SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024- 010120
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
In the rescission application between:
MAKGOLELA LILLIAN MOKGALAKANE (Identity Number: 7[ …]) Applicant
and
LOMBARDY HOME OWNERS ASSOCIATION NPC t/a
LOMBARDY HOME OWNERS ASSOCIATION Respondent
In re the main action between:
LOMBARDY HOME OWNERS ASSOCIATION NPC t/a
LOMBARDY HOME OWNERS ASSOCIATION
(Registration Number: 2007/013652/08) Plaintiff
and
MAKGOLELA LILLIAN MOKGALAKA NE
(Identity Number: 7 […]) First Defendant
MAKGOLELA KINGSLEY
(Identity Number: 7 […]) Second Defendant
ORDER
1. The application for rescission is dismissed.
2. The applicant is to pay the costs on the attorney and client scale.
JUDGEMENT
INTRODUCTION
[1] This is an application for rescission of a default judgement in terms of
Rule 42(1)(a). The default judgement was granted in the main action in favour
of the plaintiff. The applicant in the rescission application is the first defendant in the main action. The second defendant has not been joined as a party in the rescission application.
[2] The applicant applies for the rescission of the default judgement
which was granted on 14 March 2024.
[3] The respondent opposes this application on various grounds, which
includes that the applicant has not made out a case that the default judgement was sought or granted erroneously in the absence of the two defendants, as provided for in Rule 42(1)(a).
[4] The respondent raised various defences which were referred to as
points -in-limine . The defences in fact addressed various defects in the
application and will be dealt with below.
RELEVANT BACKGROUND FACTS
[5] The plaintiff in the main action is the home owners association of a
residential estate where the first and second defendants reside and where they have chosen their domicilium for purposes of their dealings with the plaintiff.
[6] On 1 February 2024 the plaintiff issued summons against the two
defendants for payment of an amount of R 333 294-39 plus interest and costs.
[7] The summons was served on the defendants’ domicilium address on
7 February 2024. The defendants were aware of service of the summons as the applicant annexed the return of service to her application for recission. [8] The applicant alleges that she entered a notice to defend the action
on 7 March 2024. This is not correct as the evidence of the respondent is that the notice of intention to defend the action was served on the respondent ’s
attorneys, but it was never “delivered” on the same day. “Deliver” is defined in Rule 1 as to “serve copies on all parties and file the original with the registrar”. Rule 19(1)(a) requires that such notice be delivered in accordance with the said definition.
[9] Since the Court Online platform came into use, the registrar’s original
of any document has to be uploaded on Court Online.
1 It is common cause that
the applicant’s notice of intention to defend was only “delivered”, by filing thereof on the Court Online system, on 5 April 2024
2, despite the fact that her
attorneys have had access thereto since 7 March 2024 when the attorneys for
the respondent invited the applicant’s attorneys to Court Online.
[10] After service of the summons on the defendants, the dies induci ae
expired on 21 February 2024. Having not received a notice of intention to
1 Consolidated Practice Directive 1 of 2024, section 6.2, read with section 6.7.
2 Caselines 02 -275 to 02- 278.
defend by that date, the respondent lodged an application for default judgement
with the registrar on 22 February 2024.3
[11] The registrar allocated a hearing date for the application for default
judgement on 6 March 2024, which hearing would take place on 7 March 2024.
[12] On 7 March 2024 the applicant served the notice of intention to
defend on the respondent , but i t was not filed with the registrar by uploading
onto Court Online as already set out.
[13] Judgement by default was granted on 14 March 2024.
4
APPLICATION FOR RESCISSION [14] On 5 Aril 2024 the applicant served the application for rescission of
the judgement, which was granted on 14 March 2024, by electronic mail on the
respondent. She relied only on Rule 42(1)(a) which provides that the court can rescind or var y any judgement granted by it if such order or judgement was
erroneously sought or granted in the absence of any party affected thereby. The applicant became aware of the judgement upon presentation thereof to her
attorneys of record on 15 March 2024.
[15] In dealing with the reasons for the default, the applicant admits that
her attorneys made a mistake by not uploading the notice of intention to defend
on the Court Online system.
5 She states that the uploading of the notice of
intention to defend would have prevented the registrar from granting the order, according to the advice of her legal representatives.
6
[16] The explanation for the default to deliver timeous notice of intention to
defend by the applicant is not acceptable. If the notice of intention to defend
3 Caselines 02 -41, para 35.3.
4 Caselines 02 -19 to 02- 21.
5 Caselines 02 -10, para 5.1.
6 Caselines, 02 -10, para 5.2.
was uploaded onto Court Online on 7 March 2024, when it was served on the
respondent, the registrar would have taken note thereof. As it was only
uploaded after judgement was granted, the registrar granted default judgement
correctly.
[17] The applicant argued that the respondent’s attorneys had a legal duty
to bring to the attention of the registrar that the action had been defended and
they had to withdraw the application for default judgement.
7 No authority was
relied upon for these submissions. They are in any event not tenable in view
thereof that the applicant’s attorneys made a mistake by not “delivering” the
notice as envisaged in the definition of “delivery” in Rule 1 and in accordance
with Rule 19(1)(a) .
[18] The applicant also submitted in her founding affidavit that once the
notice of intention to defend was served, the respondent lacked the “jurisdictional requirements” ( sic) to proceed with the default judgement and the
registrar lacked the “ jurisdictional requirements ” (sic ) to grant default
judgement. These submissions were repeated in the applicant’s heads of argument,
8 but no authority was cited for the submissions. These submissions
are legally untenable and seems to be based on an incorrect understanding of what a jurisdictional fact is.
9
[19] To establish the allegation of an error on the part of the registrar, the
applicant’s case is that once the file is allocated to the Registrar for
adjudication, the filing/uploading of the notice of intention to defend would not have formed part of the file before the Registrar. This submission is clearly wrong. The documents uploaded onto the court Online system would have included such notice, had it been filed or uploaded timeously viz on 7 March
2024. The registrar committed no error as the notice was only uploaded after judgement was granted.
7 Caselines, 02 -11, para 5.3.
8 Caselines 19 -21, para 3.4.
9 See: Hoexter & Penfold, Administrative Law in South Africa (3ed) , p402- p403 and
the reference hereunder to the Lodhi -2-judgement.
[20] Having based the application for rescission on only one ground, the
applicant argued that it was not necessary for her to show, over and above the error, that there is good cause for the rescission. These are the absence of wilful default and the existence of a bona fide defence. No evidence was
presented in this regard by the applicant and these aspects can therefore not
be considered.
[21] The applicant also did not file a replying affidavit. The respondent’s
answering affidavit therefor stands uncontested.
RESPONDENT’S CASE
[22] The respondent raised a number of defences, the first of which was
that the applicant failed to serve the application for rescission, which is an
application “initiating proceedings” as s et out in Rule 4(1)(a), by the Sheriff.
Reliance for this point of opposition was based on the Okafor
10-judgement by
Crutchfield J. In this judgement it was held that a failure to serve a rescission
application by sheriff is fatal to the rescission application, as a notice of motion
is a “document initiating application proceedings.”
[23] I am not convinced that the said judgement is flawed or erroneous
and it is therefore authority that the application for rescission in this matter is fatally flawed, having only been served on the respondent’s attorneys by
electronic mail.
[24] I will, nevertheless, deal with the other important submissions of the
respondent that the judgement was not erroneously sought or erroneously granted.
10 Gabriel Nwanne Okafor v Jan van den Bos, Case No.: 2020/28938, Unreported,
paras [12] -[17].
[25] It is clear on the undisputed facts that the registrar did not err when
the judgement was granted as the notice of intention was only uploaded on
Court Online 13 days after the judgement was granted, on 5 April 2024. This was when the delivery requirement was met.
11
[26] The next question is whether the default judgement was erroneously
sought. Taking into account the chronology of the facts in the matter as set out
above, the respondent was procedurally entitled to judgement when it applied
for it and therefore it cannot be said that judgement was sought and granted
erroneously.12 Or, otherwise stated, was the party who obtained the order,
procedurally entitled thereto. The respondent was entitled to default judgement
on 14 March 2024 when it was granted.
[27] The applicant has therefore not made out a case for rescission in
terms of Rule 42(1)(a) and the application stands to be dismissed.
COSTS [28] In terms of the memorandum of incorporation of the respondent it is
entitled to attorney and client costs in proceedings against its members who are
liable to the respondent for levies, consumption charges and ancillary amounts due. The respondent is a non- profit company who is reliant on its members to
pay their dues and the compliant members should not have to “subsidise” the applicant while she enjoys the benefits of membership.
13
[29] There respondent is therefore entitled to its costs on an attorney and
client scale. It has presented a strong argument that the applicant’s attorneys
should pay the costs de bonis propri is due to their gross misconduct and failure
to properly represent their client. In exercising its discretion as to costs de bonis
propri is, it has been taken into account that the applicant refers in her founding
11 Wahl v Pri nswill Be leggings (Edms) Bpk [1984] 1 All SA 24 (T) at pages 28 and 29.
12 Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6) SA
87 (SCA) at 94 E and at 95 D -F; Freedom Stationery (Pty) Ltd v Hassam 2019 (4) SA
459 (SCA) at 465 G -H and 467 G -H.
13 Caselines 19 -73.
affidavit to insurance by Hollard. I leave it up to the applicant to take steps
against her attorneys as she has a remedy to pursue. The argument that the
judgement was allegedly erroneously granted is solely premised upon the applicant’s attorneys’ failure to timeously deliver a notice of intention to defend
as stipulated by Rule 19(1)(a) .
THE ORDER
[30] Accordingly, I make the order as set out above.
LM du Plessis
Acting Judge of the High Court
Gauteng Division
Johannesburg
APPEARANCES
For the applicant: K Ralikhuvana
(Heads of Argument by V Nyokane)
Attorneys: Katlego Ralikhuvhana Mokgola Inc.
For the respondent: Adv Robin Smith
Attorneys: Schűler Heerschop Pienaar Inc.
Date of Hearing: 21 January 2025
Date of Judgement: 20 May 2025