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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case Number: 211512021
In the matter between:
CHRISTO BRIEDENHANN APPELLANT
and
YUMNAH NORDIEN N.O. RESPONDENT
Heard on
Delivered on :
Coram
Summary 14 April 2025
6 June 2025
Nxumalo J, Stanton Jet Olivier AJ
Appeal -rescission of default judgment -legal principle confirmed -
court a quo applying too strict a test when deciding whether or not
to grant an application for rescission of default judgment granted by
registrar -appeal succeeds.
ORDER
In the result, the following order is made:
1. The appeal succeeds with costs which costs include only the costs of the
appeal and exclude the costs of the application for rescission and the
application for leave to appeal;
2. The default judgment granted under case number 2115/2021 on 10 May 2022
is rescinded and set aside and is substituted with the following order: 2
2.1 That leave is granted to the appellant (the defendant in the action) to
defend the action instituted by the respondent (as plaintiff in the action)
under the above case number;
2.2 That the appellant is to deliver his plea, with or without counterclaim ,
within 20 (twenty) court days from date of this order;
2.3 That, in as far as the application for rescission as well as the
application for leave to appeal are concerned , each party is to pay
his/her own costs; and
2.4 That all of the above costs (the costs in the appeal as well as the costs
in the applications for rescission and leave to appeal) are to be paid on
a scale as between party and party and in terms of scale "B" as
referred to in Rule 69(7) read with Rule 67A(3) of the Uniform Rules of
Court.
JUDGMENT ON APPEAL
Olivier AJ
INTRODUCTION:
1. This is an appeal against the judgment and order of Tyuthuza AJ of 4 August
2023, the appellant having been granted leave to appeal the afore-said
judgment and order on 26 April 2024. 3
2. The appellant is CHRISTO BRIEDENHANN a businessman from Postmasburg ,
Northern Cape Province.
3. The respondent is YUMNAH NORDIEN a major female, acting herein in her
capacity as the duly appointed executrix in the estate of the late Hans Petrus
Hansen who has passed away on 20 January 2019 (herein after referred to as
"the Deceased'').
BACKGROUND:
4. The respondent (as plaintiff at the time) issued summons against the appellant
out of the Northern Cape High Court on 13 October 2021.
5. It was not in dispute that the combined summons was served on the appellant
personally on 20 October 2021 and that the appellant failed to enter an
appearance to defend the action, which eventually lead to default judgment
being granted against the appellant on 10 May 2022 by the registrar of the
Northern Cape High Court.
6. The appellant lodged an application for the rescission of the afore-said default
judgment on 4 October 2022 ("the Rescission Application") which became
opposed and which was, subsequent to the filing of all of the relevant papers,
heard by the learned Ms. Tyuthuza AJ on 28 April 2023. 4
7. Tyuthuza AJ dismissed the Rescission Application with costs on 4 August 2023
which prompted the appellant to lodge an application for leave to appeal the
judgment to dismiss the Rescission Application.
8. Leave to appeal the afore-said judgment to dismiss the Rescission Application
was granted on 26 April 2024, the required notice to appeal was filed on 27
May 2024 and the appeal was eventually set down before us on 14 April 2025
for argument and determination.
9. The initial claim by the respondent against the appellant was premised on:
9.1 A written document termed "ADDENDUM TOT SAMEWERKING EN
ONTBINDINGSOOREENKOMS" which was concluded between the
Deceased and inter alia the appellant on 15 July 2015 {herein after
referred to as "the Addendum") in terms whereof the appellant was
obliged to repay an amount of R 861 555, 72 (Eight Hundred and Sixty
One Thousand, Five Hundred and Fifty-Five Rand, Seventy-Two Cent)
to the Deceased; and
9.2 The appellant's failure to effect payment in terms of the Addendum.
10. The afore-said amount of R 861 555,72 (Eight Hundred and Sixty-One
Thousand, Five Hundred and Fifty-Five Rand, Seventy-Two Cent) (herein after
"the Claim Amount') plus interest thereon and costs were claimed by the
5
respondent and judgment by default was granted in these terms by the registrar
of this court on 10 May 2022.
THE RESCISSION APPLICATION:
11 . I do not intend to deal with the respective parties' contentions in the Rescission
Application in any sort of detail and will confine myself to those matters and
arguments that I deem relevant for purposes hereof, as is set out below.
12. The appellant, after giving a rather lengthy explanation for his default in
defending the action brought by the respondent , contended that he had several
bona tide defences to the respondent's claim, which may be summarised as
follows 1:
12.1 That the Addendum did not constitute the entire true agreement
between the parties as it was incorporated to a main agreement and
that he (the appellant) would only be able to consider all of his rights of
defence once he has been provided with a copy of the main agreement
and further that he would only be able to obtain such main agreement
if he was afforded the opportunity to defend the action;
12.2 That the Addendum constituted a credit agreement in terms of the
provisions of the National Credit Act2 (herein after "the NCA") and that
the Addendum was an unlawful agreement by virtue of the fact that the
Deceased was not registered as a credit provider at the time of the
conclusion of the Addendum as is required by the NCA; and
This is a summary of only those defences that were raised that are deemed-relevant for purposes
hereof and does not constitute a summary of all of the defences that were in fact raised by the
Appellant in the Rescission Application.
The National Credit Act, Act 34 of 2005.
6
12.3 That he (the appellant) entered into a verbal agreement with the
Deceased during or about October 2018 (in other words subsequent to
the conclusion of the Addendum) in terms whereof it was agreed that
payment of the claim amount may be paid to the Deceased partly in
cash and partly in kind and that he (the appellant) did in fact make
payment in kind to the Deceased in the total amount of R 632 000,00
(Six Hundred and Thirty-Two Thousand Rand) by way of delivering
livestock to the Deceased (herein after referred to as "the Partial
Payment Defence").
13. During argument in the Rescission Application , a point in limine was raised on
behalf of the appellant to the effect that the summons had become stale at the
time that the application for default judgment was made and that, in terms of
the practice directives of this Division, the respondent essentially had to serve a
notice of set down on the appellant. I will henceforth refer to the above
argument simply as "the Stale Summons Argument '.
14. It was argued that, if the notice of set down was in fact served on the appellant ,
the appellant would most likely have entered an appearance to defend the
action.
15. After hearing argument from counsel for both parties, the court a quo dismissed
the Rescission Application and in summary held as follows:
15.1 That the Stale Summons Argument did not hold any water;
15.2 That the appellant failed to give a reasonable and satisfactory
explanation for his default in defending the action; and
15.3 That none of the defences raised by the appellant, constituted a bona
tide defence to the claim by the respondent.
7
16. The Rescission Application was consequently dismissed with costs.
THE APPLICATION FOR LEAVE TO APPEAL:
3 17. In his application for leave to appeal, the appellant essentially averred that the
court a quo erred and/or misdirected itself in the following respects:
17.1 By failing to find that the default judgment was erroneously sought and
granted in the absence of the appellant by virtue of the fact that the
summons had become stale and by virtue of the failure by the
respondent to serve a notice of set down on the appellant in
accordance with the rule of practice in the Northern Cape Division;
17.2 By failing to find that the appellant's defence of partial payment of the
amount claimed by the respondent constituted a bona tide defence to
the claim; and
17.3 By failing to find that the appellant had provided a reasonable and
satisfactory explanation for his default.
18. Argument during the application for leave to appeal was therefore confined only
to the Stale Summons Argument , the Partial Payment Defence and to the
question as to whether the appellant had provided a reasonable and
satisfactory explanation for his default in defending the action.3
19. In her judgment on the application for leave to appeal, Tyuthuza AJ found that
the Stale Summons Argument had no merit and that she was still not
The reason why the application for leave to appeal proceeded only on these three grounds does
not appear from the judgment and is unknown to us. It however has no bearing on the appeal
itself.
persuaded that the appellant had given a reasonable and satisfactory
explanation for his default in defending the action.
20. However, on the issue of the Partial Payment Defence, it was held as follows: 8
"Despite not being satisfied that the applicant has proffered a reasonable and
acceptabf e explanation for the default, having considered the application as a whole
and the applicant's defence, I am of the considered view that the applicant 's case may
constitute a defence insofar as the applicant disputes the amount owed to the
deceased. It is sufficient that in his evidence he shows a prima facie case which raised
triabf e issues."
21. The following order was consequently made:
"1. Leave to appeal is granted to the full court of this Division against the judgment and
order of 4 August 2023.
2. Costs of the application for leave to appeal are costs in the appeal."
THE ISSUES FOR DETERMINATION ON APPEAL:
22. The appellant, based on the alleged open-endedness of the above order made
by Tyuthuza AJ in the application for leave to appeal, deemed it prudent to
approach this court on appeal on, what appear to be, exactly the same three
grounds that served before the learned Tyuthuza AJ in the application for leave
to appeal namely that:
22.1 Default judgment against the appellant was erroneously granted in the
absence of the appellant by virtue of the non-compliance with the rules
of practice in this division;
4
5
6
7 22.2 The appellant has in fact provided a reasonable and acceptable
explanation for his default in entering an appearance to defend the
action by the respondent; and
22.3 The appellant has in fact set forth a bona fide defence to the claim of
the respondent. 9
23. Mr. Olivier who appeared for the respondent, took umbrage with the above and
argued that it was clear from the judgment in the application for leave to appeal
that the court deemed the Stale Summons Argument and the appellant's
explanation for his default to have no merit and that leave to appeal was
granted on only the question as to whether the appellant did in fact set forth a
bona fide defence to the claim by the respondent.
24. Mr. Olivier relied primarily on the decision in Harlech-Jones Treasure Architects
CC and Others v University of Fort Hare4 where Kroon J inter alia held that a
25. full court of a provincial division is not empowered to entertain grounds of
appeal of which leave to appeal was refused5 and the learned Judge
specifically held as follows:
" ... where leave to appeal is granted on specified grounds, it means no more and no
less than that those are the only grounds that can be invoked on appeal ... but that no
other grounds may be raised; leave to appeal on any further grounds must be taken to
have been impliedly refused."6 (My omissions) .
Mr. Olivier, with reference to Minister of Safety and Security and Others v
Mohamed and Another7 further argued that, if the appellant wished to argue all
Harlech-Jones Treasure Architects CC and Others v University of Fort Hare 2002 (5) SA 32
(ECD).
Harlech-Jones, supra at 52A.
Harlech-Jones, supra at 53I-J.
Minister of Safety and Security and Others v Mohamed and Another [2012) 1 All SA 35 (SCA),
para 17.
of the above-mentioned grounds on appeal again, leave from the Supreme
Court of Appeal would have been necessary in order to do so. 10
26. Mr. Eillert who appeared for the appellant, to his credit, did not argue this issue
too vigorously and in fact merely emphasized the fact that the order of
Tyuthuza AJ in the application for leave to appeal was not very specific.
27. Although I agree with Mr. Eillert's above contention, I hold the view that if the
whole of the judgment in the application for leave to appeal is properly
considered, it is clear that leave to appeal was in fact only granted on the
question as to whether the Partial Payment Defence raised a bona fide
defence.
28. Based on the above and specifically based on the authorities cited on behalf of
the respondent, argument in the appeal was therefore allowed only on the
question whether the Partial Payment Defence constituted a bona fide defence
in order to stave off summary judgment and whether the court a quo erred in
not finding as such and this court is therefore tasked with deciding whether the
Rescission Application should have in fact have succeeded on this ground
alone.
THE PARTIAL PAYMENT DEFENCE:
29. The Partial Payment defence, as set out in the appellant's founding affidavit in
the Rescission Application , may be summarized as follows:
29.1 Subsequent to the conclusion of the Addendum and specifically during
or about October 2018, the appellant entered into a verbal agreement
with the Deceased to the effect that the repayment of the Claim
Amount may be made partly in cash and partly in kind;
29.2 The appellant made payment in kind to the Deceased in the total
amount of R 632 000,00 (Six Hundred and Thirty-Two Thousand
Rand) by way of delivering livestock to this value to the Deceased on
26 and 29 October 2018; 11
29.3 The Deceased accepted the delivery of the livestock as part repayment
of the claim amount owed to him by the appellant and also accepted
that such indebtedness would in fact be reduced by these payments
made in kind;
29.4 In light of the fact that the appellant and the Deceased were good
friends at the time, the appellant never requested any proof of receipt
of payments (whether in cash or in kind) from the Deceased, but that
he recorded such payments in writing for his own purposes which
confirmation of payments were kept in his safe; and
29.5 In light of the fact that payment in kind was made to the Deceased in
an amount equal to R 632 000,00 (Six Hundred and Thirty-Two
Thousand Rand), the appellant does not owe the Deceased , and for
that matter the respondent , the total of the Claim Amount, but rather an
amount of only R 229 555,75 (Two Hundred and Twenty-Nine
Thousand, Five Hundred and Fifty-Five Rand, Seventy-Five Cent),
which amount the appellant will pay to the respondent as soon as
possible.
30. In support of the Partial Payment Defence and more specifically in support of
the appellant's averments pertaining to the payments that were made to the
Deceased in kind, the appellant relied on copies of what he called his delivery
book which copies were attached to the appellant's founding affidavit as
annexure "C1" to "C3".
31. It is common cause that these annexures comprise of entries made by the
appellant of the purported delivery of livestock to the Deceased for the
appellant's own purposes and that these entries/extracts do not contain any
form of proof of receipt of the livestock by the Deceased. 12
32. Counsel for the respective parties presented long arguments on the question
whether these annexures bore any evidentiary value and whether it was worth
the paper it was written on or not but, for the reasons set out below, these
arguments are not relevant for purposes hereof.
33. It now stands to be decided whether the above sets out a bona fide defence to
the respondent's claim and whether the court a quo erred in finding differently .
DISCUSSION:
34. In his notice of appeal, the appellant alleges as follows:
"(6] ... Furthermore , it ought to have been found that the Applicant 's (sic) defence,
particularly that of partial payment, carries reasonable or good prospects of success
and that therefore, even though the Appellant's explanation for default might be lacking
in some respects, the rescission of the default judgment ought to have been granted.
[7] That the honourable Ms Acting Justice Tyuthuza ought to have applied the test set
forth in Grant v Plumbers 1949 (2) SA 470 (0) at p 476 in assessing whether the
Appellant had shown a bona fide defence, namely that '(l)t is sufficient if he makes out
a prima facie defence in the sense of setting out averments which, if established that
(sic) the trial, would entitle him to the relief asked for. He need not deal fully with the
merits of the case and produce evidence that the probabilit ies are actually in his
favour.'
{8] Had the honourable Ms Acting Justice Tyuthuza applied the correct test set forth in
Grant v Plumbers , and had the honourable Acting Justice considered the Appellant 's
9
10 explanation for his default in the light of the Appellant's defence of partial payment,
and all the facts and circumstances of the case as a whole, the honourable Acting
Justice would have found that the Appellant had indeed shown good or sufficient
cause for rescission of the default judgment."
35. It is prudent to start off by stating that in the present matter, default judgment
was granted against the appellant by the registrar of the Northern Cape High
Court in terms of, presumably, the provisions of Rule 31(5)(a) read with Rule
31(5)(b) of the Uniform Rules of Court (herein after referred to as "the Rules")
which means that the provisions of Rule 31 (5)(d) would find application. 13
36. Rule 31(5)(d) of the Rules provides that any party who is dissatisfied with
default judgment being granted against such party by the registrar, may set the
matter down for reconsideration by the court.
37. It seems to be generally accepted that where a defendant in an action sets a
default judgment down for reconsideration by the court in terms of the
provisions of Rule 31 (5)(d) of the Rules, the court may set aside such default
judgment in terms of the common law8 or in terms of its inherent jurisdiction.9
38. It is however trite that, even in instances where a defendant relies on the
common law or on the court's inherent jurisdiction to set aside a default
judgment granted by the registrar, such defendant is still required to show good
cause for the setting aside of the default judgment.10
39. It is common cause that, in order to show the existence of "good cause" a
defendant needs to comply with the following three requirements:
See De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1042F-H. Also see
Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764I-765B.
See for example Naidoo v Cavendish Transport Co (Ply) Ltd 1956 (3) SA 244 (D) at 247F-H.
See Chetty, supra as well as Naidoo, supra.
11
12
13 39.1 He must give a reasonable explanation for his default;
39.2 His application for reconsideration must be made bona fide and not
with the intention of merely delaying the claim by the plaintiff; and
39.3 He must show that he has a bona fide defence to the claim by the
plaintiff.11
40. In Pansolutions Holdings Ltd v P&G General Dealers & Repairers CC12 it was
held as follows: 14
"When a rescission of a default judgment granted by the registrar is to be reconsidered
in terms of rule 31(5)(d), the underlying need for the grant of such a power is equally
the absence of the aggrieved party, at the time the judgment was granted. The object
is equally to obtain redress against an injustice, or an imbalance created by the
judgment. "13
41. The same court then held that any court tasked with deciding whether or not to
rescind default judgment granted by the registrar, has the power to substitute
its discretion for that of the registrar and stated as follows:
"I am fortified in this view by the self-evident fact that at the stage when the court is
asked to reconsider a default judgment granted by the registrar, it will have before it
the contentions of the aggrieved party, which in the nature of things, the registrar
would have been ignorant of. The registrar may not have erred in granting judgment ,
on the information available to him at the time, but in the light of the further information
See inter alia Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (0) at 476, HOS Construction (Pty)
Ltd v Wait 1979 (2) SA 298 (E) at 300G, Wahl v Prinswil Beleggings (Edms) Bpk 1984 (1) SA 457
(TPA) at 461 F-G and more recently Minister of Police v Lu/wane [2023] JOL 59222 (ECM}, par
46.
Pansolutions Holdings Ltd v P&G General Dealers & Repairers CC 2011 (5) SA 608 (KZD).
Pansolutions Holdings Ltd, supra at 610F-G.
14
15 15
available to the court at the time of reconsideration of the judgment, it may be apparent
that the judgment cannot stand."14
42. The court a quo, after having considered all of the papers filed in the action as
well as in the Rescission Application and after having had insight into facts that
the registrar would not have been privy to 15, decided to exercise its discretion in
favour of the respondent when it held that the Partial Payment Defence cannot
succeed.
43. It is apposite at this point to refer to the reasoning of the court a quo in making
the above finding as set out in the judgment in the Rescission Application . The
court a quo held as follows:
"55. I find it difficult to reconcile that partial or any payment was made by the applicant
as alleged, for one surely this aspect should have been disclosed as far back as
October 2021 when the applicant and the respondent's attorneys started having
discussion , instead the applicant waited until the rescission application to bring this
aspect to the attention of the respondent, whilst he had been in possession of the
extracts from his delivery book wherein he alleges to have recorded each payment.
56. Furthermore, annexures C1 to C3 do not assist the applicant's case, these are by
no means evidence that payment was accepted or received by the deceased.
57. What makes it harder to believe is the fact that in his founding affidavit the
applicant alleges that him and the deceased were good friends and as a result, he
never requested any proof of receipt of payments made to the deceased , whilst in his
replying affidavit, the applicant avers that the termination/unbundling of the business
was done as a result of the fact that the deceased had become the subject of an
internal fraud investigation at SOIC, and the applicant no longer wanted to be
associated with the deceased and only wanted to be doing business with honourable
people.
Pansolutions Holdings Ltd, supra at 610H✓.
Reference is made to the facts contained in the appellant's founding and replying papers.
16
17
18 16
58. Despite the applicant's version regarding why the business was terminated, the
applicant allegedly entered into an oral agreement with the deceased in October 2018,
and allegedly made certain payments to the deceased but failed to request any proof
of receipt of payments. In find this highly unlikely in light of the fact that the applicant
himself stated that he no longer wanted to be associated with the deceased and did
not see/view the deceased as an honourable person, surely then he would have
requested proof of payment when dealing with such a person.
59. I find the applicant's version in regard to the partial payment untenable and
farfetched. I am of the view that if the applicant made partial payment as alleged. the
applicant would have disclosed same to the respondent's attorneys during their first
discussions in October 2020 and not have waited until the filing of this application to
disclose same.
60. On this basis, I find that the applicant's defence cannot succeed as I am not
persuaded that this is a bona fide defence to the claim."
44. Mr. Eillert primarily relied on Grant v Plumbers (Pty) Ltd16 where the court, with
reference to Brown v Chapman17 held that, in as far as a bona fide defence is
concerned, it would suffice if a defendant" ... makes out a prima facie defence in
the sense of setting out averments which, if established at the trial, would entitle him to
the relief asked for. He need not deal fully with the merits of the case and produce
evidence that the probabilities are actually in his favour."18
45. Mr. Eillert argued that the court a quo erred in weighing up the merits of the
matter and also erred in making findings on credibility and that the court a quo,
in doing so, applied too strict a test in deciding whether good cause was shown
Grant v Plumbers , 1949 (2) SA 470 (0).
Brown v Chapman, 1938 TPD 320.
Grant v Plumbers, supra at 477. Also see Van Aswegen v Kruger 1974 (3) SA 204 (0) at
206E-F, Federated Timbers Ltd v Bosman NO and Others 1990 (3) SA 149 (W) at 155G-156A ;
158B and Lu/wane, supra.
19
20
21 by the appellant and that this court should find that the court a quo erred in
applying such a strict test. 17
46. Mr. Olivier on the other hand argued that the discretion that was exercised by
the court a quo was a discretion in the true sense and that this court may only
interfere with this discretion under certain circumstances. I agree with these
contentions made by Mr. Olivier.19
47. In Mathale v Linda and Another2°, a matter that we were referred to by Mr.
Olivier, the Constitutional Court held that the circumstances in which an
Appellate Court may interfere with a discretion exercised by a lower court
include instances where such lower court has " ... exercised its discretion in a non
judicial manner; applied the wrong principles of law; misdirected itself on the facts; or
reached a decision that could not have reasonably been reached by a court that has
properly appraised itself with the relevant facts and legal principles . "21
48. Mr. Olivier further argued that the above principles do not find application in the
present matter and that the appellant did not manage to convince this court that
the court a quo reached a decision that could not reasonably have been
reached by a court that has properly appraised itself of the relevant facts and
legal principles . In light of the trite and current legal position, I do not agree with
this submission made by Mr. Olivier.
49. I hold the view that if the test as enunciated in the matter of Grant v Plumbers,
as confirmed and applied in various matters since, is to be applied to the
present matter, it is evident that the court a quo, in coming to the eventual
decision to dismiss the Rescission Application , did in fact consider the merits of
the Partial Payment Defence and also made findings as to the credibility of the
See Satin Rock (Pty) Ltd and Another v Teichman [2024] ZAGPJHC 541 (5 June 2024), par 4.
Mathale v Linda and Another, [2015] ZACC 38 (2 December 2015); also reported at 2016 (2)
BCLR 226 (CC).
Matha/e, supra, par 40. Also see National Coalition for Gay and Lesbian Equality and Others
v Minister of Home Affairs and Others [1999] ZACC 17 (2 December 1999), par 11.
18
said Partial Payment Defence and whether the probabilities are or would be in
favour of the appellant.
50. In view of the above I therefore have to agree with Mr. EHiert in this regard
namely that the court a quo did in fact apply too strict a test in the matter and
that the court a quo did not appraise itself with the applicable legal principles.
51. I hold the view that the Partial Payment Defence, if established at trial, would
constitute a good defence.
52. Having said all of the above, I deem it necessary to mention that when
considering matters such as the present and in view of the fact that court rolls
nowadays are extremely clogged and that available resources are being
stretched extremely thin, it might be prudent for courts in future to reconsider
adopting an attitude as set but in Maia v Total Namibia (Pty) Ltc/22 where the
court refused to rescind default judgment on part of a claim by virtue thereof
that the defence that was put up was needlessly bald, vague and sketchy23,
thereby effectively applying the test as laid down in Breitenbach v Fiat SA
(Edms) Bpk.24
COSTS:
22
23
24 53. Mr. Eillert implored us to order the respondent to pay the costs of the appeal,
the. said costs to include the costs occasioned by the application for rescission
as well as the application for leave to appeal.
54. Although I could find no reason why the costs of the appeal should not follow
the result in as far as the appeal proceedings are concerned, I similarly find no
Maia v Total Namibia (Pty) Ltd, 1991 (2) SA 188 (Nm).
Maia, supra at 1900.
Breitenbach v Fiat SA (Edms) Bpk, 1976 (2) SA 226 (T) at 228E-F. Also see SOS-Kinderdorf
International v Effie Lentin Architects 1991 (3) SA 574 (Nm) at 576A-579C.
19
reason why the respondent should be mulct with the costs of the application for
rescission as well as the costs of the application for leave to appeal simply
because he, in the circumstances, chose to oppose both.
55. I could also not find any reason, nor were we referred to any reason why costs
should not be awarded on Scale "B'' as·referred to in Rule 69(7) read with Rule
67A(3) of the Rules.
ORDER:
56. In view of all of the above, the following order is made:
1. The appeal succeeds -with costs which costs include only the
costs of the appeal and exclude the costs of the application for
rescission and the application for leave to appeal;
2. The defaultjudgment granted under case number 2115/2021 on 10
•. May 2022 is rescinded and set aside and is substituted with the
following order:
2. 1 That leave is granted to the appellant (the defendant in the
action) to defend the action instituted by the respondent (as
plaintiff in the action) under the above case number;
2.2 That the appellant is to deliver his plea, with or without
counterclaim, within 20 (twenty) court days from date of this
order;
2.3 That, in as far as the application for rescission as well as the
application for leave to appeal are concerned, each party is
to pay his/her own costs; and
20
2.4 That all of the above costs (the costs in the appeal as well as
the costs in the applications for rescission and leave to
appeal) are to be paid on a scale as between party and party
and in terms of scale 11B" as referred to in Rule 69(7) read
with Rule 67 A(3) of the Uniform Rules of Court.
A.O. OLIVIER
Acting Judge
I concur.
A.P.S. NXUMALO
Judge
I concur.
A. STANTON
Judge
For Appellant
For Respondent Adv. A Eillert
o.i.o Louw & Da,Silva Attorneys Inc.
KATHU·. -_
c/o Duncan & Rothman Inc.
KIMBERLEY
Adv. J.L. Olivier
o.i.o Oosthuizen , Sweetnam , Reitz & Fourie
KATHU
c/o Elliott Maris Attorneys
KIMBERLEY 21