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 LOCAL DIVISION, JOHANNESBURG
CASE NO : 005025/2023
CANON SOUTH AFRICA
(PROPRIETARY) LIMITED Plaintiff/ Respondent
And
EDUCOR HOLDINGS
(PROPRIETARY) LIMITED Defendant/ Applicant
Neutral Citation :
Delivered: By transmission to the parties via email and uploading onto Case Lines
the Judgment is deemed to be delivered.
JUDGMNET
SENYATSI J
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
06/02/2025
__________ _______________
DATE SIGNATURE
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Introduction
[1] This matter demonstrates challenges that litigants face where they are, for
any reasons, unable to access the Case Line portal created to upload the pleadings.
The matter relates to an application for rescission under section 23A (1) the Superior
Courts Act, 2013 as amended to rescind the default judgment granted in terms of
Rule 31(5) on 11 May 2023. This much is apparent from the Notice of Motion filed on
behalf of the defendant. The defendant also seeks that a punitive costs order be
imposed on the plaintiff. The applicant is the defendant in the main action and the
respondent is the plaintiff in the main claim. For convenience’s sake, the parties will
be referred to Educor and Canon .
Background [2] The action was instituted by Canon on 23 January 2023. On 14 February
2023, Educor delivered a notice of intention to defend. On 01 March 2023 Canon
delivered a declaration. Educor failed to deliver a plea by due date and Canon
subsequently , delivered a notice of bar on 03 April 2023. Educor served a plea on
Canon on 12 April 2023.5 It is common cause that the plea was not uploaded to
Court Online. Canon brought an application for default judgment under Rule 31(5) on
the basis that Educor was in default of delivery of a valid notice to defend and a plea.
This was served on Educor on 20 April 2023. On 08 May 2023, Educor served a
notice to oppose the application for default judgment. On 11 May 2023, default
judgment was granted by the Registrar and this, as already stated, is the reason for
this application.
Issues for Determination [3] The issue for determination is whether a case has been made in terms of
section 23 A (1) which is illuminated as the basis of the application in the notice of
motion. This is critical because although the action is brought in terms of that
section, in its heads of arguments, Educor contends that the basis its application is
Rule 42(1)(a) .
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The legal principles and reasons
[4] Section 23 A (1) of the Superior Court Act , 2013 as amended states as
follows:
“(1) If a plaintiff in whose favour a default judgment has been granted has
agreed in writing that the judgment be rescinded or varied, a court may rescind or vary such judgment on application by any person affected by it.
(2) Except where a judgment was obtained erroneously or fraudulently, the
rescission of a judgment referred to in subsection (1) does not affect the rights of third parties or the parties to the case.
(3) Nothing precludes a court from proceeding with the rescission or variation of a judgment if there is proof that the judgment debt has been settled by the judgment debtor, where an agreement in writing that the judgment be
rescinded or varied cannot be obtained from the judgment creditor .” This
section envisages an instance where a written consent is sought and obtained that the judgment may be rescinded.
[5] Rule 42(1)(a) of the Uniform Rules provides that:
“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 an order or judgment
erroneously sought or erroneously granted in the absence of any party affected thereby .”
[6] Rule 19(1) of the Uniform Rules provides as follows:
“Subject to the provisions of section 24 of the Act, the defendant in every civil
action shall be allowed 10 days, after service of summons on such defendant, within which to deliver a notice of intention to defend, either personally or through an attorney: Provided that the days between 16 December and 15 January, both inclusive, shall not be counted in the time allowed within which to deliver a notice of intention to defend. ”
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[7] The interpretation of Rule 19(1) has been considered in various judgments.
For instance, i n Volkskas Motor Bank Ltd v Loe Mining Raise Bone CC1 Mahomed J
(as he then was) considered whether a notice of intention to defend signed on behalf
of a juristic person was valid. After considering the various authorities, the C ourt
concluded that only natural persons can sign notice of intention to defend and in fact
represent themselves in court but that the notice of intention defend the juristic
person is invalid if an advocate or attorney does not sign it .
[8] In Yates Investments (Pty)Ltd v Commissioner for Inland Revenue2 where a
sole shareholder sought to appear and argue the appeal on behalf of the company,
Centlivres C. J said:
“Mr. Prior and the appellant are different personae. A litigant is entitled to
appear in person in any Division of the Supreme Court . The appellant, being
an artificial person, cannot appear in person and must be represented by a
duly admi tted advocate. Apart from certain statutory provisions which allow
attorn eys in very exceptional circumstances to appear in the Superior Court
on behalf of a litigant, only a duly admitted advocate can represent a litigant in a Superior Court. As far as the Appellate Division is concerned there is no
statutory provisions which allow anybody who is not a duly admitted advocate
to appear on behalf of a litigant.”
[9] In Arma Carpet House (Johannesburg) (Pty) Ltd v Domestic & Commercial
Carpet Fittings (Pty) Ltd and Another
3, Margo J said4:
“In the case of notice of int ention to defend, Supreme Court Rule ( 1) limits the
defendant to acting in person or through an attorney and, as before, the right
to act in person cannot extend to an artific ial person. If it had been intended to
permit any person to represent a defendant in giving notice of intention to
defend, then it would not have been necessary in Supreme Court Rule 19(1)
to refer to ‘the defendant personally or through an attorney ’. The Rule would
then have referred simply to ‘ the defendant or his agent .’ The concept of the
defendant acting ‘ personally ’ in Supreme Court Rule 19(1) seems to me to be
1 1992(2) SA 50 at 54D
2 1956(1) SA 364(A) at 365C
3 1977(3) SA 448 (W) at
4 At 451A -C
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the same as under Supreme Court Rule 18(1) in respect of a party who sues
or defends ‘ personally’.
It follows that the first defendant could not validly give notice of intention to
defend in person, but only through an attorney . The notice in this case is
therefore bad in law and must be set aside. ”
[10] The Notice of Intention to Defend filed by Educor reads as follows:
“SIRS,
KINDLY TAKE NOTICE that the Defendant in the above matter hereby defends the matter and appoints the address set out hereunder as the
address where it will accept service of all documents in the matter.
BE PLEASED TO TAKE FURTHER NOTICE that the service address for the
Defendants is:
DAMELIN RANDBURG, CNR MALIBONGWE DRIVE AND REPUBLIC
ROAD, RANDBURG
DATED AT PINETOWN ON THIS 14
th DAY OF FEBRUARY 20 23
DEFENDANT
EDUCOR HOLDINGS 5[…] U[…] Road
PINETOWN ”
[11] Based on what appears on the face of the Notice of Intention to Defend, is the
contention on behalf of Educor that the notice was signed by an admitted attorney
defensible? Educor contends that because the notice was signed by its group legal
adviser and a group company secretary who is an admitted attorney of the High Court, this Court should find that the notice complied with Rule 19( 1). The contention
is bad in law because it is not supported by the notice its elf. Nowhere in the notice
are the facts evident which support this proposition. To the contrary , there is no
identity of the person who signed on behalf of Educor and of course, I have not been referred to any authority in support of the proposition by Educor that I must accept that the signatory of the notice is an admitted attorney of the High Court absent any
indication to that effect from the notice itself. It must therefore follow that the Plea
and Counterclaim which was signed someone at Educor without the necessary
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details required by the Rule, must suffer the same fate as the Notice of Intention to
Defend and is invalid because Educor cannot represent itself .
[12] The contention that Canon’s attorneys acted in bad faith in proceeding with
the application for default judgment in the face of a Plea cannot be sustained
because the purported Plea was filed out of time. More importantly, both invalid
Notice of Intention to Defend and the Plea had not been uploaded in the Case line
portal as required by the Practice Directive of this Court.
[13] The fact that someone at Educor communicated with Canon’s attorneys for
assistance to upload the ill-fated Notice of Intention to Defend and the Plea would
not render those documents valid, and this is based on the quoted authorities set out
in this judgment . Furthermore, the Rule 30 Notice, which was filed and uploaded on
Case line portal on 6 June 2023 by the Educor’s attorneys of record well after the
judgment had been obtained and was filed out of the timelines and of course also
signed by someone at Educor and not by an attorney. The judgment in default was
therefore, in my opinion, not granted by error as claimed by Educor because of the
invalidity of the pleadings that had not been uploaded on the Case line portal as
required by the Practice Directive. This view finds support of the many decisions
quoted in this judgment.
[14] I turn to deal with Rule 42(1)(a) of the Uniform Rules which has been referred
to above. The words “granted in the absence of any party affected thereby” has little to do with actual, or physical, presence but refers to whether the affected party was
afforded a genuine opportunity to participate.
5
[15] In Zuma6, Khampepe J , said the following regarding the requirements to be
met in Rule 42(1) (a) application:
“It should be pointed out that once an applicant has met the requirements for
rescission, court is merely endowed with a discretion to rescind its order . The
5 See 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 (CCT 52/21) [2021] ZACC 28;
2021 (11) BCLR
1263 (CC)
6 Above, footnote 5 at para 53
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precise wording of rule 42, after all, postulates that a court ‘ may’, not ‘must ’,
rescind or vary its order – the rule is merely an ‘ empowering section and does
not compel the court ’ to set aside or rescind anything.7 This discretion must
be exercised judicially.8”
[16] In Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape9 , in dealing
with the common law principles behind Rule 42(1)(a) , Jones AJA stated as follows:
“[4] As I shall try to explain in due course, the common law before the
introduction of rules to regulate the practice of superior courts in South Africa
is the proper context for the interpretation of the rule. The guiding principle of
the common law is certainty of judgments. Once judgment is given in a matter
it is final. It may not thereafter be altered by the judge who delivered it. He
becomes functus officio and may not ordinarily vary or rescind his own
judgment ( Firestone SA (Pty) Ltd v Gentiruco A.G.)10. That is the function of a
court of appeal. There are exceptions. After evidence is led and the merits of
the dispute have been determined, rescission is permissible only in the limited
case of a judgment obtained by fraud or,
exceptionally, justus error.11 Secondly, rescission of a judgment taken by
default may be ordered where the party in default can show sufficient cause.
There are also, thirdly, exceptions which do not relate to rescission but to the
correction, alteration and supplementation of a judgment or order. These are
7 De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) (De Wet) at 1034F and Colyn v Tiger Food
Industries Ltd t/a Meadow Feed Mills (Cape) [2003] ZASCA 36; 2003 (6) SA 1 (SCA) at para 5 where
the Supreme Court of - Appeal held that rule 42, understood in the context of the common law of
rescission, caters for a mistake, but “rescission or variation does not follow automatically upon proof
of a mistake. The rule gives the courts a discretion to order it, which must be exercised judicially.”
See also Theron N.O. v United Democratic Front (Western Cape Region) 1984 (2) SA 532 (C) and Chetty above n 12 at 760F -G.
8 Chetty id at 761D where the Court held as follows: “broadly speaking, the exercise of a court’s
discretion [is] influenced by considerations of fairness and justice, having regard to all the facts and
circumstances of the particular case”. One of the most important factors to be taken into account in
the exercise of discretion, so the Court in Chetty found at 760H and 761E, was whether the applicant
has demonstrated “a determined effort to lay his case before the court and not an intention to
abandon it” for “if it appears that [an applicant’s] default was wilful or due to gross negligence, the
court should not come to his assistance”. And, as stated in Naidoo v Matlala N.O. 2012 (1) SA 143
(GNP) at para [4], a court will not exercise its discretion in favour of a rescission application if
undesirable consequences would follow.
9 ZASCA 36; [2003] 2 All SA 113 (SCA); 2003 (6) SA 1 (SCA) at paras 4 and 5.
10 1977 (4) SA 298 (A) 306 F - G.
11 Childerly Estate Stores v Standard Bank of SA Ltd 1924 OPD 163 , De Wet and others v Western
Bank Ltd 1979 (2) SA 1031 (A) at 1040. And see Harms, Civil Procedure in the Supreme Court, B42-
10 and the authorities collected in footnotes 7, 8 and 9.
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for the most part conveniently summarised in the headnote of Firestone SA
(Pty) Ltd v Gentiruco A.G. supra12 as follows:
‘1. The principal judgment or order may be supplemented in respect of
accessory or consequential matters, for example, costs or interest on the
judgment debt, that the court overlooked or inadvertently omitted to grant.
2. The court may clarify its judgment or order, if, on a proper interpretation,
the meaning thereof remains obscure, ambiguous or otherwise uncertain, so
as to give effect to its true intention, provided it does not thereby alter "the
sense and substance" of the judgment or order.
3. The court may correct a clerical, arithmetical, or other error in its judgment
or order so as to give effect to its true intention. This exception is confined to
the mere correction of an error in expressing the judgment or order; it does
not extend to altering its intended sense or substance.
4. Where counsel has argued the merits and not the costs of a case (which
nowadays often happens since the question of costs may depend upon the
ultimate decision on the merits), but the court, in granting judgment, also
makes an order concerning the costs, it may thereafter correct, alter or
supplement that order.’
In the Gentiruco A.G. case Trollip JA left open whether or not this list is
exhaustive.13 The authorities also refer to an exceptional procedure under the
common law in terms of which a court may recall its order immediately after
having given it, or within a reasonable time thereof, either meru motu or on
the application of a party, which need not be a formal application ( De Wet and
others v Western Bank Ltd supra14; First national Bank of SA Ltd v Jurgens15;
Tom v Minister of Safety and Security.16 This procedure has no bearing on
this case.
5. It is against this common law background, which imparts finality to
judgments in the interests of certainty, that Rule 42 was introduced. The rule
12 The headnote is an accurate summary of the passage in the judgment appearing at pages 306H -
308A .
13 At 308 A – 309 B. That is how matters presently stand, despite the reservation in Seatle v Protea
Assurance
Co Ltd 1984 (2) SA 537 (C) 542 at H - 543 A
14 Footnote 11 at 1044 E – 1045G.
15 1993 (1) SA 245 (W) 246I.
16 [1998] 1 All SA 629 (E) 637A – 638A.
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caters for mistake. Rescission or variation does not follow automatically upon
proof of a mistake. The rule gives the courts a discretion to order it, which
must be exercised judicially ( Theron NO v United Democratic Front (Western
Cape Region) and others )17 and Tshivhase Royal Council and another v
Tshivhase and another; Tshivhase and another v Tshivhase and another.18
6. Not every mistake or irregularity may be corrected in terms of the rule. It is,
for the most part at any rate, a restatement of the common law. It does not
purport to amend or extend the common law19. That is why the common law is
the proper context for its interpretation. Because it is a rule of court its ambit is
entirely procedural. ”
[17] The trend of the courts over the years is not to give a more extended application
to the rule to include all kinds of mistakes or irregularities.20 In Bakoven Ltd v GJ
Howes (Pty) Ltd21, the Court said the following on the interpretation of Rule 42(1)(a) :
“An order or judgment is 'erroneously granted' when the Court commits an 'error' in
the sense of a mistake in a matter of law appearing on the proceedings of a Court of
record' (The Shorter Oxford Dictionary). It follows that a Court in deciding whether a
judgment was 'erroneously granted' is, like a Court of Appeal, confined to the record
of proceedings . In contradistinction to relief in terms of Rule 31(2)(b) or under the
common law, the applicant need not show 'good cause' in the sense of an
explanation for his default and a bona fide defence… Once the applicant can point
to an error in the proceedings, he is without further ado entitled to rescission. ”
[18] In the instant matter, Educor contended that there was an error by the
registrar to grant the default judgment because it had entered notice of intention to
defend which could not be uploaded due to technical reasons. This contention is
without merit because at the time the default judgment was granted, no notice of
intention to defend had been uploaded in the court file. Educor contended
furthermore that it had been refused the right to file the notice of intention to defend
manually and by implication furthermore argued that somehow, the registrar should
17 1984 (2) SA 532 (C) at 536G.
18 [1992] ZASCA 185; 1992 (4) SA 852 (A) 862J – 863A.
19 Harms, Civil Procedure in the Supreme Court , B42 -1. But see the reservation in Tshivase Royal
Council v Tshivase supra (footnote 18) at 862 I .
20 Colyn v Tiger Foods Industries Ltd above footnote 9 at para 8.
21 1990(2) SA 446 at page 471E to H
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have that there was always an intention to defend the action. This contention loses
sight of the fact that the office of the registrar of this court consists of support staff
and not a single individual.
[19] Consequently, given the application for default judgment for consideration, Mr.
Maponya, the registrar of this court could not have known that indeed there was a
notice of intention to defend the action which had been turned down by Mr.
Makofane one of his staff members when the alleged attempt to file it manually was
made. Accordingly, I am of the view that the judgment was not granted in error. I am,
furthermore , fortified by the fact that in any event, what is said to be the notice of
appearance to defend is not compliant with the Rules because Ed ucor indicated that
it is representing itself instead of been represented by an attorney . This renders the
so-called notice of intention to defend invalid which is in line with the many courts .
[20] I now consider whether Educor had demonstrated that it has a bone fide
defence to the claim. Educor does state in its affidavit what its defence is. It refers to
a “Plea and Counterclaim ” which it attaches to its founding affidavit which was not
signed by an attorney or advocate. The so -called “Plea and Counterclaim ” refers to
the alleged point in limine challenge Canon’s alleged failure to prove that the person
who concluded the agreement with Canon on behalf of Educor had the authority to
do so. The “Plea” also challenges the correctness of the amount claimed and avers
that Canon failed to fulfil its obligations by not maintaining the equipment. For the
reasons stated above regarding the invalidity of the notice of intention to defend, the
so-called “Plea and Counterclaim ” must suffer the same fate . Accordingly, Educor
has not made out a case that it has a bona fi de defence.
Order
[21] The application for rescission of judgment is dismissed with costs on the scale
A.
ML SENYATSI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
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APPEARANCES
Counsel for the Applicant / Respondent : Adv C A Read
Instructed by: Webber Wentzel
Counsel for the First Respondent / Applicant : Adv U Ahir
Instructed by: Mooney Ford Attorneys
DATE APPLICATION HEARD: 03 September 2024
DATE JUDGMENT HANDED DOWN: 06 February 2025