IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION , PRETORIA)
(l) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
(4) DATE: 19 MAY 2025 -'-----"
(5) SIGNATUR E: C.J. COLLIS
ROAD ACCIDENT FUND
and
MVL GOBHOZI
(Link: 3040286) CASE NO: 13027 /2024
APPLICANT
RESPONDENT
This judgment is issued by the Judges whose names are reflected
herein and is submitted electronically to the parties/their legal
representatives by email. The judgment is further uploaded to the
electronic file of this matter on Caselines by the Judge's secretary.
The date of this ju dgment is deemed to be 19 May 2025.
JUDGMENT
COLLIS J
Introduction
1.This is an opposed application wherein as per the Notice of
Motion, the Applicant seeks the following relief:1
“1. Condonation of late filing of the re scission application.
2. Rescission of the judgment granted by Justice Mokose on
the 26th October 2022.
3. Each party to pay own costs, alternatively Respondent to
pay costs if opposed.
4. Further and/or alternative relief. ”
2. The application was enrolled for hearing by the Respondent and
the Applicant herein also did not file any Heads of Argument in
prepar ation of the hearing.
3. It is also worth mentioning that o n 18 January 2024, the
Applicant’s Replying Affidavit was struck out as an irregular step
and is therefore not before the Court.2
4. In this rescission application, the Applicant is seeking the setting
aside of the order granted by Mokose J on 26 October 2022 .3
Background
5. The Respondent before Court was a pedestrian in a motor vehicle
collision which occurred on 25 September 2010, wherein he
sustained serious bodily injuries and suffered damages as a result
thereof.4
6. The claim was lodged with the Applicant on 1 August 2011.5
7. Despite the expiry of the statutory time period, the Applicant did
not make an acceptable offer in respect of the matter, and it was
accordingly necessary to issue and serve summons upon the
Applicant .6
1 Caselines 024 -1.
2 See Caselines 000, sub -item 1, pages 000 -1 up to and including 000 -2.
3 See Caselines 024, sub-item 1, pag es 024 -1 up to 024 -3 and , Caselines
024, sub -item 10, pages 024 -79 up to and including 024 -82, and
Caselines 024, sub -item 13, pages 024 -152 up to and including 024 -154,
and Caselines 024 , sub-item 1, pages 024 -2.
4 See Caselines 015, sub-item 3, pages 015 -14 up to and including 015 -
17.
5 See Caselines 024, sub-item 16, page 024-165 paragraph 5.1, as read
together with Caselines 024, sub -item 17 and 18 , page s 024-224 up to
and including 024 -236.
6 See Caselines 024, sub-item 16, page 164 paragraph s 5.2, and 5.3 as
8. Summons in this matter was issued on 1 3 February 2014 , and
served upon the Applicant on 18 February 2014 .7
9. The merits of the action w as not resolved, until the trial date of 4
November 2015, despite the Applicant having been in possession of
all the necessary documentation to have properly considered the
claim, since 1 August 2011.
10. The Applicant gave notice of intention to defend the action on
24 February 2014.
11. The Applicant delivered its plea only on or about 22 April 2014. 8
12. The first and only pre -trial attended by the Applicant, was held
on 26 June 2014.9
13. On 4 November 2015, an order was granted in terms whereof
the General Damages were resolved in the amount of R350 000.00,
and the Defendant was ordered to supply the Plaintiff with an
undertaking, in terms of section 17(4)(a) of the Road Accident Fund
read together with Caselines 024, sub-items 19 and 20 , page s 024-236 up
to and including 024 -245.
7 See Caselines 024, sub -items 19 and 20 , page s 024-237 up to and
including 024 -245.
8 See Caselines 024, sub -item 16, page 024 -165 paragraph 5.4, as read
together with Caselines 024, sub -item 21.
9 See Caselines 024, sub-item 16, page 024-165 paragraph 5 5.6, as read
Act, 56 of 1996 (limited to 70 %, indicating the resolution of the
merits on that basis).10 Despite the agreement in the aforesaid pre -
trial (that the matter would proceed in respect of merits and
quantum) , the Applicant sought an indulgence, from the
Respondent, to postpone loss of earnings.
14. The action was certified trial ready, on 24 August 2017, in
respect of the outstanding issue, of loss of earnings .
15. On 8 September 2017, a notice of s et down was served upon
the Applicant’s attorneys.11 This related to the trial date of 23 April
2019. There was no offer forthcoming, on the aforesaid date, and
unfortunately due to the unavailability of judges, the matter was
removed from the roll.12
16. During July and August 2020, various correspondence was sent
to the Applicant’s attorneys, requesting that a pre -trial conference
be held .13
17. On 30 April 2021, a Rule 37(2)(a) notice was served upon the
together with Caselines 024, sub-item 22.
10 See Caselines 024, sub-item 16, page 024-165 paragraph 5. 9, as read
together with Caselines 024, sub-item 25.
11 See Caselines 024, sub -item 16, page 024 -167, paragraph 5.16.
12 See Caselines 024, sub -item 16, page 024 -167, paragraphs 5.16 and
5.17.
13 See Caselines 024, sub-item 16, page 168 paragraph s 5.22 and 5.23,
as read together with Caselines 024, sub -items 26 up to and including 28 .
Applicant, for a pre -trial conference to be held on 7 May 2021.14 The
Applicant did not attend the pre -trial conference.
18. On 10 May 2021, a nother notice in terms of Rule 37(2)(a) was
served upon the Applicant, calling for a pre -trial conference on 14
May 2021.15 The Applicant did not attend this pre -trial conference
either.
19. On 17 May 2021, a further Rule 37(2)(a) notice was served
upon the Applicant calling for a pre -trial conference to be held on 21
May 2021.16 This pre -trial was also not attended by the Applicant.
20. Due, inter alia , to the Applicant’s repeated failures to attend
pre-trial conferences, the Respondent served an application upon
the Applicant , on 24 June 2021, to compel the Applicant to attend a
pre-trial conference. The application was set down for 17 August
2021.17 Notice of Set Down of the application was properly served
upon the Applicant.
21. An order was granted on 17 August 2021 compelling the
Applicant to attend a pre -trial, and a copy of this order was duly
14 See Caselines 024, sub -item 16, page 024 -168, paragraph 5.25 thereof,
as read together with Caselines 024, sub -items 29 and 30.
15 See Caselines 024, sub -item 16, page 024 -169, paragraph 5.28, as
read together with Caselines 024, sub -items 39 and 40.
16 See Caselines 024, sub -item 16, page 024 -170, paragraph 5.31, as
read together with Caselines 024, sub -items 45 and 46.
17 See Caselines 024, sub -item 16, pages 024 -172, paragraphs 5.34 and
served upon the Applicant.18
22. The Applicant failed to comply with the aforesaid Court order,
and accordingly, on 13 October 2021, an application was served
upon the Applicant, wherein an order was sought, inter alia , striking
out their defence. The Application was set down for 25 October
2021, notice having been duly given to the Applicant.19
23. On 25 October 2021, an order was granted, striking out the
Applicant’s defence. A copy of the order was sent to the Applicant
on 3 November 2021.20
24. A notice of set -down for the default judgement hearing date of
26 October 2022, was served upon the Applicant on 14 December
2021.21
25. Between 18 October 2022, and 20 October 2022, all the
documentation in relation to the trial was emailed to the “new”
claims ’ handler and the deponent to the Founding Affidavit.22
5.35.
18 See Caselines 024, sub -item 16, page 024-172, paragraph 5.36 as read
together with Caselines 024, sub -items 54 and 55.
19 See Caselines 024, sub -item 16, pages 024 -172 and 024 -173,
paragraph 5.37, as read together with Caselines 024, sub -items 56 up to
and including 59.
20 See Caselines 024, sub -item 16, page 024 -173, paragraph 5.38.
21 See Caselines 024, sub -item 16, page 024 -173, as read together with
Caselines 024, sub -items 62 up to and including 64.
22 See Caselines 024, sub -item 16, pages 024 -173 and 024 -174,
paragraphs 5.40 up to and including 5.42, as read together with Caselines
024, sub -items 65 and 66.
26. The State Attorney who purported to provide a notice of
substitution, on 24 October 2022, was also invited to and accessed
Caselines on 25 October 2022.23
27. The Respondent proceeded with the Default Judgement Trial on
26 October 2022, in the absence of the Applicant, and an order was
granted by Mokose J, which was uploaded to Caselines on 27
October 2022, and also emailed to the claims handler, and the State
Attorney .24 The defence of the Applicant had been struck out a year
before the Default Judgement Trial date, and the Applicant would in
any event, even if it had attended Court on that day, have had no
right of appearance. They could present no evidence, and also could
present no argument before the Court as they were no longer
before the Court.
28. The present application was only launched before this Court
during March 2023 ,25 some five months after the order by Mokose J
was granted.
Relief sought as per the Notice of Motion
23 See Caselines 024, sub -item 16, page 024 -174, paragraphs 5.43 and
5.44.
24 See Caselines 024, sub -item 16, page 024 -174, paragraph 5.46.
25 See Caselines 024, sub -item 16, pages 024 -174 and 024 -175,
paragraphs 5.47 up to and including 5.48, as read together with Caselines
024, sub -items 1, 9, 10, 12, 13 and 14.
29. The Applicant , notwithstanding the relief sought as per the
Notice of Motion, as per the Founding Affidavit also seeks an order
that: “… any interdict and / or warrant of execution which may have
been issued against the Applicant, as a result of the court order
dated the 26 October 2022, issued by the Justice Mokose J on 26th
October 2022 be stayed.”26
30. The Notice of Motion , quoted in paragraph 1 above, makes no
mention for such relief and accordingly in the absence of an
amendment to the Notice of Motion, and before this Court there was
none, this Court will not further entertain the granting of such relief.
Condonation
31. As per prayer I of the issued Notice of Motion, the Applicant
seeks condonation for the late filing of the rescission application in
terms of Rule 27(3) of the Uniform Rules of Court.
32. Rule 27(3) clearly defines that a Court may, “…on good cause
shown , condone any non -compliance with these rules .”
33. As per its Founding Affidavit, t he Applicant makes very little
attempt to properly explain why the application was only launched
in March 202327, this when the order to be rescinded had already
26 See Caselines 024, sub -item 2, page 024 -6, paragraph 6.1.
27 See Caselines 024, sub-item 2, page s 024-7 up to and including 024 -8,
paragraphs 7.1 up to and including 7.8.
come to their knowledge on 26 October 202228 or at the latest 27
October 2022 .29
34. As part of its explanation presented explaining the delay , the
Applicant refers to the fact that it is working with “ the public purse ”
and that it takes “careful deliberation” to deal with these types of
matters .
35. T he Applicant however, is required to show “good cause” in
order to obtain condonation, and if it cannot do so, the issue of any
prejudice, which it may suffer, does not even arise for
determination .30
36. Courts i n considering whether good cause ha s been shown,
have tried to steer clear of a precise definition of good cause.
37. In Melane v Santam Insurance Co. Ltd31 Holmes JA stated the
following :
“In deciding whether sufficient cause has been shown, the basic
principle is that the court has a discretion to be exercised judicially
28 See Caselines 024, sub -item 2, page 024 -7, paragraph 7.2.
29 See Caselines 024, sub -item 16, page 024-174, paragraph 5.46, as
read together with Caselines 024, sub -item 69, page 024 -394 up to and
including 024 -396.
30 See Standard General Insurance Co Ltd v Eversoft (Pty) Ltd 2000 ?(3)
SA 87 (W) at 95E -F.
31 1962 (4) SA 531 (A) at 532 C - F.
upon a consideration of all the facts and, in essence, is a matter of
fairness to both sides. Among the facts usually relevant are the
degree of lateness, the explanation therefore, the prospects of
success, and the importance of the case. Ordinarily these facts are
inter-related; they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion ...”
38. In applying the ratio in Melane, supra , the court in Academic
and Professional Staff Association v Pretorius NO and Others32
summarised the principles for consideration as follows:
"The factors which the court takes into consideration in assessing
whether or not to grant condonation are: (a) the degree of lateness
or non -compliance with the prescribed time frame; (b) the
explanation for the lateness or the failure to comply with time
frame; (c) prospects of success or bona fide defence in the main
case; (d) the importance of the case; (e) the respondent's interest
in the finality of the judgment; (f) the convenience of the court; and
(g) avoidance of unnecessary delay in the administr ation of justice…
It is trite law that these factors are not individually decisive but are
interrelated and must be weighed against each other. In weighing
these factors for instance, a good explanation for the lateness may
assist the applicant in compensating for weak prospects of success.
32 (2008) 29 ILJ 318 (LC) at para 17 - 18.
Similarly, strong prospects of success may compensate the
inadequate explanation and long delay."
39. In Brummer v Gorfil Brothers Investments (Pty) Ltd33 the
Constitutional Court pointed out that an application for condonation
should be granted if it is in the interests of justice and refused if it is
not. The Constitutional Court went on to say that the interests of
justice must be determined by reference to all relevant factors
outlined in Melane , supra, including the nature of the relief sought,
the nature and cause of any other defect in respect of which
condonation is sought, and the effect of the delay on the
administration of justice .34
40. In Steenkamp and Others v Edcon Limited,35 the Constitutional
Court reaffirmed that granting condonation must be in the in terest
of justice and it referred with approval to its decision in Grootboom
v National Prosecuting Authority and Another:36
“[36] Granting condonation must be in the interests of justice.
This Court in Grootboom set out the factors that must
33 2000 (2) SA 837 (CC).
34 [2000] ZACC 3; 2000 (5) BCLR 465; 2000 (2) SA 837 (CC) at para 3;
See also Ndlovu v S 2017 (10) BCLR 1286 (CC); 2017 (2) SACR 305 (CC)
(15 June 2017) at paras 22 – 23; Van Wyk v Unitas Hospital (Open
Democratic Advice Centre as amicus curiae) [2007] ZACC 24; 2008 (2) SA
472 (CC) at 477A -B; SA Post Office Ltd v CCMA [2012] 1 BLLR 30 (LAC)
at para 23.
35 [2019] 11 BLLR 1189 (CC).
36 [2013] ZACC 37; 2014 (2) SA 68; 2014 (1) BCLR 65 (CC).
be considered in determining whether or not it is in the
interests of justice to grant condonation:
“[T]he standard for considering an application for
condonation is the interests of justice. However, the
concept ‘interests of justice’ is so elastic that it is not
capable of precise definition. As the two cases
demonstrate, it includes: the nature of the relief sought;
the extent and cause of the delay; the effect of the
delay on the administration of justice and other
litigants; the reasonableness of the explanation for the
delay; the importance of the issue to be raised in the
intended appeal; and the prospects of success. It is
crucial to reiterate that both Brummer and Van Wyk
emphasise that the ultimate determination of what is in
the interests of justice must reflect due regard to all the
relevant factors, but it is not necessarily limited to those
mentioned above. The particular circumstances of each
case will determine which of these factors are relevant.
It is now trite that condonation cannot be had for the
mere asking. A party seeking condonation must make
out a case entitling it to the court’s indulgence. It must
show sufficient cause. This requires a party to give a full
explanation for the non -compliance with the rules or
court’s directions. Of great significance, the explanation
must be reasonable enough to excuse the default.
The interests of justice must be determined with
reference to all relevant factors. However, some of the
factors may justifiably be left out of consideration in
certain circumstances. For example, where the delay is
unacceptably excessive and there is no explanation for
the delay, there may be no need to consider the
prospects of success. If the period of delay is short and
there is an unsatisfactory explanation but there are
reasonable prospects of success, condonation should be
granted. However, despite the presence of reasonable
prospects of success, condonation may be refused
where the delay is excessive, the explanation is non -
existent and granting condonation would prejudice the
other party. As a general proposition the various factors
are not individually decisive but should all be taken into
account to arrive at a conclusion as to what is in the
interests of justice.”
[37] All factors should t herefore be taken into account when
assessing whether it is in the interests of justice to
grant or refuse condonation.”
41. In the present application the deponent sets out that t he Court
order come to their knowledge on 26 October 202237 or at the latest
27 October 2022.38 Apart from the vague reference to nebulous
policy directives, and policies and procedures, for referral of a
matter to the so called “rescission committee” there is no
explanation of the delay from 26 or 27 October 2022, until March
2023, when the application was eventually launched.
42. Having regard to the authorities listed above the deponent to
the Founding Affidavit was required to satisfactorily explain the
delay , that it would be in the interest of justice to have the
judgment rescinded and to explain to this Court its reasonable
prospect of success to have the judgment rescinded .
43. In casu, the Applicant has failed to satisfactorily explain its
delay and it has failed to persuade this Court of its prospect of
success to have the judgment rescinded.
44. Consequently, in exercising my discretion judicially, condonation
is refused.
Merits of application in terms of Rule 42(1)(a)
45. In the present application, it is unclear, on what basis the
37 See Caselines 024, sub -item 2, page 024 -7, paragraph 7.2.
38 See Caselines 024, sub -item 16, page 024 -174, paragraph 5.46, as
read together with Caselines 024, sub -item 69, page 024 -394 up to and
Applicant brings this application i.e. Rule 31(2)(b), Rule 42 or the
common law. The Deponent to the Applicant’s founding affidavit
refers in paragraph 6.3 of the Found ing affidavit to Rule 42(1)(a),
but give the conflicting references to time periods and condonation .
This confusion on the part of the Applicant, makes it difficult for this
Court to consider the application against the di fferent requirements
of the various rules.
46. At the outset, it should be mentioned that condonatio n is
however not even strictly speaking required where a rescission
application is brought in terms Rule 42 or the common law, as in
terms of the common law and Rule 42 the launching of a rescission
application, must merely be brought within a reasonable time ,39 and
as already found no basis has been made out to have condonation
granted.
47. Rule 42(1)(a) provides as follows:
“(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:
including 024 -396.
39 See First National Bank of Southern Africa Ltd v Van Rensburg N.O.: in
re First National Bank of Souther n Africa Ltd v Jurgens 1994(1) SA 677
(T) at 681 B -G and Firestone South Africa v Gentiruco AG 1977(4) SA 298
(A) at 306 H.
(a) An order or judgment erroneously sought, or
erroneously granted in the absence of any party
affected thereby;”
48. The matter of Lodhi 2 Properties Investments CC v Bondev
Developments (Pty) Ltd (128/06) [2007] ZASCA 85; [2007] SCA 85
(RSA); 2007 (6) SA 87 (SCA) (1 June 2007), is very informative, in
respect of what is considered when the question is posed, whether
an order was “erroneously sought, or erroneously granted” .
49. In Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E) at
471F-G, where Erasmus J said:
“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.”
50. In the matter of Kgomo and Another v Standard Bank of South
Africa and Others (47272/12) [2015] ZAGPPHC 1126; 2016 (2) SA
184 (GP) (15 June 2015), Dodson AJ stated, at [1 1] up to and
including [11.7], the following:
“[11] Based inter alia on the judgments of the Supreme Court
of Appeal in Lodhi 2 Properties Investments CC v
Bondev Developments (Pty) Ltd (128/06) [2007] ZASCA
85; [2007] SCA 85 (RSA); 2007 (6) SA 87 (SCA) (1
June 2007) and Lodhi 2 Properties Investments CC v
Bondev Developments (Pty) Ltd 2007 (6) SA 87
(SCA) , the following principles govern rescission under
rule 42(1)(a):
[11.1] the rule must be understood against its common
law background;
[11.2] the basic principle at common law is that once
a judgment has been granted, the judge becomes
functus officio, but subject to certain exceptions of
which Rule 42 (1)(a) is one;
[11.3] the rule caters for a mistake in the proceedings;
[11.4] the mistake may either be one which appears on
the record of proceedings or one which
subsequently becomes apparent from the
information made available in an application in an
application for rescission of judgment;
[11.5] a judgment cannot be said to have been granted
erroneously in the light of a subsequently
disclosed defence which was not known or raised
at the time of default judgment;
[11.6] the error may arise either in the process of
seeking the judgment on the part of the applicant
for judgment or in the process of granting default
judgment on the part of the court; and
[11.7] the applicant for rescission is not required to
show, over and above the error, that there is good
cause for the rescission as contemplated in
rule 31(2)(b).”
51.The Constitutional Court decision of 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) (17 September 2021) at paragraphs [56] up to and including
[61] which deals with whether an order is granted in the absence of
a party or not, for purposes of Rule 42. It is imperative to note that
the same line of reasoning will be applicable to a common law
rescission, as well. It was stated that:
‘[56] Mr Zuma alleges that this Court granted the order in his
absence as he did not participate in the contempt
proceedings. This cannot be disputed: Mr Zuma did not
participate in the proceedings and was physically absent
both when the matter was heard and when judgment
was handed down. However, the words “granted in the
absence of any party affected thereby”, as they exist in
rule 42(1)(a), exist to protect litigants whose presence
was precluded, not those whose absence was elected.
Those words do not create a ground of rescission for
litigants who, afforded procedurally regular judicial
process, opt to be absent.
[57] At the outset, when dealing with the “absence ground”,
the nuanced but important distinction between the two
requirements of rule 42(1)(a) must be understood. A
party must be absent, and an error must have been
committed by the court. At times the party’s absence
may be what leads to the error being committed.
Naturally, this might occur because the absent party will
not be able to provide certain relevant information
which would have an essential bearing on the court’s
decision and, without which, a court may reach a
conclusion that it would not have made but for the
absence of the information. This, however, is not to
conflate the two grounds which must be understood as
two separate requirements, even though one may give
rise to the other in certain circumstances. The case law
considered below will demonstrate this possibility.
[58] In Lodhi 2, for example, it was said that “where notice
of proceedings to a party is required and judgment is
granted against such party in his absence without notice
of the proceedings having been given to him, such
judgment is granted erroneously”.[22] And, precisely
because proper notice had not been given to the
affected party in Theron N.O.,[23] that Court found that
the orders granted in the applicants’ absence were
erroneously granted. In that case, the fact that the
applicant intended to appear at the hearing, but had not
been given effective notice of it, was relevant and
ultimately led to the Court committing a rescindable
error.
[59] Similarly, in Morudi,[24] this Court identified that the
main issue for determination was whether a procedural
irregularity had been committed when the order was
made. The concern arose because the High Court ought
to have, but did not, insist on the joinder of the
interested applicants and, by failing to do so, precluded
them from participating. It was because of this that this
Court concluded that the High Court could not have
validly granted the order without the applicants having
been joined or without ensuring that they would not be
prejudiced.[25] This Court concluded thus:
“[I]t must follow that when the High Court granted the
order sought to be rescinded without being prepared to
give audience to the applicants, it committed a
procedural irregularity. The Court effectively gagged
and prevented the attorney of the first three applicants
– and thus these applicants themselves – from
participating in the proceedings. This was no small
matter. It was a serious irregularity as it denied these
applicants their right of access to court.[26]
[60] Accordingly, this Court found that the irregularity
committed by the High Court, insofar as it prevented
the parties’ participation in the proceedings, satisfied
the requirement of an error in rule 42(1)(a), rendering
the order rescindable.[27] Whilst that matter correctly
emphasises the importance of a party’s presence, the
extent to which it emphasises actual presence must not
be mischaracterised. As I see it, the issue of presence
or absence has little to do with actual, or physical,
presence and everything to do with ensuring that proper
procedure is followed so that a party can be present,
and so that a party, in the event that they are precluded
from participating, physically or otherwise, may be
entitled to rescission in the event that an error is
committed.[28] I accept this. I do not, however, accept
that litigants can be allowed to butcher, of their own
will, judicial process which in all other respects has been
carried out with the utmost degree of regularity, only to
then, ipso facto (by that same act), plead the “absent
victim”. If everything turned on actual presence, it
would be entirely too easy for litigants to render void
every judgment and order ever to be granted, by
merely electing absentia (absence).
[61] The cases I have detailed above are markedly
distinct from that which is before us. We are not dealing
with a litigant who was excluded from proceedings, or
one who was not afforded a genuine opportunity to
participate on account of the proceedings being marred
by procedural irregularities. Mr. Zuma was given notice
of the contempt of court proceedings launched by the
Commission against him. He knew of the relief the
Commission sought. And he ought to have known that
that relief was well within the bounds of what this Court
was competent to grant if the crime of contempt of
court was established. Mr Zuma, having the requisite
notice and knowledge, elected not to participate.
Frankly, that he took issue with the Commission and its
profile is of no moment to a rescission application.
Recourse along other legal routes were available to him
in respect of those issues, as he himself acknowledges
in his papers in this application. Our jurisprudence is
clear: where a litigant, given notice of the case against
them and given sufficient opportunities to participate,
elects to be absent, this absence does not fall within the
scope of the requirement of rule 42(1)(a). And, it
certainly cannot have the effect of turning the order
granted in absentia, into one erroneously granted.[29 ] I
need say no more than this: Mr Zuma’s litigious tactics
cannot render him “absent” in the sense envisaged by
rule 42(1)(a). ’
52. In the present matter, the Applicant is in the same position, as
was the case in the Zuma matter quoted above . The Applicant and
its legal representatives deliberately decided not to appear in this
matter, on the day of the Default Judgement trial proceedings
notwithstanding notice to it and were therefore, by any definition, in
wilful default of appearance.
53. The Applicant can therefore not be described as “absent”, within
the definition of the word, in terms of Rule 42 , and was also not
absent, within the definition, on the day that their defence was
struck out, a year earlier.
54.The next requirement to be met as referred to in the Rule is
whether the order was erroneously sought or granted. In its
Founding Affidavit, in this respect the Applicant avers that at the
trial on Default Judgment the Respondent proceeded to trial without
exercising their duty to disclose all crucial information to the Court
which would have assisted the Court to come to a different and
fairer award to that which has been granted. In this respect the
Applicant alleges that the Respondent was in possession of the
Applicant’s Industrial Psychologist and Actuarial report, which
formed the basis for the Applicants loss of earnings calculations.
These reports however w as not presented before Mokose J and it is
on this basis that the Applicant contends that had it been , a
significantly different and lower award would in all likelihood have
been made by the Court .40
40 Founding Affidavit para 9. 024-10.
55. The Founding Affidavit further sets out that the Respondent
prior to the hearing date was requested to postpone the trial but
that it was not amenable to accede to this request. It is worth
mentioning that the allegations made hereinbefore is specifically
denied by the Respondent in its Opposing Affidavit.41
56. A judgment is erroneously granted if there existed at the time
of its issue a fact of which the court was unaware of which would
have precluded the granting of the judgment and would have
induced the court, if aware of it, not to grant the judgment.42
57. As already mentioned, the Applicant’s defence had been struck
out, a year earlier, than the order granted which the Applicant now
seeks to rescind. Absence such a defence , even if this Court was to
rescind the order of Mokose J, it would serve no purpose as the
Applicant would still not be before court.
58. This then begs the question, is it the order of Mokose J which
stands to be rescinded or indeed the order of Mogotsi AJ dated 25
October 2021, which struck out their defence , as absence a
defence, it would serve no purpose to rescind the order of Mokose J.
59.Consequently, this Court cannot conclude that the order of
Mokose J was erroneously granted.
41 Opposing Affidavit para 30 to 40 Caselines 024 -193.
Merits of the Application in terms of the common law.
60. An Applicant in order to succeed rescinding a judgment in terms
of the common law is required to show good cause, which entails:
60.1 The giving a reasonable explanation of its default;
60.2 The showing that its application is made bona fide; and
60.3 The showing that it has a bona fide defence to the
plaintiff's claim which prima facie has some prospect of
success.
61. In respect of the giving of a reasonable explanation for the
Applicant’s default, the Founding Affidavit is silent of a valid excuse
for the default . What is clear, is that the Applicant was aware of the
trial date, and that it was constantly kept abreast of the progress of
the matter as it proceeded . Furthermore, what the Applicant fails to
deal with, at all, is the fact that it had no right of appearance, on
the Default Judgment Trial date of 26 October 2022, in any event,
by virtue thereof that its defence had been struck out by court order
dated 25 October 2021.43
42 Occupiers, Berea v De Wet NO 2017 (5) SA 346 (CC) at 366E -367A.
43 See Caselines 024, sub -item 16, page 024 -173, paragraph 5.38, as
read together with Caselines 024, sub -items 60 and 61.
62. The effect of the striking out of a Defendant’s defence is trite
law. Default judgment is granted against the Defendant when the
defence is struck out. The court has the power to strike out the
defence and to give judgment for the Plaintiffs as if the action were
undefended. After the defence is struck out, the case is treated as
undefended. Where a defence is struck out the Defendant is placed
in the same position as if he had not defended. The striking out of
a defendant's defence is an extremely d rastic step which has the
consequence that the action goes forward to trial as an undefended
matter. A Defendant is placed in the same position as if he had not
defended the action ; his whole defence is struck out.
63. It was held in Motor Marine (Edms) Bpk v Thermotron 1985 (2)
SA 127 (SE) at 128 that:
“Once the defence has been struck out, in the present case in
terms of Rule of Court 21(6), the defendant is no longer
before the Court, and has no right of further appearance. His
defence, which includes his notice of appearance to defend,
and his plea have been struck out and no longer form portion
of the papers upon which the Court is required to adjudicate.”
64. A Defendant whose defence has been struck out can no more
proceed than a Plaintiff whose claim has been struck out. It is
absurd to suggest otherwise. The striking out of a Defendant’s
defence is the equivalent of the sanction envisaged for a Plaintiff
whose claim is struck out; as does appear from Rule 30A (non -
compliance with rules) where provision is made for the claim or
defence to be struck out as the case may be:
“Rule 30A(1): Where a party fails to comply with these
Rules or with a request made or notice
given pursuant thereto, any other party may
notify the defaulting party that he or she
intends, after the lapse of 10 days, to apply
for an order that such rule, notice or request
be complied with or that the claim or
defence be struck out.
“Rule 30A(2): Failing compliance within 10 days,
application may on notice be made to the
court and the court may make such order
thereon as to it seems meet.”
65. Consequently, there exists no basis upon which the Applicant
could claim to be entitled to participate in any way in the Default
Judgment T rial of 26 October 2022 . Its defence having been struck
out, the Applicant was in wilful default and the Respondent was
entitled to proceed without the involvement of the Defendant in the
proceedings on 26 October 2022.
66. As to the second requirement whether the Applicant has given a
valid explanation for its default, none has been given and therefore,
the Applicant also fails to have met the second requirement.
67. The next requirement to be met is whether the application is
made bona fide ? In this regard, Counsel for the Respondent
submitted that the application has not been made bona fide for the
following reasons :
67.1 The conduct of the Applicant from the outset of the action has
been nothing more than the emp loyment of delaying tactics to
try delay the finalisation of the action, as long as possible.44
The finalisation of the Respondent’s claim has been delayed
since August 2011.
67.2 The Applicant launched the present application, almost 5
months to the date, after the granting of the order by
Mokose J. This just before the time, when it would have had to
have made payment of the capital amount .
67.3 The Applicant despite, the order and the order of 4 November
2015 in respect of the section 17(4)(a) undertaking, has
44 See Caselines 024, sub -item 16, pages 024-164 up to and including
024-174, paragraphs 5. 1 up to and including 5. 546.
made no effort to provide the Respondent with the
undertaking aforesaid.45
67.4 In considering the bona fides of the application, it is also
essential to consider the deliberate obfuscations and
misleading and untruthful statements made in the Founding
Affidavit, which are pointed out in the Opposing Affidavit, and
are not disputed , nor can they be .46
68. The submissions advanced by Counsel on behalf of the
Respondent, this Court is in agreement with and it is for this reason
that this Court conclude that no bona fide defence has been
disclosed by the Applicant which has a prima facie prospect of
success to have this judgment taken against it rescinded.
45 See Caselines 024 sub-item 16, page 024-165, paragraph 5.9.
46 See Caselines 024, sub -item 2, paragraphs 7.3, as read together with
Caselines 024, sub -item 16, pages 024 -180 up to and including 024 -182,
paragraphs 16 up to and including 16.8. See Caselines 024, sub -item 2,
paragraph 8.6, as read together with Caselines 024, sub -item 16, pages
024-191 up to and including 024 -193, paragraphs 27 up to and including
27.5. See also Caselines 024, sub -item 2, paragraph 9.3, as read together
with Caselines 024, sub -item 16, page 024 -195 to 024 -197, paragraphs
32 up to and including 32.6. See Caselines 024, sub -item 2, paragraphs
9.7, as read with Caselines 024, sub -item 16, pages 024 -202 up to and
including 024 -203, paragraphs 36 up to and including 36.6. See Caselines
024, sub -item 2, paragraph 9.10, as read together with Caselines 024,
sub-item 16, pages 024 -205 up to and including 024 -206, paragraphs 39
up to and including 39.4. See also Caselines 024, sub -item 2, paragraph
9.11, as read together with Caselines 024, sub -item 16, pages 024 -206
and 024 -207, paragraphs 40 up to and including 40.5. See also Caselines
024, sub -item 2, paragraph 10.2, as read together with Caselines 024,
sub-item 16, pages 024 -209 to 024 -210, paragraphs 43 up to and
including 43.3.
69. Consequently, even in terms of the common law the application
cannot succeed.
Costs
70. On behalf of the Respondent the argument was advanced that
this Court should show its rebuke against the conduct of the
Applicant, by awarding costs on a punitive scale in the event of the
application being unsuccessful and that such costs should include
the costs of two counsel.
71. In support of this contention, the Respondent relied on the
decision Public Protector v South African Reserve Bank 2019 (6) SA
253 (CC) where at para 8 it was noted that “[c]osts on an attorney
and client scale are to be awarded where there is fraudulent,
dishonest, vexatious conduct and conduct that amounts to an abuse
of court process.” Khampepe J and Theron J further noted that “a
punitive costs order is justified where the conduct concerned is
“extraordinary” and worthy of a court’s rebuke” .
72. In the present matter, the deponent to the Founding Affidavit
has deliberately made allegations, importing that the conduct of the
Respondent’s legal representatives was dishonest and unethical,
which allegations have been shown to be devoid of any substance.
73. In addition, t he Applicant has also clearly delayed the
finalisation of the matter unnecessarily, by its conduct, as can be
seen clearly from the background to the matter, and the manner in
which the present application has been conducted.
74. For the above reasons Counsel for the Respondent had
submitted that the Applicant should be ordered to pay costs on the
scale as attorney and client, as a result of the aforesaid, to show
the Court’s displeasure with conduct of this nature .
75. Given the consp ectus of what has been set out above in relation
to costs, I am persuaded in exercising my discretion that costs on a
punitive scale is warrant ed given the recalcitrant behaviour
displayed by the Applicant, but that costs of two counsel would not
be warranted in the circumstances.
ORDER
76. In the result the following order is made:
76.1 The Application for Condonation is refused.
76.2 The Applica tion is dismissed .
76.3 The Applicant is to pay the costs of the application, including
the costs of the opposed hearing dates of 31 July and 14 August
2024, on the scale as between attorney and client.
76.4 The aforesaid costs shall include the costs of only one counsel.
~
C. COLLIS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
APPEARANCES:
Attorney for the Applicant: Mr. Makgoka
Instructed By: Office of the State Attorney, Pretoria
Counsel for the Respondents: Adv. C M Dredge
Instructed By:
Date of Hearing:
Date of Judgment: Adv. L Botha
Gert Nel Attorneys
14 August 2024
19 May 2025