed roll by practice.
[12] The Applicant's attitude is that both his notice to oppose and his personal
appearance in court on the day of the default judgment is proof enough that he was
not in willful default and have necessary intention to oppose such eviction
application.
[13] The Applicants relied on jurisprudence of rule 31 (2) of the Uniform Rules as their
basis for rescission application, in that by operation and principle, defendant may
within 20 days after acquiring knowledge of such judgment apply to court upon
notice of the plaintiff to set aside such judgment and the court may, upon good
cause shown, set aside the default judgment on such terms as it deems fit8.
[14] The First Respondent's version as per answering affidavit raise three points of laws:
14.1 First Point in limine: Non-compliance with Rule 6(5)(a) and (b) of the Uniform
Rules in that the Applicant failed to launch his application in terms of Form
2(a) of first schedule.
a. According to court papers the Applicant launched and served the First
Respondent's attorneys of record, with rescission application on 5
March 20249. Subsequently on 19 March 202410, the First
Respondent's attorney served as filed notice to oppose rescission
application.
b. It is my view that the First Respondent by serving and filing notice to
oppose rescission application and subsequent answering affidavit have
6 Page 35 annexure MRBS.
7 Pages 10-11 par 7.10.2 of the founding affidavit.
8 Page 6 par 6 of the founding affidavit.
9 Page 1 and 2 of the notice of motion.
10 Page 63 and 64 First Respondent notice to oppose.
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taken further steps to the proceedings, therefore the point of law for
non-compliance with Rule 6(5)(a) and (b) of the Uniform Rules, has
been overtaken by event.
c. The point in limine is accordingly dismissed.
14.2 Second Point in limine: Non-compliance with Rule 41A of the uniform rules
b. Uniform Rule 41A(2)(a) states that:
"In every new action or application proceeding , the plaintiff or applicant
shall, together with the summons or combined summons or notice of
motion, serve on each defendant or respondent a notice indicating
whether such plaintiff or applicant agrees to or opposes referral of the
dispute to mediation."
b. Similarly, Rule 41A(2)(b) requires the Defendan t or Respondent to
serve a corresponding notice on the Plaintiff or Applicant indicating
either their acceptance or rejection of the referral. This response
should be served upon delivery of the notice of intention to defend or
oppose or "at any time thereafter, but not later than the delivery of a
plea or answering affidavit".
c. Where a party fails to comply with Rule 41A procedure they may
receive notice of an 'irregular step' from their opponent. This notice
requires the offending party to remedy the irregularity prior to taking
further steps in proceedings, resulting in further delays and costs.
d. In this case no irregular step was taken be the First Respondent and
the Respondents themselves has failed to comply with Rule 41 A (2)(b)
which compels respondents to file their own notice confirming whether
they agree to or oppose referral to mediation
e. The parties are equally non-comp liant. What is good for the goose is
good for the rescission application itself. In my view the merits of this
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application called for immediate resolution, this is so the principle of
finality of litigation expressed in the maxim interest rei publicae ut sit
finis litiu, it is in the public interest that litigation be brought to finality11.
f. I therefore declined to uphold the defence of non-compliance with Rule
41A, reiterating that 'the rules are there for the Court and not the Court
for the rules.'
g. In the circumstance, the second point in limine is accordingly
dismissed.
14.3 Third Point in limine: Wrong procedure for rescission
a. This point in limine cracks the merits of all applications for rescission
before me, should the court uphold this point is the end of the matter
and on the other side should the court find correct procedure in
launching this application the Applicants are entitled to relief sought.
b. The Applicant seeks this relief only on ground under rule 31(2)(b) of
the Uniform Rules of Court12.
d. The eviction application was brought in motion proceeding not action
proceeding and second no default judgment in the court file only the
orders grated on 12 February 2024, which the Applicants seek to
rescind.
c. Rule 31 deals with action proceeding not motion proceedings.
[15] The court have noted the Applicants ' legal representative in their heads of argument
under heading of legal authority have formulated a case under rule 42 contrary to
what have been pleaded in their founding affidavits.
11 See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (AD) at 306F-G and 309A; Minister of
Justice v Ntuli [1997] ZACC 7; 1997 (3) SA 772 (CC) paras 22 and 29; Zondi v MEG, Traditional and Local
Government Affairs and others 2006 (3) SA 1 para 28.
12Page 6 par 6 of the founding affidavit.
9
[16] Counsel for the Applicants submitted during his oral address referred the court to
para 5.1.1.1.1 which read "This application is brought both in terms of the general
rules of the above Honourable court but more in particular in terms of Rule 31 of the
Uniform Rules of Court."
[17] In this regard, Beyers JA in Montesse Township and Investment Corporation (Pty)
Ltd v Gouws NO 1965 (4) SA 373 (A) at 380 said the following:
'I am not aware of any general proposition that a plaintiff who has two or more
remedies at his disposal must elect at a given point of time which of them he
intends to pursue, and that, having elected one, he is taken to have
abandoned all others. Such a situation might well arise where the choice lies
between two inconsistent remedies and the plaintiff commits himself
unequivocally to one or other of them.'
[18] The Applicants enter application under paragraph 6 dealing with jurisdiction of
rescission of the founding affidavit is on the prescript of Rule 31 (2)(b) of the Uniform
Rules, not any other rules. I do this because it is on their papers that the Applicants
need to make out a case for the relief sought and their case on the papers differs in
a number of respects from the case argued by counsel.
[19] The Constitutional Court, albeit in the context of raising new arguments on appeal,
noted the following basic principle in Prince v President of the Law Society of the
Cape of Good Hope [2000] ZACC 28; 2001 (2) SA 388; 2001 (2) BCLR 133 at para
22:
"It is not sufficient for a party to raise, only in the heads of argument , without
laying a proper foundation for such a challenge in the papers or the
pleadings. The other party must be left in no doubt as to the nature of the
case it has to meet and the relief that is sought."
[20] The First Respondent 's version on eviction orders against the Applicants are that the
Applicants had a lease agreement with the First Respondent. The Applicants failed
to honor lease agreement, they have defaulted and/or failed to make payments of
the rent for years. A proper notice was given for termination of the lease agreement ,
10
to date there is no lease agreement between the Applicant and the First
Respondent.
[21] On 17 March 2023, the Applicants were served with letters of demand by the First
Respondent but still the Applicants failed to pay rent for the units they are occupying.
[22] The Applicants are now illegal and unlawful occupiers , therefore the First
Respondent proceeded with application for eviction.
[23] The First Respondent's version is that the Applicants were notified of the application
for eviction which was heard on the 12 February 2024, by Sheriff of the High Court,
on 11 December 2023 as per annexure "MM3"13.
Requirements for rescission
[24] There are three avenues through which rescission of a judgment can be obtained:
the setting aside of a default judgment in terms of Rule 31(2)(b), rescission in terms
of Rule 42 and rescission under the common law.
24.1 Setting aside a default judgment under Rule 31 (2)(b)
a. Rule 31 concerns default judgments granted in action proceedings
where a defendant has failed to file a notice of intention to defend or a
plea after being barred. A defendant may, within 20 days of acquiring
knowledge of the judgment apply for the Court to set it aside, which the
Court may do, on good cause shown.
b. It is quite evident that Rule 31, concerning action proceedings , is not
applicable to the current circumstances and the Applicants cannot rely
on this provision.
c. The sub-rule does not apply to judgments obtained on an unopposed
basis in motion proceedings14
13 Page 79 par 14 of the bundle.
11
24.2 Rescission under Rule 42
a. Rule 42(1) of the Uniform Rules of Court empowers a court to rescind
an order or judgment erroneously sought or granted in certain
circumstances .
b. Rule 42(1) reads as follows:
"Variation and Rescission of Orders
(1) The court may, in addition to any other powers it may have,
mero motu or upon the application of any party affected, rescind
or vary:
(a) an order or judgment erroneously sought or erroneously
granted in the absence of any party affected thereby;
(b) an order or judgment in which there is an ambiguity , or a
patent error or omission, but only to the extent of such
ambiguity, error or omission;
(c) an order or judgment granted as the result of a mistake
common to the parties."
[25] A litigant must establish the jurisdictional facts in subrule (1) of Rule 42 before a
court may exercise its discretion to set aside the order. In these matters the
Applicant did not plead the jurisdictional facts in sub rule (1) of Rule 42.
[26] Thus, the Applicants must show that the 12 February 2024 Order was either
erroneously sought or erroneously granted and that it was granted in the absence of
any party affected thereby. There are therefore two grounds to be met: the order
sought to be rescinded was granted in the party's absence and it was erroneously
sought or granted. It is well-establish ed that both grounds must be shown to exist.
14 Eskom Holdings SOC Ltd v Akgwevhu Enterprise (Pty) Ltd (unreported GJ case no. 4554921 dated 22
November 2022) para 19 to 20; see also Van Loggerenberg, Erasmus: Superior Court Practice, Val 2,
Second Edition, D1-364 and D1-365.
12
[27] As Streicher JA explained in Lodhi 2 Properties Investments CC & another v Bondev
Developments (Pty) Ltd 2007 (6) SA 87 (SCA) paras 25 -27, the phrase
'erroneously granted' relates to the procedure followed to obtain the judgment in the
absence of another party and not the existence of a defence to the claim. See also
Colyn v Tiger Food Industries Ltd tla Meadow Feed Mills (Cape) 2003 (6) SA 1
(SCA) paras 6 and 9. Thus, a judgment to which a party was procedurally entitled,
cannot be said to have been erroneously granted in the absence of another party.
[28] The Applicants have therefore not met the jurisdictional requirements of Rule
42(1 )(a) and this court is therefore not endowed with a discretion to rescind its order
in terms of this Rule.
28.3 Rescission under the common law
a. Under the common law, a court is empowered to rescind a judgment
obtained on default of appearance , provided sufficient cause for the
default has been shown.15 The Appellate Division in Chetty held that
the· term "sufficient cause" (or "good cause") has two essential
elements for rescission of a judgment by default. These are (a) that the
party seeking relief must present a reasonable and acceptable
explanation for his default; and (b) that on the merits such party has a
bona tide defence which, prima facie, carries some prospect of
success 16. For there to be good cause, both of these elements must be
met. A failure to meet one of them may result in refusal of the request
to rescind17.
[29] As the Applicants were not absent from the proceedings, this ground for rescission
under the common law is not applicable in relation to the 12 February 2014 Orders.
15 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764.
16 Chetty at 765.
17 Government of the Republic of Zimbabwe v Fick [2013] ZACC 22; 2013 (5) SA 325 (CC); 2013 (10) BCLR
1103 (CC) at para 85.
13
[30] It is possible to rescind a final judgment at common law on other, but very limited,
grounds, namely fraud and iustus error18. Neither of these were pleaded by the
Applicants and, on the facts before me, neither is present in the current matter.
[31] In Oe Wet and Others v Western Bank Ltd19 Trengrove AJA, (as he then was),
deliberated on the common law provisions concerning the rescission of the
judgment. The learned judge remarked as follows:
"Under the common law, the Courts of Holland were, generally speaking,
empowered to rescind judgments obtained on default of appearance, on
sufficient cause shown. This power was entrusted to the discretion of the
Courts. This discretion extended beyond, and was not limited to, the grounds
provided in Rules of Court 31 and 42 (1) and those specifically mentioned in
Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163'.(my
underlining) ."
[32] An Applicant for rescission at common law must show good cause. The
requirements for good cause were restated by the Supreme Court of Appeal in
Colyn v Tiger Food Industries Ltd tla Meadow Feed Mills (Cape) 2003 (6) SA 1
(SCA) para 11:
"With that as the underlying approach the Courts generally expect an
applicant to show good cause (a) by giving a reasonable explanation of his
default; (b) by showing that his application is made bona tide; and (c) by
showing that he has a bona fide defence to the plaintiff's claim which prima
facie has some prospect of success (Grant v Plumbers (Ply) Ltd, 20 HDS
Construction (Ply) Ltd v Wait supra, 21 Chetty v Law Society, Transvaa~."
[33] In Zuma v the Secretary of the Judicial Service Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public Sector including
18 KR Sibanyoni Transport Services CC v Sheriff, Transvaal High Court 2006 (4) SA 429 (T) at para 6. See,
too, Harms in LAWSA, Volume 4, Third Edition Replacement, at 601.
19 1979 (2) SA 1031 at para-F.
14
Organs of the State and Others2°, the Constitutional Court restated the requirements
for the rescission of the judgment in terms of the common law as follows:
"[71 J The requirements for rescission of a default judgment are two-fold. First,
the applicant must furnish a reasonable and satisfactory explanation for its
default. Second, it must show that on the merits it has a bona tide defence
which prima facie carries some prospect of success. Proof of these
requirements is taken as showing that there is sufficient cause for an order to
be rescinded. A failure to meet one of them may result in refusal of the
request to rescind.'
[34) Based on the above, I see no basis for the 12 February 2024 Orders to be rescinded
or set aside.
Order
[31] I accordingly make the following order: -
1. The applications are dismissed.
2. There is no order as to costs.
20 (2021] ZACC 28, at para 53. S Mathabathe
Acting Judge of the High Court of South Africa
Limpopo Division
Polokwane
Appearances
For the applicants: Mr Buthane
Instructed by: Buthane Rasemana Attorneys
E-mail: admin@bnrattorneys .co.za
For the applicant: Adv L Nemukula
Instructed by: Katia Inc
E-mail: info@kgatlainc .co.za
Dates of Hearing: 13 NOVEMBER 2024
Date of Judgement: 18 FEBRUARY 2025 15
This judgment was handed down electronically with the consent of and by circulation to the
abovementioned legal representat ives by email. The date and time for hand-down is
deemed to be 1 0h00 on 18 FEBRUARY 2025.
1. Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (AD) at 306F-G and 309A.
2. Minister of Justice v Ntuli (1997] ZACC 7; 1997 (3) SA 772 (CC) paras 22 and 29.
3. Zondi v MEC, Traditional and Local Government Affairs, and others 2006 (3) SA 1 para 28.
4. Montesse Township and Investment Corporation (Pty) Ltd v Gouws NO 1965 (4) SA 373 (A) at 380.
5. Lodhi 2 Properties Investments CC & another v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA)
paras 25-27 State Information Technology Agency Soc Ltd v Gijima Holdings supra at Paragraph 25.
6. Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) paras 6 and 9.
7. Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764.
8. Government of the Republic of Zimbabwe v Fick (2013] ZACC 22; 2013 (5) SA 325 (CC); 2013 (10) BCLR
1103 (CC) at para 85.
9. KR Sibanyoni Transport Services CC v Sheriff, Transvaal High Court 2006 (4) SA 429 (T) at para 6. See,
too, Harms in LAWSA, Volume 4, Third Edition Replacement , at 601.Koyabe and Others v Minister of
Home Affairs and Others (Lawyers for Human Rights as Amicus Curiae) 2010 (4) SA 327 (CC).
16
10. De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 at para-F.
11. Zuma v the Secretary of the Judicial Service Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector including Organs of the State and Others [2021) ZACC 28, at
para 53.