REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA DIVISION , MBOMBELA)
(1) REPORTABLE:NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Zakwe AJ . 14/03 /2025.
CASE NUMBER : 3747/2020
In the matter between:
LAZARUS MNDIJANA MBETHE APPLICANT
AND
EMALAHLENI LOCAL MUNICPALITY RESPONDENT
JUDGEMENT
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Delivered: This judgment was handed down electronically by circulation to the
parties' legal representatives via e-mail. The date and time of hand-down is
deemed to be on 14 March 2025 at 11h00.
ZAKWEAJ
INTRODUCTION
[1] The applicant has filed a rescission application in which he seeks the following
relief as set out in the notice of motion:
"(a) The late delivery of the application for rescission of judgment in the
matter and is hereby condoned.
(b) The default judgment granted against the Applicant in this matter on 03
May 2021 and is hereby rescinded.
(c) The costs of this application if unopposed shall be the costs in the cause
of the main action.
(d) Further and/or alternative relief'
[2] The respondent is opposed to the application. The respondent issued summons
on 03 December 2020 against the applicant seeking payment of R
1 336 851,94 plus interest for the non• payment of the services rendered to the
applicant's business property consisting of supply of sewerage, refusal
removal, vatable sundries, municipal rates and supply for water and electricity.
[3] The applicant did not defend the action despite the summons having been
served at his business property in respect of which the respondent had
rendered the services.
[4] On 05 May 2021, the respondent was granted a default judgment by Mankge
J
RELEVANT FACTUAL BACKGROUND
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[5] On 11 May 2022 the applicant received a telephone call from the deputy sheriff
advising him that, he was in possession of a writ of execution that had been
issued against him.
[6] On the same day, 11 May 2022, he asked his son to investigate the matter and
also contacted his attorney Mr Ian Bailie ('Bailie")
[7] On 30 May 2022, Bailie obtained the copy of the warrant of execution from the
deputy sheriff and also obtained the copy of the summons through the offices
of another attorney based in Middelburg. Bailie advised the applicant on 07
June 2022 that he had obtained the copy of the summons.
[8] The summons was served on 07 December 2020 on one Maggy Mbethe
according to the sheriffs return of service.
[9] On 09 June 2022, the applicant requested one Vincent Makama ("Makama") to
consult with Bailie about the matter. Makama was his brother in law to whom
he had entrusted with the responsibility of his business property in 1994 when
he relocated to Nelspruit.
[1 O] This Makama had seemingly leased some parts of the business premises to
third parties and was also operating his own business on the same business
property.
[11] The applicant had a telephonic consultation with Bailie on 27 June 2022
concerning the summons and the writ of execution. Following such consultation
in which Bailie advised him that, he had a good defence to the respondent's
claim, he instructed Bailie to file a rescission application. Bailie asked for the
deposit and he only paid it on 09 September 2022 after Bailie had reminded
him about it in August 2022.
[12] The applicant states further that, he became aware of the judgment on 07 June
2022, he was however, unaware that, the application for the rescission of
judgment had to be filed within 20 days from the date of becoming aware of it.
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[13] In September 2022, when Bailie was preparing the rescission application, he
realized that he did not have the court order (apparently granted by Mankge J
on 05 May 2021 ). Bailie engaged other law firms based in Middelburg to assist
him to obtain the content of the High Court file so that he could obtain the court
order in particular, and proceed with the preparation of the rescission
application. Bailie struggled to obtain the file because it was missing in the
Registrar's office.
[14] Ultimately, on 15 June 2023 Bailie wrote to the respondent's attorneys asking
for the copy of the judgment granted by Mankge J and he was a given a copy
on 03 July 2023.
Applicant's grounds for rescission
[15] The applicant's grounds for rescission are inter alia that:
[15.1]
[15.2]
[15. 3] He only became aware of the judgment against him on 07 June
2022.
He instructed his attorneys to file a rescission application on 27
June 2022.
He has a good defence against the respondent's substantial
portion of the claim which had prescribed.
[15.4] The delay in filing the rescission application was caused by the
unavailability of the court file and as a result of the delay, he seeks
condonation of the of rescission application.
[15.5] He also did not know that the rescission application had to be filed
within 20 days from the date of becoming aware of the default
judgment.
Respondent's grounds for opposition to the application for condonation and
rescission application
[16] The respondent is opposed to the application on the following grounds:
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[ 16.1] That both the summons and the court order were properly served
in compliance with Rule 4 of the Uniform Rules of the Court.
[16.2] The applicant delayed for 15 months to file the rescission
application, which ought to have been filed within 20 days from
date the applicant became aware of the default judgment on 07
June 2022 or at least on 27 June 2022 when he gave instructions
to his attorneys to file the rescission application. This conduct is
in contravention of Rule 31 (2) (b) of the Uniform Rules of the
Court.
[16.3] The grounds advanced by the applicant for late filing of the
condonation are materially flawed and unsatisfactory.
[164]
[164. 1 l
[164.2]
[164.3]
[1644]
[164.5] In the event that, condonation is granted, the rescission
application is effective due to:
The applicant has no bona tide defence to the claim.
The applicant left his business property to Makama without
informing the respondent and therefore his negligence or
wilfulness caused him not to oppose the legal proceedings.
The applicant had failed to establish his right to debate an account
which requires a fiduciary duty.
The defence of prescription cannot stand because the municipal
rates and taxes and allied charges do not expire in 3 years.
The applicant's explanation for late filing of the condonation is
neither full nor frank and is also not reasonable.
THE RELEVANT LEGAL FRAMEWORK AND PRINCIPLES
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[17] It is common cause that, this rescission application falls within the ambit of Rule
31 (2) (b) of the Uniform Rules of the court. This rule provides that:
"A defendant may within 20 days after he has knowledge of such judgment
apply to court upon notice to the plaintiff to set aside such judgment and the
court may, upon good cause shown, set aside the default judgment on such
terms as to it seems meet."
[18] Furthermore, in the event that a party seeking to rescind a default judgment, is
out of time, namely, the prescribed 20-day period, he/she must file for
condonation application for such delay.
[19] In order for a party seeking condonation to succeed, he/she must show good
cause. The courts have clarified several times on what constitutes good cause.
[20] In the case of Grant v Plumbers (PTY) Ltd 1949 (SA 470 (0) 476-477, the
court stated as follows concerning the concept of good cause:
"Having regard to the decisions referred to above, I am of the opinion that an
applicant who claims relief under Rule 43 should comply with the following
requirements:
(a) He must provide a reasonable explanation of his default. If it appears
that his default was wilful or that it was due to his gross negligence, the
court should not come to his assistance.
(b) His application must be bona tide and not made with the intention of
merely delaying the plaintiff.
(c) He must show that he has a bona tide defence to the plaintiff's claim. It
is sufficient if he makes out a prim a facie defence in the sense of setting
out averments which, if established at the trial, would entitle him to the
relief asked for. He need not deal fully with the merits of the case and
produce evidence that the probabilities are actually in his favour."
[21] In the case of Mathie v Ruijter Stevens Properties (PTY) Ltd (AR352I14)
[2015] ZAKZPHC 30, the court stated that:
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"wilful default or gross negligence will often preclude a finding of good
cause. Good cause also includes but is not limited to the existence of a
substantial defence"
[22] It has also been held in past that, a party seeking condonation must upon
learning of the requirement to do so, do so without delay.
[23] Prospects of success is one of the factors in deciding whether to grant or refuse
condonation.
[24] The consideration by court whether to grant or refuse condonation, largely
depends on the discretion of the court, such discretion must always be
exercised judiciously. See Federated Employers Fire and General Insurance
Co Ltd v Mckenzie 1969 (SA) 360 (A)
EVALUATION OF THE FACTS AND APPLICATION OF THE LEGAL PRINCIPLES
[25] The applicant on his own version, was in possession of the writ of execution
and the copy of the summons on 07 June 2022. The perusal of both documents
clearly shows that they contained all material information concerning the
respondent's claim, namely, the factual basis of the claim, the amount due and
payable and the date on which the default judgment had been granted by
Mankge J.
[26] However, despite being in possession of the above-mentioned documents, the
applicant or Bailie felt that they required the copy of the actual court file and/or
the court order itself in order to prepare the rescission application.
[27] Neither the applicant nor Bailie provided any explanation as to why they could
not use the information already in their possession to prepare and file a
rescission application promptly.
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[28] Bailie filed a very general confirmatory affidavit and he did not explain the
following pertinent aspects:
[28.1] Whether or not he advised the applicant that, the court rules required
that, the rescission application must be filed within 20 days from the date
of becoming aware of the default judgment. One would have generally
expected that a legal practitioner such as Bailie, who advised the
applicant that he had a good defence, to have also told him about the
applicable legal requirements, in particular about the 20 -day time
period.
[28.2] Why he did not promptly request the copy of the court order from the
respondent's attorneys if the unavailability thereof precluded him from
preparing and filing the rescission application. In this matter, Bailie only
requested the court order from the respondent's attorneys about a year
later.
[28.3] Why he regarded the information already in his possession inadequate
for the purposes of preparing and filing a rescission application.
[29] The role of confirmatory affidavits in legal proceedings particularly the motion
proceedings, is as important as the founding affidavit itself. Accordingly, ii has
to be evaluated properly and be given proper evidential weight. It is not enough
for a deponent in a confirmatory affidavit to simply state that "/ have read the
founding affidavit of the applicant and I confirm the content thereof in so far as
it relates to me".
[30] Maka ma also deposed to a similarly general or vague confirmatory affidavit. He
was the person entrusted by the applicant with the responsibility of his business
property. He appears to have been in contact with the applicant and the
respondent's offices. He does not provide an explanation at all, as to who
Maggy Mbethe is, who received the summons from the sheriff. And yet was in
charge of business property and on probabilities, he is reasonably expected to
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have known generally all the tenants or people permitted to be in the business
property at any given time.
[31] The applicant does not deny that he is liable for payment of the services
rendered by the respondent but he seems to be disputing the quantum on the
basis of prescription.
[32] The applicant simply relied on prescription, without providing adequate factual
or legal basis which gives rise to a prima facie defence for his assertion that,
the common three-year prescription is applicable to municipal debts claimed by
the respondent as opposed to the 30 -year prescription as argued by the
respondent.
CONCLUSION
[33] The applicant's explanation that he did not know that the rescission application
had to be filed within 20 days, is on a balance of probabilities not plausible, in
the absence of any explanation by Bailie. His attorney had advised him that, he
had a good defence to the respondent's claim. On probabilities, such advice
would not have been given without consideration of the requirements for a
rescission in terms of Rule 31 (2) (b) of the Uniform Rules of the Court.
[34] The applicant and Bailie had enough information or material facts in their
possession as at 07 June 2022 or latest 27 June 2022 based on the contents
of the summons and the writ of execution, to prepare and file a rescission
application within the prescribed 20 -day period
[35] The applicant's explanation that, Bailie "considered it prudent to obtain and
examine all the documents in the courl file" is not reasonable in the absence of
any explanation particularly by Bailie why he considered that prudent.
[36] There is no proper and cogent explanation by the applicant or Makama, why
the summons served at the applicant's property never reached Makama and/or
the applicant. It is mind boggling and /or unconvincing as to why Maggy Mbethe
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who is unknown to the app1icant would nave 'been served or received the
summons instead of Makama or any other person acting on the latter's behalf.
(37J The applicant was negligent or wilful in handling the proposed rescission
application since he had the necessary or material facts to prepare the
application. His exp·lanation for the delay in filing 'the condonation application,
is inadequate and therefore not reasonable.
[38] Although in principle, he admits being liable or indebted to the respondent , he
has not demonstrated any bona fide defence to the respondent's claim that
suggests that if proven at the tria•l ·he could succeed.
[39] The court finds that the applicant has failed to show good cause for the late
filing of the condonation application .
1 . The application is dismissed with costs
A'PPEAAA'Ne'ES:
For the Applicant ZAKWEAJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
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Instructed by : KA-MBONANE COOPER
Email Address : naadiya@kclaw.africa ; hannah@kclaw .africa
Counsel for the Respondent
Instructed by : IAN RICHARD BAILIE
Email Address : irbailie@gmail.com ; rjorok@lantic.net
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