REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No:012905/2024
In the matter between:
MINISTER OF DEFENCE AND
MILITARY VETERANS First Applicant
CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE Second Applicant
SECRETARY FOR DEFENCE Third Applicant
SOUTH AFRICAN NATIONAL DEFENCE FORCE: Fourth Applicant
CHIEF OF HUMAN RESOURCES
and
MOSES JABULANI ZWANE AND 15 OTHERS First to Sixteen Respondents
In re: MOSES JABULANI ZWANE AND 15 OTHERS First to Sixteen Applicants
and
MINISTER OF DEFENCE AND
MILITARY VETERANS First Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
22 April 2025
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CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE Second Respondent
SECRETARY FOR DEFENCE Third Respondent
SOUTH AFRICAN NATIONAL DEFENCE FORCE: Fourth Respondent CHIEF OF HUMAN RESOURCES
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
SK HASSIM J
Introduction
[1] The applicants in the main application are members of the South African
National Defence Force (“SANDF”), referred to as “the DoD Employees”. On 27
November 2024 they obtained an order (“the default order”) against the Minister of
Defence and Military Veterans (“the Minister”), the Chief of the South African National Defence Force (‘the Chief of the SANDF”), the Secretary of Defence (“the Secretary -
DOD”) and S outh African National Defence Force: Chief of Human Resources (“Chief:
HR”), collectively referred to as (“the DoD”). The default order compelled the DoD to
(i) take all steps required to staff all Applicants in terms of the Military Dispensation
(“MD”) for Engineers and Related Professions and to communicate this to the Applicant’s attorneys - both to be done within 30 days of the order; and (ii) to pay to
the DoD Employees technical allowances (or a similar benefit in terms of the MD)
retrospectively from 1 April 2023 until the date of being fully incorporated and/or staffed in terms of the MD in accordance with (i).
[2] On 20 February 2025, the DoD applied on an urgent basis under rule 45A of the
Uniform Rules of Court for the suspension of the operation and execution of the default
order pending the finalisation of a rescission application which had been served on
12
January 2025 . The DoD Employees disputed that the application was urgent and moved
for it to be struck from the roll. As far as the merits of the application were concerned, they contended that the application should not be entertained by the court because the DoD is in contempt of court and therefore barred from approaching a court. and in any
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event, there are no prospects of success in the rescission application. I heard the parties
on both urgency and the merits. For reasons discussed later, I was of the view that the application was urgent. The DoD Employees ’ counsel, Mr Hamman, properly agreed
that pending the decision on the urgent application, his clients would not enforce the
default order.
[3] On 19 March 2025, I issued the following order suspending the execution and
operation of the default order and requested the parties to make submissions or agree to
time frames for the delivery of outstanding affidavits in the rescission application, as
well as heads of argument, to ensure that there is no delay in finalising the rescission
application. I indicated reasons for the order will be provided after receipt of the
submissions:
“[2] The operation and execution of the order granted by Davis J on 27 November 2024 is
suspended pending the finalisation of the pending application to rescind the judgment.
[3] The parties are requested to submit brief submissions within five (5) days of this order why the following orders cannot, or should not be made in addition to the orders in paragraph 2
above and 5 below - (i) placing the applicants on terms to deliver a replying affidavit in the rescission
application, if one has not been delivered,
(ii) directing when practice notes and heads of argument must be delivered by the parties.
[4] In the event the parties agree to time frames for the delivery of the outstanding replying
affidavits, if it is outstanding and further the exchange of heads of argument such agreement
must be recorded in a practice note which must be uploaded to CaseL ines within 5 (five) days
of this order.
[5] The costs of the application, including the costs occasioned by compliance with paragraphs 4 and/or 5 [sic] above shall be costs in the cause.
[6] Written reasons for this Order will be handed down after receipt of the written submissions
referred to in paragraph 3 or the practice note referred to in paragraph 4.
[4] These are the reasons for the order.
Background to the application
[5] The main application was a review application under the Promotion of
Administrative Justice Act, Act No 3 of 2000. During 2007 the Department of Public
Service and Administration (“the DPSA”) adopted an Occupation Specific Dispensation
(“OSD”) in terms of which scales of remuneration for public service employees was to be determined according to occupational categories. On 1 July 2009, the DPSA implemented an Occupation Specific Dispensation (“OSD”) for Engineers and Related Professions and Occupations and issued in this regard Circular 5 of 2009. According
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to the DoD, the OSD for Engineers and Related Professions formulated by the DPSA
was not suited to the military environment. The DoD did not adopt the Public Service
OSD for Engineers and Related Professions and Occupations and developed a Military
Dispensation for engineers and related professions.
[6] On or about 30 November 2010, the Chief: HR issued the “Implementation:
71/2010 Technical Allowance and Phasing in of Occupational Specific Dispensation
(OSD) for Engineers and Related Professions and Occupations in the Department of Defence (DOD) (“the 71/2010 DoD Technical Allowance and in -phasing of OSD”)
1.
It provided for the payment of a technical allowance for engineers and related professions and occupations in the DoD to those at salary notches B3 to C7 until such time as a military occupation specific dispensation for engineers and related professions
in the SANDF was approved.
[7] On 30 June 2011, the DOD issued “Amendment Implementation
Instruction:/2010 Technical Allowance and Phasing in of Occupational Specific
Dispensation (OSD) for Engineers and Related Professions in the Department of Defence (DOD)” (“the Amended Technical Allowance and in-phasing of OSD” )
which was aimed at those members who had not been receiving a technical allowance.
[8] On 31 August 2021, the DoD implemented the “Military Dispensation (MD) for
Engineers and Related Professions in the Department of Defence (DOD)” (“the DoD’s
MD”) being the occupation specific dispensation for the DOD. The DoD’s MD applied
to DOD employees on salary grades B1 to C7
2 who fell under the DoD’s MD. In terms
of paragraph 42(a)(ii) only those posts with technical qualification and experience in the profile of the post would be converted to Military Dispensation (“MD”) posts.
[9] The DoD’s MD repealed the 71/2010 Technical Allowance and in- phasing of
OSD
3 and abolished the technical allowance with effect from 1 April 2022.
1 Attached marked “MJZ -3” to the main application.
2 According to the DoD, private to colonel (previous salary levels 1 to 12).
3 As well as the "Implementation Measures for a Pay Incentive Scheme for Identified Technical
Musterings in the SAAF” and the "Implementation Measures for the Special Medium -Term Service
System (SMTSS) for Engineers, Technical Officers and Technical Rating s in the SA Navy".
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[10] On 7 February 2024, the DoD Employees launched the main application to
compel the DoD to take all steps required to place them in MD posts in terms of the
DoD’s MD. They also sought an order compelling the DoD to pay a technical
allowance, or similar benefit in terms of the DoD’s MD, retrospective to 1 April 2023
until the DoD Employees are placed in MD posts in line with the DoD’s MD. In the
alternative, they sought the following declaratory orders:
“…that the termination of the technical allowance paid to the Applicants is unlawful and/or is
reviewed and s et aside and/or …that the implementation of the Military Dispensation (MD) for
Engineers and Related Professions in the Department of Defence dated 31 August 2021 is
unlawful and invalid and/or it is reviewed and set aside.”
[11] The DoD delivered a notice of intention to oppose the application but not an
opposing affidavit. This was on the advice of counsel. Counsel had recommended that
at least pending the finalisation of grievance proceedings initiated by other members of
the SANDF , referred to in the papers as the “Sullivan case,” 4 the DoD Employees
should be paid, in addition to the monthly salary, an amount equal to the technical
allowance they would have received prior to the implementation of the DoD’s MD on 1 April 2022. The main application was set down on the unopposed motion court roll
of 22 October 2024.
[12] On 22 October 2022, the DoD’s counsel applied for a postponement of the
application because the State Attorney was awaiting approval to settle the application.
Davis J postponed the application to 27 November 2024. However, by the postponed
date a settlement had not been approved. The Court was informed that the
memorandum recommending a settlement had not been approved by all the relevant
officials in the DoD and the State Attorney did not hold instructions to settle the matter.
From the bar an application was made for the postponement of the application pending
the approval of a settlement. Davis J refused the application and granted the following order:
“
1. The First to Fourth Respondents are ordered to take all steps required to staff all Applicants
in terms of the Military Dispensation (“MD”) for Engineers and Related Professions within
30 (thirty) days from the date of this order and to report that same has been done in writing
to the Applicant’s attorneys within the same timeframe;
2. The 1st to 4th respondents are ordered to ensure that all Applicants are retrospectively paid
technical allowances (or a similar benefit in terms of the MD) from 1 April 2023 until the
4 Vide. Sullivan and Others v The Minister of Defence and Others (37166/2023) [2024] ZAGPPHC 197 (29
February 2024
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date of being fully incorporated and/or staffed in terms of the MD in accordance with
prayer 1.
3. The first to fourth respondents are ordered to pay the cost of this application on scale B,
jointly and severally, the one to pay the other/s to be absolved”.
The institution of the application for the rescission of the default order
[13] Counsel’s advice came to the attention of the Chief: HR after the default order
had been granted. He disagreed with counsel’s interpretation of the DoD’s MD Policy.
According to him counsel had not been given the correct facts.
[14] On 7 January 2025, the DoD’s Employees’ attorney e- mailed a letter to the State
Attorney, delivered by hand to the DoD on 9 January 2025, demanding compliance with
the default order within 10 days and threatened an application for contempt of court in
the event of non-compliance. [15] On 12 January 2025, a day before the expiry of the thirty-day period within
which the DoD had to comply with the default order, the DoD launched an application
to rescind the default order. [16] This urgent application which is to suspend the execution and operation of the
default order was served on 20 February 2025 and placed on the urgent court roll of 4
March 2025. [17] The crux of the DoD’s defence to the main application is that the DoD
Employees,
5 but for two, do not meet the qualification criteria under the DoD’s MD
for the translation of their posts to MD posts. Their posts can therefore not be translated
to MD posts, and they are not entitled to be placed in MD posts under the DoD’s MD.
Furthermore, they do not meet the criteria for the payment of a technical allowance. [18] The termination of the technical allowance paid to the DoD Employees was not
declared unlawful or reviewed and set aside. Nor the implementation of the DoD’s MD
dated 31 August 2021. Consequently, according to the DoD, the termination of the technical allowance, and the implementation of the DoD’s MD dated 31 August 2021
is valid and enforceable.
5 These are the first applicant and private Madonsela who have been appointed in a technical post and are
being remunerated in terms of the Military Dispensation Policy.
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Urgency
[19] I am satisfied that the DoD has established that it will not obtain substantial
redress at a hearing in due course. It is common cause that the DoD Employees intend
enforcing the default order by instituting contempt of court proceedings. Once the
default order is executed an order suspending its operation and execution will be brutum
fulmen.
[20] The question whether the urgency is self-created does not arise. The suspension
application did not suddenly become urgent, it was urgent when the default order was
granted and remains urgent until the default order is rescinded. Unless and until the
default order has been rescinded, or its the operation and execution suspended, the DoD will have to pay a technical allowance to the DoD Employees retrospectively to 1 April
2023. And, the DoD Employees have not disputed the averment in the DoD’s founding
affidavit that if they are paid a technical allowance in terms of the default order the DoD
will not be able to recover it from them.
6
[21] Whilst the DoD can be chided for not having brought the suspension application
when it realised that it had a defence to the application or when the rescission
application was launched, the failure to act earlier did not cause the application to
become urgent.
[22] The question is not whether the application is urgent. It is rather whether the
abridgement of the times for the delivery of affidavits was commensurate with the
urgency. The application was served on 20 February 2025. The DoD Employees delivered their answering affidavit on 25 February 2025 as dictated in the notice of motion. The replying affidavit was delivered before noon on 27 February 2025. By the time the application was called in the urgent court it was ripe for hearing.
[23] While the application could have been heard in the urgent court a week or two
later, the relief which the DoD was seeking, and the effect of the implementation of the
order, meant that the application would at some time or other have found its way back
on the urgent court roll because it i s unlikely that the application could have been
6 FA: 105 para 105. AA
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accommodated on the normal motion court roll in the immediate or near future. Until
the application was disposed of, the DoD was in breach of a court order. And, if it complied with the order by paying a technical allowance the likelihood of recovery from
the DoD Employees in the event of a successful rescission application was tenuous.
The prejudice to the fiscus if the DoD Employees are ultimately not entitled to a
technical allowance was a further factor that moved me to entertaining the application as urgent. I was satisfied that t
he DoD will not obtain substantial redress if th is
application is heard in due course.
Merits of the suspension application
[24] The rescission application is brought under rule 42(1)(a), rule 31(2)(b) and the
common law. The DoD Employees argue that the DoD is not entitled to stay the
operation and execution of the order because it is in contempt of court and until such
time that it has purged the contempt it is barred from instituting legal proceedings.
Additionally, that there is no merit to the rescission application. In this regard they urged that there are no prospects of success in the rescission application because (i) the
default order was not granted in the DoD’s absence; (ii) the default order was not
erroneously granted or sought as contemplated in rule 42(1)(a); and (iii) the DoD has
not shown good cause to rescind the default order.
[25] Generally, a court will grant a stay of execution where real and substantial
prejudice requires stay, put otherwise where injustice will otherwise ensue.
7 A court
will suspend the operation and execution of an order if the underlying causa of the
judgment debt is disputed. 8 Though an application for the suspension of the operation
and execution of an order is interlocutory to a rescission application, the analogy of an
interim interdict is not appropriate if the applicant for the suspension is not asserting a
right in the strict sense but is seeking a discretionary indulgence based on the
apprehension of injustice. 9 The court in Erasmus v Sentraalwes Koöperasie Beperk 10
7 Van Rensburg NO v Naidoo NO and O thers ; Naidoo NO and Others v Van Rensburg NO and Others
[2010] All SA 398 (SCA) para 51.
8 Van Rensburg NO v Naidoo NO and Others; Naidoo NO and Others v Van Rensburg NO and Others para
52.
9 Road Accident Fund v Strydom 2001(1) SA 292 (C) at 304 G -H.
10 [1997] 4 All SA 303 (O) .
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found that a court does not have to determine the prospects of success of the application
pending which the operation and execution of an order is sought to be suspended. It should however be satisfied that an applicant has an arguable case for the rescission of the judgment.
11
[26] Waglay J (as he then was) in Tony Gois t/a Shakespeare' s Pub v Van Zyl &
others 12 succinctly captured the principles for the stay of the operation and
implementation of an order -
“[37] The genera l principl e for the granting of a stay in executio n may therefor e be
summarize d as f ollows :
(a) a court will grant a stay of execution where real and substantial justice
requires it or where injustice would otherwise result;
(b) the cour t will be guide d by consid ering the factor s usuall y applicabl e to
interim interd icts, except wher e the applicant is not asse rting a right but
attempting to avert injustice;
(c) that the court must be satisfied that:
(i) the a pplicant has well-grounded apprehension t hat the e xecution is taking
place at the i nstance of th e respo ndent(s); and
(ii) irre parable harm w ill resu lt if execu tion is not stayed and the
applica nt ultima tely succ eeds in establishing a c lear right.
(d) irrepa rable harm will invariably result if th ere is a possibility that the
underlyi ng causa may u ltimately be remove d i.e. where the under lying causa
is the su bject m atter of an on going dis pute be tween the par ties;
(e) the co urt is not c oncerned with the m erits of the unde rlying d ispute - the sole
enquiry is si mply whe ther th e causa is in dis pute.”
[27] The DoD is not asserting a right; it is attempting to prevent injustice and
irreparable harm. I therefore do not have to decide whether the requirements for an
interdict have been satisfied.
Is the DoD barred from applying for the suspension of the operation of the
default order ?
[28] The rule that orders of court must be obeyed is grounded in the rule of law and
is reinforced by section 165 of the Constitution of the Republic of South Africa, 1996
(“the Constitution”). Where a party is of the view that a court order is unenforceable or
wrong, it has the right to contest the court order, but if it fails to do so then it must
11 At 302.
12 [2003] JOL 11875 (LC ).
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comply with it. It cannot simply ignore the court order. In the oft-quoted case of
Hadkinson v Hadkinson [1952] 2 All ER 567 (CA) RomeR LJ stated –
“It is the plain and unqualified obligation of every person against, or in respect of, whom an
order is made by a court of competent jurisdiction to obey it unless and until that order is
discharged …”
[29] The correct process for DoD to discharge the default order and relieve itself of
the obligation to comply with it, is to apply to rescind it. 13 This application is to
preserve the status quo ante until a court has decided whether the default order is
unassailable or not.
[30] The DoD Employees resist this application and the rescission application on the
basis that the DoD is in contempt of court and therefore barred from coming to court
until it has purged the contempt.
[31] A person who disobeys a court order, may be found to be in contempt of court
and must then endure restrictions that flow from that conduct. One of the restrictions
which befall a contemner is arrest and committal to jail. Another, an application by the
contemner will not be entertained until the contempt has been purged. 14 However,
denying a hearing is inimical to section 34 of the Constitution and can cause great
injustice. The rule that the contemnor must purge the contempt before it can be heard
is not an absolute rule and is a matter for the discretion of a court dependent upon the circumstances of the case.
15
[32] If the DoD is barred from court, it will have to comply with an order it considers
wrong and has already taken steps to set aside. This would effectively deprive the DoD
of the opportunity to seek the suspension of its obligations under the default order as well as deprive it of its right to contest the default order and have it set aside. The DoD
Employees’ defence to this application has the ring of the principle in tax law “pay now,
argue later”. I am not aware of any precedent importing this principle, or a similar
principle, where a party wishes to challenge the court order compelling it to perform
under a court order. The DoD has the right to have the dispute regarding the correctness
13 Cf. Readam v BSB International 2017 (5) SA 183 (GJ) at 197H -I, para 24.
14 Di Bona v Di Bona and Another 1993 (2) SA 624 (C) at 688 F -G.
15 Di Bona
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of the default order decided in a fair hearing before a court. If the default order is
rescinded the DoD will not be able to recover the technical allowance it has paid in
terms of the default order.
[33] Whilst the DoD has not complied with the default order, it has not been found in
contempt of court. In my view it is unjust to withhold the right to be heard to a party
who has disobeyed an order of court but where the issue of contempt of court has not
been decided. [34] In the circumstances, I exercised my discretion in favour of hearing the DoD.
Is there an arguable case for the rescission of the main order?
[35] The DoD has put up all the available grounds for the rescission of the default
order leaving me wondering whether this is due to a misunderstanding of the law or is
it a case of putting all available options on the wall in the hope that one will stick.
Whichever it is, it is not conducive to efficient litigation. The reliance on rule 31(2)(b)
is misconceived. The judgment was not granted in action proceedings.
[36] As far as the rescission of the default order is sought in terms rule 42(1)(a) and
the common law , the one issue is whether the order was granted in the DoD’s absence .
The others are whether the default order was erroneously sought or granted, and whether
good cause or sufficient cause has been shown for the rescission of the default order
under the common law.
[37] The default order had followed on an unsuccessful application for a
postponement of the main application. The DoD’s legal representatives were in court
when it was granted. Mr Hamman argued that because the order was not one granted
by default, the DoD’s remedy is to appeal the default order and not to apply for its
rescission. [38] Lamentably, despite the issue having pertinently been raised in the papers,
neither counsel addressed the issue when a party is considered “in default”. I accept
that it is not always possible for legal practitioners to prepare for a hearing in an urgent court with the diligence expected by a court, especially where the time for the delivery
of papers is severely truncated thus leaving little, if any , time for thorough preparation
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and incisive research. However , the way in which a case is put before the court and
argued, impacts upon the efficiency of an urgent court, or any other court for that matter.
[39] The issue of when a party is considered to be in “default” was determined by the
Appellate Division in Katritsis v De Macedo . 16 In terms of section 20(1), 17 at the time,
of the Supreme Court Act, Act No 59 of 1959, an appeal against a judgment or order by
a single judge in an action or application in which the defendant was in default was to
the full court of the division concerned or where that division was a local division, to the full court of the provincial division which exercised concurrent jurisdiction in the area of jurisdiction of the local division. The Appellate Division had to decide whether
the appellant had been in default when the judgment was granted to determine whether it had jurisdiction to hear the appeal, or whether the appeal should have been to the full
court. Having reviewed the Old Authorities, Van Blerk JA found that “default” includes
a failure to file necessary documents required by the rules in opposition to a claim, the failure to appear when the case is called as well as failure to attend court during the hearing of the matter.
18 It is thus evident that the physical presence or absence alone
is not definitive whether a party is in default or not. The determining factor is whether the party was prevented from participating in the proceedings. In addition to considering the Old Authorities, Van Blerk JA considered the English position. Having
quoted Merula he says:
“van Le euwen, Romein se Hedendaag se Reg, Bk. V, Ch. XIV, 9, … s ays, if the pl aintiff
or defendant, after answer or completion of the pleading, fails to go on with the c ase,
application to bar him is made, wh ereby h e is prevented from be nefiting by whate ver
takes place on that day. Voet, 2.11.11., makes it even more clear. I quote from Gane's
translation:
‘Moreover not only is he who does not attend at all on the day fixed to be accounted a dallier
and defaulter, but also he who does indeed attend, but does not take in hand the business for
the taking in hand of which the day had been appointed . For instanc e a plaintif f appears and
make s no claim ; or a defendan t does not challeng e the plaintiff' s claim when he should do so.
He who though present makes no defence is surely reckone d in the posit ion of one who is
16 1966 (1) SA 613 (A).
17 “ An appeal from a judgment or order of the court of a provincial or local division in any civil proceedings
may be made -
(a) in the case of, . . . on application by way of motion or petition or on summons for provisional sentence
or in a trial case or as to costs only which by law are left to the discretion of the court, to the full court of the division ; and
(b) in any other case, including an appeal against a judgment or order made on appeal, to the appellate division."
18 618B -C.
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not there; and he who whe n called upon does not plead is deemed to have been futile
and is expressly classed as contu maciou s.’
It follows from all these authorities, and Voet's stat ement in p articul ar, that a party who
appears when the hearing starts , but there after withdra ws, and absents himsel f from
the remai nder of the proc eedings , must also be accounted a defaulter. That would be
an a fortiori case to those men tioned by Voet. Consequent ly, the judgmen t given against
the ap pellant in his absence wo uld be one "in a tr ial case in which the defendant is in
default". These words are wide enough to include such a judgment.
The Engl ish practice seems to accord with this pro cedure. Thus Order 36, R ule 33, of
their Rules prov ides for th e setting as ide of " any verdict or ju dgm ent obtained where
one p arty does not app ear at the t rial". It has been hel d that that incl udes a verd ict or
judg ment gi ven against a p arty who, a lthough appe aring ini tially to ask for a
postponement, thereafter on its b eing re fused wi thdraws and absents hi mself f rom the
remainder of the trial. He i s regarded as if he had not appeared at the tr ial at a ll. (See
Robinson v. Chadwic k, (1878) 7 Ch. D. 878; London Steamship & Trading Corporation
Ltd. v. Russian Volunteer Fleet, 135 L. T. 607).”
[40] The issue was considered more recently by the Full Court of the Limpopo
Division, Polokwane in Rainbow Farms (Pty) Ltd v Crockery Gladstone Farm. 19
Makgoba JP found that a respondent who has not filed opposing papers is in “default”
even if the respondent, or his legal representative, is present in court when the judgment
is granted. 20 The Full Court’s judgment was upheld on appeal to the Supreme Court of
Appeal. 21
[41] The DoD had not filed an answering affidavit, and a postponement sought to do
so was refused. 22 After Davis J refused the postponement, the DoD’s legal
representatives did not withdraw . They were in court when the order was granted.
However, even though represented and therefore present, the DoD could not participate
in the proceedings because it could not defend the case against it. It was therefore in
the same position as a party who was not in court when a judgment is granted. The
DoD was therefore in default when the default order was granted.
19 Rainbow Farms (Pty) Ltd v Crockery Gladstone Farm (HCA15/2017) [2017] ZALMPPHC 35 (7
November 2017).
20 Rainbow Farms para 11.
21 Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd [2019] ZASCA 61, at para 2.
22 The Zimbabwean Supreme Court held in Sibanda and Others v Nkayi District Council [1999] JOL 4734
(ZS) that once a postponement is refused a party is effectively in default.
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[42] It is established that an order granted to a party who is procedurally entitled to
it, is not considered an order erroneously granted as contemplated in rule 42(1)(a), even
if the judge who granted the order was unaware of certain facts. 23
[43] The DoD’s case is that under the MD Policy the posts which fell to be translated
into MD posts were those which required technical qualification and experience. They
aver that the DoD Employees were not in posts requiring a technical qualification and
experience with the result that their posts cannot be translated to Military Dispensation posts. Additionally, the technical allowance is inconsistent with the MD with the result that unless it is set aside a technical allowance cannot be paid to the DoD Employees.
[44] The DoD submits that if these facts had been brought to the court’s attention, the
court would not have granted the default order, and therefore the default order was
erroneously sought and/or granted and consequently falls to be rescinded under rule
42(1)(a). The DoD has not identified the procedural impediment to the main order, nor have I been able to find one on the papers.
[45] As far as the DoD’s case for the rescission of the default order at common law is
concerned there is an arguable case. A party who applies for the rescission of a
judgment under the common law must show “sufficient cause” or “good cause” for its
rescission. However, I do not have to consider the m erits of the rescission
application.
[46] In this application, t he DoD has only to persuade me that the causa for the
default order is in dispute. Its burden at this stage is to demonstrate that there is an
arguable case for the rescission of the default order.
[47] The DoD has given an explanation why the main application was not opposed.
It sets forth reasons why the DoD Employees are not entitled to a technical allowance ,
why their posts cannot be translated to MD posts and why they cannot be placed in MD
posts. They have an arguable case for the rescission of the default order. It is also
arguable that unless the DoD’s MD is set aside, the DoD Employees are not entitled to
the technical allowance and because technical qualifications and experience were not in
23 Lodhi 2 Properties Investments CC v Bondev Developments 2002(6) SA 87 (SCA) at para 25.
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the profile of the posts occupied by the DoD Employees the posts cannot be translated
into MD posts.
[48] I am satisfied that the underlying causa for the default order is in dispute. This
brings me to the question whether the operation and execution of the order should be
suspended.
The suspension of the default order
[49] The DoD has established a well-grounded apprehension that the order will be
executed. Not only is the underlying causa disputed, it is the subject of a pending
rescission application.
[50] The DoD Employees do not dispute that they will execute the main order. If the
execution and operation of the default order is not stayed, the DoD will have to pay a
technical allowance (or similar benefit) calculated from 1 April 2023 until the rescission
application is finalised. There is no assurance that if the default order is rescinded that
the DoD will recover what it paid to the DoD Employees. The DoD Employees have
not offered security, nor a different method for protecting the money paid to them. Their
counsel’s answer to my concern regarding recovery if the DoD ultimately succeeds was
that the DoD is protected by the Pension Funds Act. While e mployers may resort to
section 37D(1)(b)(ii) of the Pension Funds Act, the circumstances under which the
remedy is available are limited, and none of those circumstances exist in this case.
[51] Aside from the prospect of recovery being remote or realistically unachievable,
I understand the DoD’s case to be that not only does the DoD’s MD not confer a right
to a technical allowance, it withdrew the right which the DoD Employees had enjoyed.
It argues that unless the DoD’s MD is set aside, which has not occurred, the payment of
a technical allowance will not be a payment under the DoD’s MD. This is an appealing argument. As I see it, the main order compels the DoD to implement the Policy by
paying the technical allowance, however the DoD’s MD does not cater for a technical
allowance. A payment under the court order will not be a payment in terms of the DoD’s
MD.
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[52] In addition to the default order compelling the DoD to pay a technical allowance
to the DoD Employees, it compels the DoD to place the DoD Employees in MD posts.
The DoD’s case is that the DoD Employees do not qualify for MD posts. If the operation and execution of the default order is not suspended, the DoD will have to place the
DoD’s Employees in posts for which they do not qualify , or which may not exist. This
will result in injustice.
[53] Invariably irreparable harm will result if the operation and execution of the
default order is not stayed, and the DoD ultimat ely succe eds i n rescinding the
default order.
[54] I cannot ignore that the rescission application is aimed at remedying the breach
of the default order. The law gives to a party a choice; it must comply with the court
order or have it set aside. If the party fails to do one or the other, it is not insulated from
proceedings to hold it in contempt of court, and if found to be in contempt sanctioned.
Paragraphs 1 and 2 of the default order are ad factum praestandum. However,
notwithstanding, having exercised a permissible choice, the DoD is not insulated unless
the default order is suspended. Injustice will result if a person who has opted to set
aside a court order must comply with it even though he wants to be released from the
obligations imposed thereunder.
[55] On a conspectus of the facts, I am satisfied that injustice woul d result if the
operation and execution of the default order was not suspended.
[56] As far as costs are concerned, I ordered that the costs of the application shall be
costs in the cause. In my view, it is fair that the party who ultimately fails should bear the costs.
[57] In an effort to arrest delays in the finalisation of the rescission application, or
avert lethargy in acting expeditiously, I invited the parties to address in writing why I should not make an order placing the DoD on terms to deliver a replying affidavit as
one seems not to have been delivered and directing by when practice notes and heads of argument should be filed. There was no response from the DoD. The DoD
Employees are seemingly resistant to such orders. They contend that (i) I cannot compel
the DoD to deliver a replying affidavit because it may elect not to do so; (ii) the deadline
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for the delivery of a replying affidavit has passed and the DoD will therefore have to
apply for condonation; (iii) placing the DoD on terms to file a replying affidavit will
create a new deadline and the DoD “cannot be assisted by a new deadline effectively
being created”; (iv) the time for delivering a replying affidavit has passed and the
respondent should “ suffer the consequences if they want to reply”. They weakly
suggest the DoD could possibly be ordered to deliver a replying affidavit within 3 days
together with a condonation application and should they fail to do so timeously the applicant should file its heads of argument within 10 days and the respondent 10 days later. With the DoD Employees having taken the view that I cannot compel the DoD to
deliver a replying affidavit and having in the written submissions reserved all their
rights, accompanied by the disclaimer that “filing [these submissions] does not entail
acquiescence. All rights are reserved by the Respondents”, I make no order as to the further exchange of papers.
_______________________________
S K HASSIM
Judge of the High Court of South Africa
Gauteng Division, Pretoria
Applicant’s Counsel: Adv NS Tshabalala
Respondent’s Counsel Adv JGC Hamman
This judgment was prepared and authored by the Judge whose name is reflected and is handed down
electronically by circulation to the parties’ legal representatives by e -mail and by uploading it to the
electronic file of this matter on CaseLines. The date for hand -down is deemed to be 22 April 2025