HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION , CAPE TOWN
Case No.: 644/2024
In the application between:
VINK MULTI SERVICES (PTY) LTD Applicant
and
FIRST RAND B ANK LIMITED T/A WESBANK First Respondent
SCHOEMANLAW INCORPORATED Second Respondent
LIPCO BUSINESS (PTY) LTD t/a LAW FOR ALL Third Respondent
THE PRESIDENT OF THE REPUBLIC OF Fourth Respondent
SOUTH AFRICA
THE DEPARTMENT OF JUSTICE Fifth Respondent
THE DIREC TOR GENERAL Sixth Respondent
DEPARTMENT OF JUSTICE
AUTO AND GENERAL INSURANCE Seventh Respondent
THE MAGISTRATE COURT Eight Respondent
CAPE TOWN SUBDISTRICT
Date of Argument: 30 January 2025
Judgment delivered: 19 March 2025
JUDGMENT
MTHIMUNYE AJ:
Introduction :
[1] This is an application brought b y the Applicant to rescind, set aside and
declare certain judgments obtained by the First Respondent invalid. The First and
Second Respondent s oppose d the application. The application is based on Rule 42
of Uniform Rules of Court , alternatively the common law. The specific relief is
outlined in prayers 2, 2.1 , 2.2 and 2.3 of the Applicant’s notice of motion of :
“2. The following decisions are rescinded and set aside and declared invalid :
2.1 The decision of Justice Francis dated 14th February 2022 under case number
1599 0/21 granting the First Respondent an interim interdict authorizing the
termination of the lease agreement between the Applicant and the First
Respondent as well as ordering the Applicant to return the vehicles attached
the lease agreement to the First Respondent.
2.2 The decision of Justice Van Zyl AJ dated 19th April 2022 granting the First
Respondent an order under case number 15990/2021 in the absence of the
Applicant in terms of the set down under case Number 3383/2022.
2.3 The decision of this Honourable court under case number 1887/2023 date 1st
June 2023 granting the First Respondent default judg ment against the
Applicant in its absent .”
[2] The Applicant further seeks in terms of the notice of motion the application in
terms of which orders were obtained under case number 15990/2021 to be
declared void ab initio.
[3] The Applicant also seeks in terms of prayers 3 and 4 of the notice of motion
the return of the vehicles and damages suffered.
Factual B ackground :
[2] It is prudent to mention at this stage that the Third to the Sixth respondent s
were not parties to either the main application or action that is now being
sought to be rescinded or set aside by this court . Accordingly, no
consideration will be given to them in this judgment. I will consider the
Second Respondent ’s averments in respect of him being the erstwhile legal
representative of the Applicant in case 15 990/2021 and his response
pertaining to the allegation s made by A pplicant against him.
[3] Urgency is also no longer a factor for this court to consider , as it had been
dealt with prior to the matter being referred to me for hearing. I now turn to
deal with each case respectively:
Case 15990/2021 :
[4] It is important to note that in the main application 15990/2021 the First
Respondent was cited as the Applicant and Vink Waste and Seawater
Treatment Investors (Pty) LTD (“Vink Waste”) , as the Respondent . Mr Kafula
as the director of Vink Waste appeared on behalf of Vink Waste in his
personal capacity after the Second Respondent withdrew as attorney from
record . For the sake of clarity, in this application I will refer to the Applicant as
Mr Kafula and the other parties as they were cited in the main application s.
[5] The First Respondent entered into a vehicle rental agreement with Vink
Waste . Vink Waste breached the terms of this agreement by failing to make
payments timeously , which resulted in them falling into arrears. It is common
cause that the First Respondent proceeded by institut ing application
proceedings under case number 15 990/2021 seeking that a rule nisi be
issued against Vink Waste . In terms of the rule nisi, Vink Wate were t o
appear and show cause, if any , on a date to be determined by the court why
a final order should not be confirmed. In addition, t he sheriff was to be
directed to attach and seize the vehicles from Vink Waste and thereafter hand
over the vehicles t o the First Respondent for safekeeping ., This action is to be
initiated against Vink Waste within 60 (sixty) days of the interim order being
granted.
[6] The mat ter was defended . The Second Respondent filed a notice of intention
to oppose dated 20 October 2021 on behalf of Vink Waste . Subsequently on
25 October 2021 , an agreement was reached between parties that all
service s of notices , pleadings and documents were to be effected by email
and filed with the registrar .
[7] On 31 January 2022 matter was postpo ned to 31 January 2022 on the semi -
urgent roll for hearing.
[8] The Second Respondent , Schoemanlaw Inc , filed an answering affidavit on
behalf of Vink Waste, to which the Third Respondent replied by filing a
replying affidavit on 13 December 2021.
[9] On 4 January 2022, Mr Kafula on behalf of Vink Waste filed a further affidavit ,
labelled as an “Addition t o Answering Affidavit” . In this affidavit , he requested
the court to take notice that he is appearing on behalf of Vink Waste and that
service of all notices and documents were to be sent to 141 Castle Street,
Cape Town. Notwithstanding the agreement perta ining to service that was
filed with the Registrar of the Court on 25 October 2021 . Despite the fact that
the Second Respondent still on record on behalf of Vink Waste at that stage .
[10] On 31 January 2022 , both legal representatives on behalf of the First
Respondent and Vink Waste were before court . The Second Respondent
withdraw as attorney of record due to conflict of instructions between him and
Mr Kafula . Matter was subsequently postponed to 14 February 2022 , at 11h30
on the semi -urgent roll for hearing. Vink Waste was ordered to pay the Third
Respondent’s cost occasioned by the postponement.
[11] On 14 February 2022 , Mr Kafula appeared in his personal capacity informing
the court that he will mak ing submissions on behalf of Vink Waste .
Consequently , a rule nisi was issued after the court had heard submissions
from the Third Respondent’s legal representative and Mr Kafula on behalf of
Vink Waste. The rule nisi was extended to 29 March 2022, calling u pon Vink
Waste or any interested party to give reasons why a final order should not be
granted.
[12] On 29 March 2022, Vink Waste and Mr Kafula w ere absent, consequently the
rule nisi granted on 14 February 2022 was extended to 19 April 2022 , to
provide t he Third Respondent with an opportunity to institute action against
Vink Waste. N o order as to costs were made.
[13] The relevant action was instituted on 6 April 2022 , by the First Respondent
under case number 3383/2022, wherein the Third Respondent s ought
payment in the sum of R250 625.82 plus interest on the aforesaid amount at
prime rate of 7.75% calculated from 10 January 2020 , to date of final payment
in lieu of damages suffered , being the arrear and future rentals in terms of the
vehicle rental agreement.
[14] On 8 April 2022, the legal representative of First Respondent served the order
granted on 29 March 2022 via email on Mr Kafula, subsequently informing
him of the return date of 19 April 2022. A compliance affidavit on behalf of the
First Respondent was filed by Emma Van Der Merwe a candidate legal
practitioner, confirming that the order dated 29 March 2022 was served on
Vink Waste as well as Mr Kafula , and that the relev ant action as per order has
been instituted.
[15] Consequently, the cancell ation of the vehicle rental agreement between the
First Respondent and Vink Waste was declared valid by this court on 19 April
2022 .
Case 1887/2023 :
[16] The First Respondent issued summons in this action . Summons was served
on the First to Fifth Defendants on 15 February 2023 , at their chosen
domicilium citandi et executandi and registered addresses .
[17] The notice of opposition under case number 1887/20 23 was signed by Mr
Kafula , and no notice of opposition was filed by the other defendants, neither
was any referen ce made of the m by Mr Kafula in his notice of opposition. On
27 March 2023 , Mr Kafula filed his plea. Subsequently the parties agreed that
service of all proceedings, notices and all documentation to be by way of
email. Mr Kafula filed an amended plea on 19 May 2023.
[18] On 1 June 2023 , all the Defendants were in default. T he court subse quently,
only granted judgment against the First to the Fourth Defendant, and not Mr
Vink who was the Fifth Defendant as he had filed a notice of opposition and a
plea. It is common cause that t he matter against Mr Kafula, the Fifth
Defendant is currently scheduled for trial.
Issues to be determined :
[19] The court is required to determine the following issues:
(a) Whether the Applicant has shown a bona fide defence which exhibit
reasonable p rospects of success in the matter or good cause , whereby
a valid reason for the setting aside of the judgments exist.
(b) Whether the Applicant has provided any grounds upon which it can be
said that the judgments had been granted erroneously.
(c) Whether the Applica nt has provided a reasonable explanation for
launching the application two years after the judgment s/order were
granted in respect of matter 15990/2021 and 1 year in respect of
matter 1887/2023 .
Applicant’s Submissions :
Case 15 990/2021
[20] Mr Kafula in his founding affidavit avers that on 5 January 2022, he served a
notice on the attorneys of the Respondents, Annika Whelan Attorneys,
informing them of the address where all correspondence and notices were to
be sent.
[21] An interim interdict was granted against the First Respondent on 14 February
2022. He submits that the documents relating to case number 15990 /2021
were withheld from him by Second Respondent , his erstwhile attorney who
acted in collusion with the Third Respondent. He further avers that this
resulted in him being unable to access critical information necessary in
presenting Vink Waste’s case.
[22] He confirms that he complied with the i nterim court order dated 14 February
2022 by return ing the vehicles to the First Respondent.
[23] Mr Kafula further avers that subsequently , he received a notice of set down
for 19 April 2022 , which was purported ly for the matter under case number
15990/ 2021, which in fact it was not. He avers that it was instead a new action
that the First Respondent launched on 6 April 2022 , under case number
3383/2022 , which was never served on him . According to Mr Kafula the
launching of this action was done fraudulently by the First Respondent,
resulting in him being unable to locate the court file on case 15990/2021 and
determining who the judge was presiding over the matter .
[24] He confirms that he was present at co urt on 19 April 2022 , when the rule nisi
was confirmed and the final order for the return of the vehicles was granted .
His explanation as to why he was unable to attend the court proceedings was
due to the fact that the matter was not posted on the notice board and the
Registrar of the Court being unable to provide him with the information
regarding the court in which he was scheduled to appear on case 33 83/22 .
Consequently, the rule nisi granted on case number 15990/2021 , on 14
February 2022 , was made final. He avers that his constitutional right in terms
of section 34 had been violated as he had not been afforded an opportunity to
place his dispute in a public hearing before court . Furthermore, that this
serves as sufficient justification for the court to rescind and set aside the
interim court order dated 14 February 202 2 as well as the final order dated 19
April 2022.
[25] During his submissions and in his founding papers Mr Kafula contradict ed
himself by asserting that he never received any notices from the First
Respondent, resulting in him being unaware of the date the matter was on the
roll. Accordingly, he had no knowledge that a default judg ment had been
granted against him . He submitted that he only became aware that the default
judgment had been granted against him in case number 15990/2021 when he
approached the Registrar of the Court on 12 June 2022 to request assistance
in locating the case file.
Case 1887/2023
[26] Mr Kafula in his founding affidavit and during argument avers that on or about
February 2023, the First Respondent instituted action proceedings against
him under case number 1887/2023 . He maintains that this matter is identical
to the one that was brought under case number 15990/2021. He avers that
notwithstanding him acting in person , filing a notice of intention to defend and
his plea , an order was still granted against him in default .
[27] Mr Kafula attempted to set out what the r ational e for his application was in his
papers by quoting Rule 42 and cit ing various cases dealing with whether it is
a procedural irregularity to grant an order where a party has not been afforded
an opportunity to participate in the court proceedings . In further elaborat ion
during his submissions he referred to the case of Secretary of the Judicial
Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector including Organs of State v Zuma and Others
(CCT 52/21) [2021) ZACC 18; 2021 (9) BCLR 992 (CC) ; 2021 (5) SA 327
(CC) (29 June 2021) , and submitted that in terms of the common law he only
has to prove that he has establish ed a reasonable and satisfactor y
explanation for his failure to oppose the proceedings and that he has a bona
fide case that carries some prospects of success.
[28] Mr Kafula further also avers in his papers that the First Respondent was not
authorised to terminate the vehicle rental agreement without his permission.
He refused to pay an imaginary amount to the First Respondent for the rental
of the vehicles as there was no adequate justification, which he believed
constituted a breach of his rights. Furthermore , he avers that the decision by
Francis J, to enforce the payment provision of the vehicle rental agreement
was inconsistent with the established principles of the law of contract in South
Africa.
[29] To substant iate th is contention during his submissions, Mr K afula referred the
court to the case of Barkhuizen v Napier (CCT72/05) [2007] ZACC 5; 2007
(5) SA 323 (CC) ; 2007 (7) BCLR 691 ( CC) (4 April 2007) and avers that
based on the principles stated in this case the order dated 19 April 2024,
under case number 15990 /2021 and the order dated 1 June 2023, under case
number 1887/2023 , should be rescinded as it raises constitutional issues and
arguable points to the general public . In addition, the Applicant also requests
that this court impose a punitive cost order against the First Respondent in the
event that his application should be successful.
[30] The Applicant argue d that his failure to appear in court was attributable to his
legal representative not supplying him with the case file, which hindered his
ability to appoint a new legal representative. He submitted that the First
Respondent failed to apply for condonation for the late filing of their answering
affidavit , and therefore , the court should not consider the First Respondent’s
answering affidavit.
[31] Applicant also seeks a punitive cost order against the Fourth to the Sixth
Respondents, a s he avers that they share responsibility for the irregular court
process due to their failure to implement significant measures to build an
incorruptible system, which would be to his disposal.
First Respondent’s Submissions :
[32] In response to the Applicant’s averments, Ms Sithabile Mpanza (“Ms
Mpanza”) deposed to an affidavit on behalf of the First Respondent. Ms
Mpanza, confirms that she is employed by the First Respondent as a
Commercial Credit Recoveries Manager. The following is a concise summary
of the averment s in her affidavit :
[33] She is duly authorised to depose to this affidavit , which contain facts within
her own personal knowledge . She avers that the First Respondent is of the
view that Mr Kafula failed to make out a case for the relief sought. In addition,
Mr Kafula’s grounds for urgency is non -existent , having regard to the fact that
the rule nisi was obtained and fully opposed as far back as 14 Februar y 2022.
Furthermore that the rule nisi was confirmed on 19 April 2022, almost two
years ago.
[34] She further avers that the Mr Kafula failed to seek leave to appeal , as all the
issues he has raised in his papers have been present during the proceedings .
Mr Kafula filed an opposing affidavit together with a supplementary affidavit in
opposition of the First Respondent’s application. Accordingly, she avers that
the Mr Kafula fails to disclose any grounds for the rescission of the judgments
or orders that were obtained by the First Respondent.
[35] Ms Mpanza further avers that the Mr Kafula fails in all respects to indicate that
the judgments granted were erroneously sought or obtained . The First
Respondent during oral submissions submitted that Mr Kafula failed to show
good cause in his founding papers which supports the re scission of the orders
or judgments. Furthermore, that there is no bona fide defence to the First
Respondent’s claim in the main application and neither was Mr Kafula in
wilful default.
[36] Ms Mpanza further avers , that under the common law , Mr Kafula failed to
demonstrate sufficient cause nor presente d a reasonable and acceptable
explanation for his default . Additionally, it was argued that on the merits ,
there exists no bona fide defence which prima facie, carries some prospect of
success.
[37] Ms Mpanza further avers and the Third Respondent during his submissions
that in matter 15590/2021 , the Court decided upon the issues of the vehicle
rental agreement in the initial application, in Mr Kafula’s presenc e.
Consequently, the Court had full knowledge of the averments made in that
application and as such the order was not obtained erron eously. In addition ,
she avers that the Mr Kafula is not disclosing any facts that are different from
those already determined by the Court in the main application , which is
necessary for this Court to decide whether the judgement should be set aside.
[38] Ms Mpanza further avers in the founding papers that under case 1887/2023 ,
Mr Kafula , as sole director , was fully aware of the procee dings , having served
the First Respondent with a notice of intention to defend and a plea.
Furthermore, Mr Kafula was present in Court at the time , having filed the
notice to oppose and answering and supplementary affidavit to the First
Respondent’s application for the return of the vehicles . Therefore, Mr Kafula’s
contention that the order was granted in his absence is unsubstantiated .
[39] Ms Mpanza further avers that Mr Kafula was present at the time when the
matter was postponed per court order to a date as agreed upon by the
parties. A copy of the order was handed to the Mr Kafula on the same date.
She is adamant tha t Mr Kafula , consequently , had full knowledge of when he
had to return to Court.
[40] Ms Mpanza avers that Mr Kafula failed to disclose any grounds for a decision
of the orders or judgment granted by this Court , nor does the Applicant
advance any defence, save for the legal argument , which she contends fails
to take this matter any further. She seeks this court to dismiss the Mr Kafula’s
application with costs.
[41] Counsel on behalf of the First Respondent submitted that during the
procee dings of this matter, case 644 /2024 Mr Kafula was afforded an
opportunity by the court to amend his notice of motion . They then
subsequently filed their answering affidavit, therefore they do not need to
apply for condonation of the late filing of their answering affidavit as Mr Kafula
filed a new notice of motion to which they replied.
Second Respondent’s Submissions :
[42] The Se cond Respondent avers due to Mr Kafula’s founding affidavit and
notice of motion being inconsistent and contradictory . He disputes that he was
acting in collusion with the First Respondent on case 15990/2021 or that he
withheld the case file from the Mr Kafula. He avers that he withdrew from the
case as there was a conflict of instructions between him and Mr Kafula,
evidenced by Mr Kafula filing an additional answering affid avit after he had
already filed an answering affidavit. Furthermore that the present application
by Mr Kafula bears no relevance to him.
Applicable Legal Principles :
[43] Recission in terms of Rule 42 of the Uniform Rules of Court provides that:
“Variation and rescission orders
(1) The court, may, in addition to any other powers it may have, mero m otu
or upon the application of any party affected, rescind or vary:
(a) an order or judgment erroneously sought or erroneously granted in the
absence of any affected party affected thereby;
(b) an order or judgment in which there is an ambiguity, or a patent error or
omission, but only to the extent of such ambiguity, error or omission ;
(c) …”
[44] In instances where Applicants also rely on the common law alternative to Rule
42, they are required to show that there is sufficient or good cause warranting
the judgment or order to be rescinded. In Government of the Republic of
Zimbabwe v Fick 2013 (5) SA 325 (CC); 2013 (10) BCLR 1103 (CC) at
para 85, the Constitutional affirmed the common law requirements and stated
as follows:
“the requirements for re scission of a default judgment are twofold. First, the
applicant must furnish a reasonable and satisfacto ry explanation for its
default. Second, it must show that on the merits it has a bona fide defence
which prima facie carries some prospect of success. Proof of these
requirements is taken as showing that there are sufficient cause for an order
to be rescin ded. A failure to meet one of them may result in refusal of the
request to rescind.”
[45] This extract clear ly indicates that in order for an Applicant to rely on the
common law, he will have to satisfy both requirements as set out in Fick. In
other words, the Applicant must establish that he had a reasonable and
satisfactory explanation for his failure to oppose the default judgment
proceedings and that he has a bona fide defence with reasonable likelihood of
success on the merits.
Analysis :
[46] In their heads of arguments, t he First Respondent contends that it appears
from the Applicant’s notice of motion that the relief he is seeking is that of a
review of the proceedings rather than an application for a re scission of
judgment. I am inclined to agree with the First Respondent . This is evidenced
from the Applicant’s founding affidavit at paragraph 17 where he states; “ The
main purpose of the application is to obt ain a re scission order of the previous
decisions of this Honourable Court against the Applicant . The following
decisions below are to be reviewed and set aside and declared invalid …”
[47] The Applicant goes further to contradict himself at paragraph 18 of his
founding affidavit by stating; “The First Respondent’s application under case
number 15990/21 is void ab initio 13 January 2021 to service notices and
proceeding on the address provide d by the Applicant on 5 January 2022.”
[48] Given the inconsistencies present in paragraphs 17 and 18 of the Applicant’s
founding affidavit, the specific relief sought by Mr. Kafula remains unclear . In
his notice of motion, the request for this court to r escind, set aside, and
declare the decisions of the court a quo invalid is at odds with his founding
affidavit, where he seeks a review of the merits in case 15990/2021.
[49] I am of the view that the Mr Kafula ought to have followed the procedure
provided for in Rule 49 of the Uniform Rules of Court . This rule allows th e
court to reconsider the merits of the matter and to decide whether or not to
uphold the decision that was previously made.
[50] Mr Kafula’s application for rescission regarding these matters extended over
435 pages inclusive of his notice of motion. During the review of these papers ,
the terms and the purpose of the sought order were not clearly defined . He
failed to articulate clearly what the grounds for the rescission of these two
orders/judgments that were granted are. I am inclined to agree with the
argument presented by the First Respondent that Mr Kafula’s application is
unclear as to whether the application is premised upon the common law on or
Rule 42 of the Uniform Rules of Court .
Whether the Applicant has provided any grounds upon which it can be said
that the judgments had been granted erroneously.
Case 15990/2021
[51] Upon a proper analysis of the papers , it is noted that on page 550 of the
transcribed record of proceedings dated 31 January 202 2 annexed to the
founding papers , the Applicant appeared personally in court for case number
15990/2021, before Francis J. The matter was subsequently postponed to 14
February 2022. This is confirmed by both the Applicant and the First
Respondent in their affidavits.
[52] It is not in dispute that o n 14 February 2022 , the accused appeared before
Francis J, as noted on page 556 of the transcribed record . The record further
shows that when questioned by the court about the agreement between him
and the First Respondent ,he acknowled ged that there was an agreement in
place that had been cancelled. The court then granted him leave to file his
supplementary affidavit to elaborate his defences , and consequently on the 14
February 2022 the interim order was granted in Mr Kafula’s presence.
[53] The matter was consequently postponed with the applicant being aware that
he had to appear in court on 29 March 2022. He does not dispute that he
failed to appear on 29 March 2022 and that the return date was extended to
19 April 2022. Mr Kafula does not dispute that he was served with the notice
of set down of 19 April 2022 together with the court order dated 29 March
2022. By the Applicant’s own averments he was at court on both 29 March
2022, and 19 April 2022, the day the interim order was made final, but was
looking for his case file.
[54] The argument by Mr Kafula that the new action launched by the First
Respond ent on 6 April 2022, under case number 3383/2022, was done
fraudulently, resulting in him being unable to locate the court file on case
15990/2021 is unsubstantiated. The matter in case 15990/2021 was an
application for the cancellation of the vehicle rent al agreement, whereas the
matter under case number 3383/2022 is a total different action that was
instituted against Mr Kafula and had no bearing on the return date of the rule
nisi that was granted on 14 February 2022.
Case 1887/202 3
[55] In this action there were five Defendants , the Mr Kafula being the Fifth
Defendant. The notice of intention to defend was signed by Mr Kafula in his
personal capacity, without any mention of the other Defendants. Pleadings in
this action were also filed by the Mr Kafula , which is a clear indication that he
had full knowledge of the action and that he was the only person that
defended the action. Consequently, judgement was not rendered against him
in his personal c apacity, but rather against the Company, Vink Multi Services
(Pty) Ltd, and the other defendants.
Whether the Applicant has shown a bona fide defence which exhibit
reasonable prospects of success in the matter or good cause whereby a valid
reason for the setting aside of the judgments exist.
[56] The references made by Mr. Kafula to numerous case law do not elevate his
founding affidavit to a proper pleading that would justify the relief sought. He
merely reiterates what has already been decided upon, in over 88 pages of
his founding papers . Furthermore he does not set out any comprehensible
grounds for the recission or variation of the judgment /order under the common
law or Uniform Rule 42. I am of the view that the Mr Kafula has not
demonstrated a genuine defence that presents reasonable prospects of
success in this case, nor has good cause been shown for a valid reason to set
aside the order or judgment/s in case 15990/2021 or 1887/2023 .
Whether the Applicant has provided a plausible explanation for launching the
application 2 years after the judgment was granted in respect of matter
15990/2021 and 1 year in respect of matter 1887/2023.
[57] Mr Kafula failed to provide adequate and succinct reason s for the delay in
bringing his application to have the judgment/s or order rescinded.
Furthermore, Mr Kafula did not submit an application to this c ourt to condone
the late filing of the application on his part. Counsel for the First Respondent
correctly referred to Constitutional Court case of Ethekwini Municipality v
Ingonyama Trust 2014 (3) SA 240 ( CC), where it was held that where the
delay was lengthy, the explanation given must not only be satisfactory , but
must also cover the entire period of the de lay. The only clear reason that Mr
Kafula provide for the delay is due to him looking for the case file after his
attorney withdrew from record and that he had to attend another matter in the
Magistrate’s court apparently dealing with the same issue . That contention
holds no water as he failed to explain what steps he took from the time he
became aware of the order or judgment/s that were granted in case
15990/2021 and 1887/2023 up to when he launched the application in court.
No further explanation setting out the delay succinctly since he became aware
of the judgement or orders. I am therefore of the view that the application has
not been brough t within a reasonable time frame and falls to be dismissed on
that ground alone.
Whether Mr Kafula can raise the argument of the right to a fair hearing in terms
of section 34 of the Constitution .
[58] Mr Kafula , although no judgment was granted against him in case 1887/2023,
and although being aware of the court date in case 15990/2021 , but failed to
appear in court , is now raising a section 34 of the Constitution defence in an
application for rescission, variation, and setting aside . He is fundamentally
contending that his entitlement to a fair hearing and access to justice has
been infringed upon.
[59] Section 34 of the Constitution guarantees that every individual has the right to
have any dispute that can be resolved by applicat ion of the law decided in a
fair and public hearing before a court . It is apparent from the papers of Mr
Kafula and the First Respondent , that Mr Kafula was fully aware of the date
that he had to appear in court in case 15990/21 . By Mr Kafula’s own
admission in his founding affidavit he was at court but at the Registrar of the
Court not looking for case 15990/2021 but looking for a case fil e of a new
action under case number 3387/2022 . More importantly on 14 February 2022
he was present in court when the rule nisi was granted in case 15990/2 021
and was informed by the court of the return date set for 29 March 202 2.
[60] He failed to appear on 29 March 2022, resulting in the court granting an order
for the matter to be postponed to 19 April 2022. Furthermore, he does not
dispute receiving the email with the order of 29 March 2022 , informing him of
the extension date of the rule nisi and that he had to appear in court. It is clear
that he knew that he had to be at court on 19 April 2022 . This is eviden t from
the admission in his founding affidavit that he was at court on the same date.
In my view the failure of Mr Kafula to appear, despite being aware of the court
date, can only be seen as failure by him to participate in the fair hearing,
potentially violating the constitutional right in terms of section by his own
conduct.
[61] It is important to note that no judgment or order in case 1887/2023 was not
granted against Mr Kafula . The ruling pertained solely to the other
Defendants. The matter against him is still on the roll for trial. Mr Kafula can
therefore not rely on the sec tion 34 constitutional defence , as he will be given
a fair hearing with regard to his matter on a date in due course.
[62] In my view for the reasons set out above the Applicant has failed to show that
the order or judgment/s granted was erroneously sought or obtained , or that it
was invalidly or unconstitutionall y granted. It follows that the Applicant’s
application is flawed due to unsubstantiated contentions and falls to be
dismissed with costs.
[63] In the result I make the following order:
1. The application to rescind and set aside or declare invalid the
judgments/order under case number 15990/2021 and case number
1887/2023 is dismissed with costs on an attorney and client scale B.
________________________
MTHIMUNYE AJ
JUDGE OF HIGH COURT
APPEARANCE :
Attorney for the Applicants: Mr Kafula (In person) Vincent.kafula@gmail.com
Counsel for the First Respondent: Adv Willie Steyn wpsteyn@icloud.com
Attorney for the First Respondent: Baloyi Swart & Associates Inc
herman@baloyiswart.co.za
Attorney for the Second Respondent: Schoeman Incorporated
enquiries@schoemanlaw.co.za