SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 3066/2019
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 29 April 2025
Signature:
In the matter between:
LOWANE HANYANI LIVINGSTONE Applicant
and
NEDBANK Respondent
JUDGMENT
GROBLER AJ:
1. This is an application for rescission of a default judgment granted in favour of
the Respondent against the Applicant on 30 July 2019. The judgment
comprised of the following1:
1 Prayers set out in the particulars of claim under case number 3066/2019 and the subsequent
application for default judgment. Also see par 24 of th is judgment.
“1. Payment of the sum of R438 351.04;
2. Interest thereon at the rate of 8.45% per annum from 2 NOVEMBER
2018 calculated daily and compounded monthly, to date of payment;
3. An Order in terms whereof the immovable property described as ERF
2[...] N[...] EXTENSION 7, REGISTRATION DIVISION H.S PROVINCE
OF KWAZULU -NATAL; is declared specially executable, and, to this
end, that a Writ of Execution be issued as envisaged in terms of Rule
46(1)(a) of the Uniform Rufes of Court;
4. Costs to be taxed on the scale as between attomey and own dient. ”
2. The Respondent set the application for rescission of the judgment down for
hearing in the opposed motion court on 22 April 2025. The Notice of set down
was served on the Applicant’s attorney of record per e -mail dated 17 February
2025.
3. The senior Judge who was charged with the allocation of the opposed motion
roll allocated the matter to this court on Friday 1 1 April 2025 and this court
issued a practice directive on Monday 14 April 2025 indicating that the
Applicant’s application was allocated to be heard by this court on 24 April
2025.
4. An undated and unsigned joint practice note was uploaded to the caselines
profile, containing the allocated date of hearing of 24 April 2025, the details of
both the counsel for the Applicant and the counsel for the Respondent
etcetera.
5. The Applicant’s attorney of record (TL Seeletso Attorneys) transmitted a letter
dated 17 April 2025 by e -mail to the Applicant’s attorney of record on the last
court day before 22 April 2025. In the context of the order issued below it is
necessary to quote the contents of the letter in its entirety:
“1. The above matter refers.
2. We wish to inform you that after perusing the Opposed Roll Dates
issued by Grobler AJ we have noted that the above matter has been
moved to the 24th April 2025, it is unfortunately to inform you that our
Counsel reserved the 22nd April 2025 as the date of hearing and that he
has court commitments on the 24th April 2025.
3. We propose that the matter be postponed to a certain date which
should be agreed upon telephonically based on the availability of our
counsel.
4. We have released our Counsel from the 22nd April 2025 date. ”
6. The Respondent’s attorneys of record transmitted an e -mail in response to the
aforesaid e -mail to the Applicant’s attorney of record on 22 April 2025 with the
following contents:
“1. Kindly find the attached supplementary Heads of Argument.
2. Kindly note it is our instruc tion to proceed on 24 April 2025.
3. Kindly note that our client is amenable to standing the matter down to
25 April 2025 (as opposed to a postponement), subject to the Judge’s
discre tion wherein your offices will have to request same. ”
7. The Respondent’s attorneys of record transmitted a further e -mail to the
Applicant’s attorney of record on 23 April 2025 with the following contents:
“ Kindly note that we shall be appearing and moving the matter towards
finality tomorrow.
The attempted removal of the matter is both irregular and defective, in that
the matter has already been duly allocated to a Judge.
We shall accordingly hand up your letter dated 17 April 2025 to the
Honourable Judge during the proceedings tomorrow. ”
8. The Applicant was in default when the matter was called on 24 April 2025.
9. The Respondent’s counsel argued that the Applicant’s attempt to unilaterally
remove the matter from the roll is abusive as it is designed to cause a delay in
the finalization of the matter, that it is highly irregular and that there is no
application for a standing down or postponement of the matter. In the
circumstance s, so the argument went, the matter should proceed in the
absence of the Applicant.
The irregularity and abusive nature of the unilateral removal:
10. The Respondent’s counsel submitted, and there can be no doubt that the
submission is correct, that the unavailability of counsel does not ipso facto
entitle a party to a postponement.
11. The acceptability of the alleged unavailability of counsel for the allocated date
of hearing on 24 April 2025 , as a reasonable explanation for the Applicant’s
attorney’s attempt to unilaterally remove the matter from the roll , is
questionable in light of inter alia the following provisions of the REVISED
CONSOLIDATED PRACTICE DIRECTIVE 1 OF 2024 COURT OPERATIONS
IN THE GAUTENG DIVISION with effect from 26 February 2024 (amended on
12 June 2024) :
“24 THE MOTION COURT
…
Requests for specific dates
24.8. In instances where attorneys require specific dates to be allocated due
to counsel’s availability/non -availability or for another valid reason, a
CaseLines note to that effect may be made for the registrar’s
consideration.
24.9. Such date requests should be for a date range (e.g., ‘last week of
June’) and not for a specific date; and should be sufficiently motivated.
…
Final enrolment of opposed motions
…
25.6. All opposed motions shall be set down by the registrar formally on a
Monday and the Judge allocated to hear the matter shall give directions
as to which day of that week the matter shall be heard.
…
Pre-hearing conference required
25.17. In any opposed motion or special motion, counsel for the several
parties must hold a pre -hearing conference and prepare a joint practice
note setting out:
25.17.1. The relevant factual chronology.
25.17.2. Common cause facts relevant to the relief sought in the
pleadings.
25.17.3. Issues requiring determination.
25.17.4. Relevant portions of the papers to be read.
25.17.5. Whether or not the parties have agreed to forgo an oral
hearing.
25.17.6. Whether supplementary submissions are expected in the
event that the matter will be heard on paper.
25.17.7. An updated estimate of the duration of the hearing.
25.17.8. Any other matters relevant for the efficient conduct of the
hearing, to present to the Judge seized with the matter. ”
12. The Applicant’s attorney did not raise the availability / unavailability of counsel
and the setting down of the matter on the opposed roll for the week of 22 April
2025 when the matter was so set down by the Respondent, as he was entitled
to do in terms of paragraph 24.8 and 24.9 of the practice directives.
13. The Applicant’s attorney must have known at all relevant times that the
matter may be allocated for hearing on any day of the week starting on 22
April 2025 as provided for in paragraph 25.6 of the practice directives.
14. No mention was made in the joint practice note of the availability /
unavailability of the Applicant’s counsel on any specific day of the week
starting on 22 April 2025, as the Applicant was entitled to do in terms of
paragraph 25.17.8 of the practice directives. In this regard there is a well -
established and honoured convention that counsel may , in the joint practice
note, request the matter to be allocated a specific day of the week, or that the
matter be allocated any day other than a specific day of th e week due to the
availability / unavailability of counsel on any specific day. In cases where
such a request is made, counsel are usually accommodated as far as
possible.
15. The attempt to unilaterally remove the matter from the roll by TS Seelepe
Attorneys is furthermore particularly concerning in light of the judgment
handed down less than a year ago on 18 June 2024 in Seripe v Swanepoel
NO and Others 2024 JDR 2775 (NWM).
16. In that matter the Applicant’s attorneys (TL Seeletso Attorneys ) also acted for
an applicant in a rescission application and also attempted to unilaterally
remove the matter from the roll for questionable reasons, which were found to
have had no merit.
17. In paragraph [22] of the Seripe -judgment, the Court stated that the conduct of
Mr Seeletso filled the Court with disquiet. The Court also stated the following
in paragraph [22] of the judgment:
“Legal representatives’ foremost duty is to the court. It is apposite at this
juncture to remind legal representatives of this duty and their role in the
proper administration of justice. Our law is replete with authority which
enunciates this principle. The reference to ‘advocates’ in some authorities
cited would in my view apply equally to the role of attorneys as well. ”
18. In paragraph [28] to [30] of the Seripe -judgment, the Court considered the
Rules of Court and the Practice Directives as a conduit in the achievement of
expedient, efficient and cost -effective litigation and referred to inter alia
Mukaddam v Pioneer Foods Pty (Ltd) 2013 (5) SA 89 (CC) at par [31] to
[33], Centre for Child Law v Hoërskool, Fochville 2016 (2) SA 121 (SCA) at
par [17] and Eke v Parsons 2016 (3) SA 37 (CC) at 53 A -D.
19. From a consideration of the aforementioned authorities, it is clear that the
primary function of the Rules (and Practice Directives) is the attainment of
justice in a cost effective and expeditious manner.
20. The Court in the Seripe -matter found that the attempt to unilaterally remove
the application from the roll was impermissible, irregular and of no force of
effect. The Court in fact found (in paragraph [32] of the judgment ) that the
conduct of Mr Seeletso is unbecoming of a legal practitioner.
21. The Court, however, furthermore found that it would not have served the
interests of justice for the recission of judgment application to be adjudicated
in the absence of Mr Seeletso and postponed the matter, but ordered Mr
Seeletso to prepare adequately to address th e Court on the consideration of
an order of costs de bonis propriis against him . I have not been able to
establish what the final outcome of the matter was.
22. I am accordingly on the basis of the available facts and legal position similarly
inclined to find that the Notice of Removal unilaterally uploaded to caselines
by the Applicant’s attorney of record dated 23 April 2025 is irregular and void
ab initio .
The Respondent’s request to proceed with the finalisation of the matter in the
absence of the Applicant:
23. The primary reason for it not being possible to determine the matter at this
stage is that all the necessary papers are not before court.
24. The “Index Bundle - Default Judgment & Combined Summons” uploaded to
caselines at 000 - 1 to 3 refers to the court order presumably granted on 30
July 2019 as item number 20 on paginated pages 103 to 105, but no court
order is uploaded to caselines (the last page of the bundle on caselines is the
service affidavit that ends on caselines 000 - 99).
25. The founding affidavit and replying affidavit (if any) in the application for
rescission of the judgment – the very application set down for hearing before
me - is not available on the caselines profile. This is perplexing in light of all
the practice directives requiring the papers in the matter to be uploaded to the
caselines profile at various stages of the process (See inter alia par 13.9, par
24.3, par 25.7, Annexure 5.5 etc of the practice directives).
26. I am accordingly unable to accede to the Respondent’s request to determine
the matter in the absence of the Applicant.
Costs:
27. In view of the order to be issued as set out below, the wasted costs relating to
hearing set down for the week of 22 April 2025 should be reserved.
Conclusion:
28. In the premises, the following order is issued:
1. The Notice of Removal filed by the Applicant’s attorney of record (TL
Seelepe Attorneys) dated 23 April 2025 is set aside as being void ab
initio;
2. The application is postponed sine die ;
3. The Applicant’s Attorney of record (TL Seelepe Attorneys) is ordered to
present reasons on affidavit why TL Seelepe Attorneys should not be
ordered to pay the wasted costs relating to hearing set down for the
week of 22 April 2025 de boniis propriis on an attorney and client scale,
such affidavit to be delivered by no later than 15 court days after date
of this judgment .
4. The Respondent is authorized to deliver an answering affidavit to the
aforementioned affidavit of the Applicant’s attorney of record within 10
days from receipt thereof and the Applicant’s attorney of record is
authorized to deliver a replying affidavit within 5 days from receipt of
the answering affidavit ;
5. Costs are reserved.
DATED AND SIGNED AT PRETORIA ON THE 29th DAY OF APRIL 2024 .
JF GROBLER
Acting Judge
High Court of South Africa
Gauteng Division
Pretoria
Counsel for Respondent : W Roos
Instructed by: VHI Attorneys
Counsel for Respondent : S Leshilo (as per joint practice note) No appearance at the
hearing
Instructed by: TL Seeletso Attorneys
Date of hearing: 24 April 2025
Date of judgment: 29 April 2025