IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION – MAKHANDA]
CASE NO.: 3986/2023
MATTER HEARD ON: 20 FEBRUARY 2025
JUDGMENT DELIVERED ON: 27 FEBRUARY 2025
In the matter between: -
ZANOKHANYO TRADING CC 1ST APPLICANT
REGISTRATION NO.: 2004/006911/2
SLIER ELLIS ZUKILE MBELANI 2ND APPLICANT
and
ABSA BANK LIMITED RESPONDENT
JUDGMENT
ROBERSON J:
Introduction and background
[1] The applicants have applied for two-fold relief: an order staying the execution
of a warrant of delivery , and rescission of a default judgment granted by Beshe J on
16 January 2024. The action arose from an alleged breach of an instalment sale
agreement concluded between the first applicant and the respondent on 4 February
2021 , in terms of which the respondent sold to the first respondent a Mercedes Benz
motor vehicle (the motor vehicle) . The purchase price was to be paid in sixty
monthly instalments. The second applicant , the sole director of the first applica nt,
bound himself as surety and co -principal debtor for the obligations of the first
applicant. The first applicant failed to pay certain instalments due and the
respondent duly complied with s 129 of the National Credit Act 34 of 2005, notifying
the appl icants of the amount of the arrears, the consequences of their failure to
rectify the breach, and their right to refer the instalment agreement to a debt
counsellor. It was alleged that notwithstanding this opportunity, the applicants failed
to remedy the breach. The agreement was accordingly cancelled and the respondent
was entitled, in terms of the agreement, to claim delivery of the vehicle and later
claim damages.
[2] The summons was issued on 8 November 2023 and the amount of the
alleged arrears at tha t point was R87 528.66.
[3] In terms of the judgment granted by Beshe J cancellation of the agreement
was confirmed, the first applicant was to deliver the vehicle to the respondent , the
respondent was to retain all monies paid, leave was granted to claim damages and
interest thereon, and the applicants were to pay the costs.
[4] The application was brought in terms of rule 42 (1) (a) or the common law.
Rule 42 (1) (a)
[5] This sub -rule provides:
“42. 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
without notice to any party affected thereby;”
[6] In Naidoo and Another v Matlala NO and Others 2012 (1) SA 143 (GNP)
Southwood J stated the following at paragraph [6]:
“In general terms a judgment is erroneously granted if there existed at
the time of its issue a fact of which the judge was unaware, which wo uld have
precluded the granting of the judgment and which would have induced the
judge, if aware of it, not to grant the judgment ……..”
And in Occupiers, Berea v De Wet NO and Another 2017 (5) SA 346 (CC) at
paragraph [22] it was stated that:
“An order is erroneously granted where there was no procedural entitlement
to it.”
[7] In the founding affidavit, deposed to by the second applicant, he maintained
that the applicants never received the summons, nor was there a notice of set down
served on them. Thu s, so it was state d, the judgment was erroneously granted.
[8] The respondent was not required to serve a notice of set down, the matter
being undefended.
[9] In the papers before Beshe J were two returns of service which indicated that
the summons was served at the applicants’ chosen domicilium citandi et executandi.
In the case of the first applicant it was affixed to the principal door, and in the case of
the second applicant i t was affixed to the main gate (a different address from that of
the first applicant) . In both returns it was stated that there was no other service
possible after performing a diligent search.
[10] In my view, in the light of the returns of service, thi s was a judgment to which
the respondent was procedurally entitled. Rule 42 (1) (a) does not find application.
Common law application for rescission
[11] An applicant is required to show sufficient cause in order to succeed. In
Chetty v Law Society, Transvaal 1985 (2) SA 756 (AD) the following was stated at
765A -D:
“The term “sufficient cause” (or “good cause”) defies precise or
comprehensive definition, for many and various factors are required to be
considered (See Cairn’s Executors v Gaarn 1912 AD 181 at 186 per Innes
JA), but it is clear that in principle and in the long-standing practice of
our courts two essential elements of “sufficient cause” for rescission of a
judgment by default are:
(i) that the party seeking relief must present a reasonable and acceptable
explanation for his default; and
(ii) that on the mer its such party has a bona fide defence
which, prima facie , carries some prospect of success (De Wet’s case
supra at 1042; PE Bosman Transport Works Committee and Others v
Piet Bosman Transport (Pty) Ltd 1980 (4) SA 799 (A); Smith N O v
Brummer N O and Another; Smith N O v Brummer 1954 (3) SA 352 (O)
at 357 -8).”
[12] In my view the explanation for not defending the action is deficient. The
applicants were faced with returns of service stating how and when the summons
was serve d, but failed to engage with those returns. It was initially merely stated that
the summons was not served , and later stated that it was not received. There was
no explanation of why the summons would not have been seen on the principal door
and main gate, for example that the door and gate were not used to enter the
respective premises, or there was no use of the respective premises at that
particular time.
[13] One can however, if there is a bona fide defence with a good prospect of
success, not place too much emphasis on an unsatisfactory explanation for the
default. The defence of the applicants is that the arrears alleged in the summons
had been paid by the time summons was issued and the cause of action therefore
did not exist at this time. In his affidavit t he second applicant acknowledged
receiving the s 129 notice, dated 29 June 2023, in which the arears were stated to
be R87 528.66. Following negotiations with the respondent’s attorneys, he paid the
arrears on 1 September 2023 and did not concern himself any further about arrears.
While he admitted that there were arrears during June 2023, he thereafter, so he
stated, continued pay ing “religiously”. I assume by this statement he meant that he
paid the required instalments on due date. He annexed proof of payment of
R90 000.00 on 1 September 2023.
[14] The second applicant further annexed an audit/tax certificate from the
respondent dated 1 March 2024 (after judgment was granted) for the period ending
29 February 2024, setting out the outstanding capital as at 1 March 2023 and 29
February 2024. He said that this certificate was an indication that he had continued
with his payments. The arrears reflected in this certificate were R14 417.97.
[15] The answering affidavit was deposed to by Ms Chamano Mntungwa, a legal
manager of the respondent. She referr ed to an email dated 17 August 2023 sent to
the second applicant by the respondent’s attorneys, in which it was stated that the
arrears were R116 953.66 and the second applicant was reminded of the monthly
instalment of R13 073.84. The second applicant res ponded by offering to pay
R40 000.00 by 31 August 2023 and the balance by 25 September 2023. The
respondent accepted this proposal.
[16] Following the applicants’ payment of R90 000.00, on 12 September 2023 the
respondent’s attorneys sent an email to the second applicant pointing out that the
arrears plus interest now amounted to R42 081.31 and he was asked to advise how
he was going to settle these arrears. Reminders were sent and on 5 October 2023
the attorneys sent an email to the second applicant advi sing him that the arrears
were now R55 916.67.
[17] Ms Mntungwa pointed out that the payment of R90 000,00 did not satisfy the
arrears and moreover the applicants did not meet the monthly instalments.
[18] In his replying affidavit, the second applicant stated he had made the following
payments to the respondent: R25 000.00 on 17 October 2023, R13 000.00 on 6
November 2023, R30 000.00 on 20 February 2024, and R30 000.00 on 21 February
2024.
[19] In my view it was somewhat disingenuous for the s econd applicant to
maintain that the arrears had been settled and he did not concern himself further
about arrears. He failed to disclose fully the email correspondence with the
respondent’s attorneys in which he offered to settle arrears of R116 953.66. His
payment of R90 000.00 did not extinguish these arrears, nor did the further
payments before judgment was granted extinguish the mounting arrears. Thus when
judgment was granted there were arrears justifying the cancellation of the agreement
and delive ry of the vehicle. The fact that a certain amount of arrears was mentioned
in the summons is irrelevant. The claim at the time of judgment was not for payment
of a monetary amount, but for cancellation and delivery of the vehicle.
[20] The applicants th erefore did not disclose a bona fide defence to the action.
[21] The following order will issue:
1. The application is dismissed with costs on Scale A .
_______________________________
J.M ROBERSON
JUDGE OF THE HIGH COURT
APPEARANCES:
For the APPLICANT S : ADV NKXOYI
Instructed by : DAVID BOOI INC.
79 STANFORD TERRACE STREET
MTHATHA
EMAIL: sbongilebooi@ymail.com
c/o : SHENXANE INC.
87 HIGH STREET
OFFICE NO.2. FIDELITY BUILDING
MAKHANDA
EMAIL: office@shenxaneinc.co.za
For the RESPONDENT : ADV J.A KNOTT
Instructed by : VELILE TINTO & ASSOCIATES
SUITE3, TERRACE VIEW, ASPEN PLACE
9 RYDALL VALE OFFICE PARK
DOUGLAS SAUNDERS DRIVE
LA LUCIA DRIVE
4051
TEL: 031 007 0811
REF: DACON0041/MAT256411
EMAIL: crystal@tintolaw.co.za
c/o : NETTELTONS ATTORNEYS
118A HIGH STREET
MAKHANDA
EMAIL: daisy@netteltons.co.za