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the Respondents R4 500 000.00 , plus interest at the prime rate plus two per
cent per annum , from 1 August 2023 to date of final payment.
2 The basis of the judgment was a written loan agreement concluded between
the Applicant and the Respondents on 1 October 2021.
3 In terms of that loan agreement, the Respondents loaned a capital amount of
R4 500 000.00. The capital amount would bear interest at the prime rate plus
two per cent per annum, calculated from August 2019. The Applicant was
obliged to repay loan in monthly instalments of R1 500 000.00.
4 Default judgment was taken after the Applicant had failed to deliver a plea and
was placed under bar. The Respondents delivered a notice of bar on
20 September 2023.1
5 In conjunction with the application for rescission, t he Applicant applies for the
uplifting of the bar and leave to file a plea.
6 In the founding affidavit, the Applicant explained that he was unaware of the
steps taken by the Respondents to obtain judgment against him because he
had entrusted the matter to his attorney and had been given the assurance
that his plea would be filed.
7 The Applicant attached WhatsApp and text message communications with his
attorney on 3 and 4 October 2023 and on 17 January 2024, in which he made
enquiries about the progress with his case. The attorney had replied to him

1 The Notice of Bar itself was not part of the papers. It had been uploaded to CaseLines and was
available at CaseLines 02 -10 to 02 -13

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on 3 October 2023, assuring him that the plea would be filed imminently. The
Applicant’s attempts to find out the status of the matter in January by text
message and by telephone w ere met with no response. The Applicant says
he was shocked when he learned of the default judgment on 7 February 2024.
He finally heard from his attorney on 10 February 2024 . The attorney was in
hospital at the time .
8 The explanation offered is weak, given that the Applicant is an attorney himself
and was apparently aware he was under bar. Having said that, t he text
message on 3 October 2023, provides an indication that the Respondents may
have been amenable to his filing the plea notwithstanding the bar. But what
actually transpired is not contained in the affidavit s before me . It should have
been.
9 Also in the founding affidavit, the Applicant alleged that he had two bona fide
defences.
10 The first defence was that he had been pressurised into signing the loan
agreement by the First Respondent, whose spouse, the Second Respondent,
was allegedly not aware that the First Respondent had lent the Applicant
money to do construction work on his house. The Applicant says that the loan
agreement w as never supposed to be enforced.
11 The Applicant’s second defence was that the monies which had been
advanced to him , or at least his obligation to repay them, had prescribed prior
to the conclusion of the lease agreement . He asserted that the loan agreement

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had been concluded in conflict with section 126B(1)(b) of the National Credit
Act 34 of 2005.
12 It is not necessary that I decide whether there is any merit to these alleged
defences.
13 This is because I have determined that the judgment must be rescinded for
reasons not raised by the Applicant.
14 Rule 42 provides that:
“42(1) The court may, in addition to any other powers it may have, mero
motu or upon the application of any party affected , rescind or vary:
(a) an order or judgment erroneously sought or erroneously
granted in the absence of any affected party thereby… ”
15 During my consideration of the application as well as the debate with counsel
at the hearing, it bec ame apparent to me that the loan agreement that forms
the basis of the default judgment is void ab initio .
16 Section 40(1) of the NCA provides that “ a person must apply to be registered
as a credit provider if the total principal debt owed to that credit provider under
all outstanding credit agreements, other than incidental credit agreements,
exceeds the threshold prescribed in terms of section 42(1) ”.
17 In terms of section 42(1), the Minister has set the threshold at R nil in
Government Notice 512, published in Government Gazette 39981 of 11 May
2016.

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18 Section 89(2)(d) provides that a credit agreement is unlawful if, at the time the
agreement was made, the credit provider was unregistered and the NCA
requires that the credit provider be registered.
19 And section 89(5) provides that, “if a credit agreement is unlawful in terms of
section 89, then, despite any other legislation or any provision of an
agreement to the contrary, a court must make a just and equitable order
including but not limited to an order that the credit agreement is void as from
the date the agreement was entered into ”.
20 The loan agreement between the parties is not an incidental credit agreement
because, as I have indicated above, the capital amount would bear interest at
the prime rate plus two per cent from August 2019, a date several years prior
to the conclusion of the loan agreement. Interest does not become payable
when the applicant fails to repay an amount on or before a predetermined
period or date. T he loan agreement qualifies as a credit agreement under
section 8(4)(f) of the NCA.
21 There is no allegation in the particulars of claim that the Respondents are
registered credit providers. It is also clear from the affidavits that the
Respondents are not credit providers , and that the origin of the loan
agreement in this instance was personal assistance by the First Respondent
to the Applicant in repairing the defects to his home.
22 On the facts before me, therefore, t he loan agreement is void ab initio .

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23 For the above reasons, the default judgment cannot stand. It was erroneously
sought and erroneously granted within the meaning of Rule 42(1)(a) . It falls to
be rescinded and set aside.
24 I now revert to the application for condonation (upliftment of the bar) and leave
to file a plea.
25 Given the weakness of the explanation and the fact that the Applicant is an
attorney, the court might have been disinclined to grant this relief. But it seems
to me that the Respondents will effectively have to start again , and t he claim
set out by the Respondents in the Particulars of Claim will have to be
substantially reformulated.
26 The Applicant should be allowed to deal with the new cause or causes of
action that will be made out against him. It would be appropriate in this
instance for the court to exercise its discretion under Rule 27 to uplift the bar
and permit the Applicant to file a plea , notwithstanding the inadequacy of the
explanation for his default .
27 Finally, both the application for rescission and the application for upliftment of
the bar and leave to file a plea are applications in which the Applicant seeks
indulgences. It is appropriate that the Applicant pay the costs.
28 The following order is made:
28.1 The default judgment granted against the Applicant on 23 January
2024 and uploaded to CaseLines on 27 January 2024 is rescinded
and set aside.