IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 20831 /2022
In the matter between:
MMAZWI CIVIL AND CONSTRUCTION SERVICES CC Applicant
and
PHOPHOLO H.M. (PTY) LTD Respondent
In Re :
PHOPHOLO H.M. (PTY) LTD Plaintiff
and
MMAZWI CIVIL AND CONSTRUCTION SERVICES CC Defend ant
DATE OF JUDGMENT : This judgment is issued by the Judge s whose name s 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 the judgment is deemed to be 12 June 2025.
JUDGMENT
Khashane Manamela , AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
12 June 2025
Date K. La M Manamela
2
Introduction
[1] On 27 October 2022 , this court granted judgment or an order against the applicant ,
Mmazwi Civil and Construction Services CC (‘Mmazwi’) in favour of the respondent ,
Phopholo H.M. (Pty) Ltd (‘Phopholo’) for payment in the amount of R837 200 (together with
interest and costs ) (‘the Default Order’) . The Default Order arose from an oral agreement in
terms of which Mmazwi hired waste removal trucks from Phopholo. Mmazwi had not defend ed
the action instituted by Phopholo , hence the Default Order .
[2] In this application , Mmazwi seeks the rescission of the Default Order in terms of Rule
42(1)(a) of the Uniform Rules of this Court on the basis that it was erroneously sought and
erroneously granted, alternatively on the basis of the common law. Mmazwi , also, rather
tentatively I must add, seeks condonation for the late bringing of this resciss ion application . It
says that the l atter order is sought only in the event that the application is considered by th is
Court to have been launched late . The rescission application is opposed by Phopholo .
[3] When this application came before me on 14 February 2025 , Mr T Kgomo appeared
for Mmazwi and Mr NG Louw appeared for Phopholo . I reserved this judgment following oral
submissions by counsel on behalf of the parties .
Brief background
[4] The issues in this application are crisp , but a brief background on the common cause
facts is warranted for purposes of context. Where a particular issue may be disputed , I will
indicate the contrasting view .
[5] Mmazwi was cont racted by the City of Tshwane Metropolitan Municipality (‘the City’)
to render r efuse or waste remov al services to the City during 2021 . Mmazwi, initially, did not
have its own vehicles for the services to the City . During or about February 2021 , Mmazwi
approached Phopholo to use its trucks. The two concluded an oral agreement for the hiring out
3
of trucks . Mmazwi was duly represented by Mr Mpho Patrick Letladijwane Lesufi , whilst
Phopholo was duly represented by Ms Mantlawe Evelyn Modise during the conclusion of the
agreement .
[6] The terms of the agreement, essentially, were as follows , that : (a) Mmazwi would hire
Phopholo’s waste removal vehicles or trucks as and when required; (b) Phopholo will charge
Mmazwi for the use of the trucks at the rate or a fee of R8 000 plus VAT (i.e. value added tax)
per truck per day; (c) Phopholo would render invoices to Mmazwi monthly in ar rears for the
applicable charges , and (d) Mmazwi would be liable for payment of the rendered invoices
within 30 days of delivery of same .
[7] I hasten to point out that t he conclusion and terms of the oral agreement are common
cause between the parties , save for the rate or charge for hiring each truck per day . Mmazwi
says the daily rate for a truck was R6 000 plus VAT and not R8 000 plus VAT, contended for
by Phopholo .
[8] For the period from 19 February 2021 to 10 May 2021 , the charges levied by Phopholo
to Mmazwi for the use of the former ’s trucks was in the amount of R1 214 400 . The following
were the invoice s rendered for the aforesaid period: (a) invoice for February 2021 in the amount
of R128 800; (b) invoice for March 20 21 in the amount of R460 000; (c) invoice for April 2021
in the amount of R496 800, and (d) invoice for May 2021 in the amount of R128 800. Mmazwi
effect ed full payment of the invoice for February 2021 on 9 April 2021 . But, t here was only
part payment for the invoice of March 2021 in the amount of R248 400, instead of R460 000,
made on 3 May 2 021. Mmazwi, also, did not pay t he remainder of the invoices at all and all
these outstanding debits tallied to an amount of R837 200 owed by Mmazwi , according to
Phopholo .
4
[9] On 1 4 June 2022 , summons was issued at the instance of Phopholo against Mmazwi
for payment in the amount of R837 200. On 8 July 2022 , the summons was served by the sheriff
of this Court at 44 Arklow Road, Bryanston Johannesburg. This was the registered office
address of Mmazwi in terms of the records obtained by Phopholo from the Companies and
Intellectual Property Commission (‘the CIPC’) .
[10] There was no delivery by Mmazwi of a notice of intention to defend the action . On 27
October 2022 , the Default Order was granted by this Court, per Carrim A J. Thereafter,
Phopholo e mbarked on steps to execute the Default Order in order to recover the judgment debt
arising from the D efault Order. The bank account belonging to Mmazwi was attached at the
instance of Phopholo.
[11] During March 2024 , Mmazwi launch ed an urgent application to suspend the effect of
the Default Order and, thus, free its bank account from attachment . The urgent application was
opposed by Phopholo. Ultimately, by agreement between the parties , an order was made on 19
March 2024 , per Wanless J . The terms of the order included : (a) the upliftment of the
attachment placed on Mmazwi’s bank account; (b) immediate payment by Mmazwi to
Phopholo in the amount of R558 000, and (c) Mmazwi being placed on terms to launch this
rescission application within 15 days from the date of the order (‘the Urgent Order’).
[12] On 12 April 2024 , this application for rescission of the Default Order was initiated by
Mmazwi . Mmazwi says the application was launched on time in compliance with the Urgent
Order , but seeks cond onation for the timing of its institution, if needed. Phopholo contends
that, indeed , condonation is necessary and vigorous ly oppos es both condonation and the
application (on its merits) . I deal with the issue of cond onation , next.
5
Condonation for the late institution of the application
[13] Mmazwi , as already stated, seeks the rescission of the Default Order under Rule
42(1)(a).1 There is no time period for the launch of a rescission application in terms of this
Rule. But, I consider trite the fact that an applicant seeking rescission under this Rule ought to
bring the application within a reasonable time of know ing of the existen ce of t he impugned
order .2 What constitutes a reasonable time would vary from case to case , as this depend s on the
particular facts of a matter .3
[14] Mmazwi , as already indicated , says that the re scission was launched time ously. This,
according to Mmazwi , is so when reckoned from the date of the Urgent Order . The time frame
in the Urgent O rder was by agreement between the parties , sanctioned by the Court .
[15] When a party seeks c ondonation, including under Rule 27 of this Court, it is require d
to show ‘good cause ’ for the material non-compliance with the rules of the Court .4 But, n o
universal or exhaustive definition exists on what constitutes ‘good cause’ .5 The doctrine of
‘good cause’ is within the realm of the discretion of the Court . It has constitut ive requirements ,
including the following p rincipal ones: (a) a satisfactorily explanation for the delay by the
applicant , and (b) existence of a bona fide defence or satisfactory proposition that the
applicant ’s defence or the seeking of material relief is clearly not ill-founded or patently
unfounded .6 There is another requirement , also, considered essential by some of the authorities ,
namely, that the indulgence sought ought not to be prejudic ial to the other party in the matter
1 Par [ 30] below for a reading of Rule 42(1)(a).
2 First National Bank of Southern Africa Ltd v Van Rensburg NO: In re First National Bank of Southern
Africa Ltd v Jurgens and Others 1994 (1) SA 677 (T) at 681B –G; Firestone South Africa (Pty) Ltd v
Genticuro AG 1977 (4) SA 298 (A) at 306H; Ledwaba N.O v Mthembu and Others (25312/2016) [2021]
ZAGPJHC 641 (30 August 2021) [22].
3 Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimowitz and Others 1996 (4) SA 411 (C) at 421G.
4 DE van Loggerenberg, Erasmus: Superior Court Practice (Service 23, Jutastat e -publications December
2024) (‘ Erasmus: Superior Court Practice ’) RS 25, 2024, D1 Rule 42 -11 and, further, RS 25, 2024, D1
Rule 27 -1-RS 25, 2024, D1 Rule 27 -9.
5 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 27-3.
6 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 27 -4 to D1 Rule 27 -5 and the authorities relied
upon there.
6
in a manner which is not capable of being remedied by an order as to costs , postponement or
both.7 The decis ion of the Supreme Court of Appeal (‘the SCA’) in Mulaudzi v Old Mutual
Life Insurance Company (South Africa) Limited and Others, National Director of Public
Prosecutions and Another v Mulaudzi (‘Mulaudzi ’),8 provided the needed clarity by depicting
the factors usually weigh ing with th e Court when determining the issue of condonation . The
factors include : ‘the degree of non -compliance, the explanation therefor, the importance of the
case, a respondent’s interest in the finality of the judgment of the court below, the convenience
of this court and the avoidance of unnecessary delay in the administration of justice ’.9 It was
emphasised by t he SCA in Mulaudzi that when dealing with condonation the issue of prospects
of success whilst , general ly, an important factor or consideration , is not decisive amidst factors
relevant to the Court’s discretion .10
[16] The explanation for the delay proffered by Mmazwi is criticised by Phopholo . I think
the criticism is valid and deserved. Mmazwi has not satisfactorily explained why this rescission
application was not brought earlier when it became aware of the existence of the Default Order.
In its founding papers Mmazwi sa id that it became aware of the Default Order only on 19
February 2 024.11 Phopholo disputed this and pointed out that the Default Order formed part of
the documents emailed to Mmazwi on 29 May 2023 and that Mmazwi has ‘purposely
neglect[ed] to include the annexures to the … email’ .12 In its replying affidavit, filed woefully
late and, in fact, a few days before the hearing of this application, Mmazwi chooses to advance
its case for rescission differently. Whilst maintaining its equivocation about when precisely it
became aware of the Default Order , it contends that what it had before was not ‘meaningful
7 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 27 -5 and the cited authorities.
8 Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others, National Director of
Public Prosecutions and Another v Mulaudzi (98/2016, 210/2015) [2017] ZASCA 88; [2017] 3 All SA
520 (SCA); 2017 (6) SA 90 (SCA) (6 June 2017).
9 Mulaudzi [26].
10 Mulaudzi [34].
11 FA par 66, CL 04 -27.
12 AA par 18, C L 04-109.
7
response and the [required] documents that gave rise to the Judgment and Taxation’ and, th us,
it was ‘precluded from bringing this application’.13 This is rather absurd , to say the least.
Nothing prevented Mmazwi and its attorneys , when confronted with a bill of costs - relating to
disputed litigation of unknown origin - from immediately approaching the Registrar of this
Court for the additional documents sought. Why wait for an opponent who has already taken
judgment against you to clarify the judgment when the Registrar of Court is the actual custodian
of the material documents , even through the CaseLines platform . If there is anyone who
precluded Mmazwi from launching the rescission is Mmazwi itself and its own dithering. This
is so, as even after Mmazwi gained access t o the CaseLines platform in early November 2023,
it still delayed the rescission until 12 April 2024 , when spurred into action by the attachment
of its bank account . I agree with Phopholo that Mmazwi did not f urnish an explanation of i ts
default for the period between November 2023 and February 2024 , let alone a satisfactory
explanation .
[17] I turn to th e issue of existence of bona fide defence . I am equally mindful of the fact
that at this stage of the enquiry one need not do more than take a peek at the merits of the
defence proffered. Mmazwi ’s defence, essentially, is its disagreement with the rate used for the
truck hire from Phopholo. Mmazwi has already made full payment for the February 2021
invoice constituted by the impugned rate and part paym ent of the invoice of March 2021.
According to Mmazwi , it disputed the rate used in the invoices and withheld payment , but there
is absolutely no proof of this. The reference to payment being made under the so -called p rotest
in a letter of 24 February 2024 by Mmazwi’s attorneys , referred to in the replying affidavit ,
does not change the position. There is nothing contemporaneous with the making of the
payments by Mmazwi or immediately thereafter to establish its defence or payment under
protest. The criticism of how Phopholo acquired the City’s letter of appointment of Mmazwi
13 Replying Affidavit par 48, CL 04 -328.
8
as a contractor, including of Phopholo’s assertions regarding the amounts payable in terms
thereof to Mmazwi , does not serve to establish Mmazwi’s defence. Available evidence clearly
confirms a party to a contract who ignored a term of the contract and proceeded to make
payment on its own extra -contractual terms. I am, thus, not reasonably satisfied that the
application has prospects of success , as I consider Mmazwi’s defence not bona fide . Besides,
our law does not promote for an applicant to build its cas e in the replying affidavit . Also, it
ought to be borne in mind that in this application Mmazwi bears the onus of proof as the
applicant for relief.
[18] Therefore, the condonation will fail on the bases that Mmazwi did not provide a
satisfactory explanation for the delay and lacks a bona fide defence.14 But for reasons that will
become clear below, I deem it necessary to deal with the merits of the rescission.
Mmazwi ’s (i.e. applicant’s) case (including submissions)
[19] I have already dealt with the crux of Mmazwi’s case against Phopholo above. But,
under this part I will – in the main – concentrate of the submissions by Mr Kgomo, who
appear ed at the hearing for Mmazwi . I will not reflect all of his submissions those critical for
the determination to be made.
[20] The dispute between Phopholo and Mmazwi is long standing . Mmazwi disputed the
charge rate of R6 000 plus VAT per truck per day used by Phopholo in its invoices. Phopholo
undertook to rectify or adjust same , but persisted in using the rate in subsequent invoices .
Mmazwi decided to withh old payment from Phopholo until a reconciliation of its account was
done by Phopholo . In the meantime and without Mmazwi being aware , Phopholo instituted the
action and obtained the Default Order.
14 United Plant Hire (Pty) Ltd v Hills 1976 (1) SA 717 (A) at 720E -G.
9
[21] During May 2023 , Mmazwi says that it was alerted to the existence of the Default Order
when it received a Notice of Intention to Tax a Bill of Costs (‘Notice of Taxation’) from the
attorneys acting for Phopholo. Mmazwi says that it instructed i ts own attorneys to make the
relevant inquiries. On 19 June 2023 , Mmazwi ’s attorneys wrote to Phopholo ’s attorneys
requesting copies of the pleadings in the action and to be invited on the CaseLines platform of
the Court . According to Mmazwi there was no response to the enquiry/request .
[22] On 17 October 2023 , Phopholo ’s attorney s served on those for Mmazwi a notice of set
down of the bill of cost s. Mmazwi says it s attorneys pressed their counterpart for a response to
no avail, until on 6 November 2023 when Phopholo’s attorneys invited them onto CaseL ines.
This, according to Mmazwi , is when it became aware of existence of the circumstances which
led to the Default Order, including that Phopholo issued summons on 14 June 2022 . The
summons was s erved by the sheriff by wa y of affixing it to the post box of Mmazwi ’s registered
office address , purportedly in terms of Rule 4 (1)(a)(v) of the Uniform Rules of this Court.
[23] Mmazwi contends that the summons never came to its attention as the address used was
the former place of residence of i ts member . The member had vacated the address more than a
year prior to the date of the purported service . Therefore, for these reasons, the Default Order
was erroneously sought by Phopholo and erroneously granted by the Court . Rescission is also
sought in terms of the common law.
Respondent’s case (i.e. Phopholo ’s) (including submissions )
[24] The rescission application is opposed forcefully by Phopholo . Some of the aspects
raised by Phopholo to oppose the granting of the relief sought by Mmazwi have been already
stated above. Further aspects of Phopholo’s case and princip al submissions made by Mr Louw ,
on its behalf are dealt with under this part.
10
[25] Phopholo says that it performed in accordance with the terms of the oral agreement
between the pa rties. Further that it is entitled to use the rate of R8 000 per truck per day , agreed
with Mmazwi, when billing Mmazwi for the use of its trucks. It is the br each of the agreement
- through non -payment of its invoices – by Mmazwi, which led to the summons and the Default
Order. In fact, Mmazwi cannot bona fide dispute the charge -out rate used , as it has already
conceded that Phopholo is entitled to payment in the amount of R558 900 of the judgment debt,
but only dispute the balance there of .
[26] According to Phopholo , Mmazwi ’s assertions of the applicability of the rate of R6 000
per truck per day is contradicted by the following objective fact s:
[26.1] Mmazwi says that it cannot have agreed to the rate of R8 000 per truck , without
suffer ing a loss, because it was paid by the City at exactly the same rate . This is false
according to Phopholo as borne by Phopholo’s appointment letter by the City, which
reflect s that Mmazwi was paid R11 500 per truck per day. Phopholo regards this as
destructive to Mmazwi 's version and , also, as fundamentally go ing to the credibility
and bona fides of Mmazwi in seeking brazenly to mislead the Court. Mmazwi in its
replying a ffidavit sought to criticise the origin or acquisition of the letter by Phopholo .
Mmazwi sought to explain itself out of the resultant situation, among others, by
referring to a plethora of bids it allegedly made to the City and the fact that the rate of
R11 500 per truck did not include diesel costs and those relating to the driver of the
truck .
[26.2] Mmazwi made payment of the invoice for the month of February 2021 in full,
as well as part of the invoice for March 2021. The two invoices clearly reflected the
rate of R8 000 per truck and , therefore , Mmazwi could not have made the payment of
R8 000 if the rate did not apply.
11
[26.3] Mmazwi , in its foundin g papers , allege d that it did not pay the second invoice
as it had realised that the rate used in the invoice was still incorrect. It is submitted on
behalf of Phopholo that this is untrue as Mmazwi had made part payment as aforesaid .
Mmazwi never contemporaneously raised the issue of the rate used with Phopholo .
There is no e -mail, WhatsApp messages , text or SMS or call to this effect , by Mmazwi
to Phopholo express ing its discomfort or dissatisfaction with the rate used. There is no
evidence whatsoever in this regard presented to the Court. In the circumstances , Mr
Louw for Phopholo , submit ted that there is no bona fide defence borne by the evidence
before the C ourt. As stated above, M mazwi and its replying affidavit , stated that the
payments were made under protest and so ught to rely on a letter by its attorney of 23
February 2024 . This was almost three years after the last payment had been made on 3
May 2 021 without demur . I have rejected this attempt by Mmazwi to build or patch up
its case in the replying affidavit .15
[27] Two bank accounts of Mmazwi were attached. The first was a bank account held by
Mmazwi with Nedbank. The second account to be attached was with ABSA Bank. Mmazwi
only reacted when Phopholo attach ed its Absa Bank account in February 2024 as there were
funds available for attachment in this account . This was the only time when Mmazwi felt
inconvenience d and took steps to have the Default Order rescinded. Such conduct i s not
consistent with a party w ho truly dispute d the validity of a judgment and who b ona fide intends
to defend a matter, it is also submitted on behalf of Phopholo. Also, that Mmazwi has clearly
acquiesced in the Default Order.16
15 Par [ 17] above.
16 Maujean t/a Audio Video Agencies v Standard Bank of SA Ltd 1994 (3) SA 801 (C) ; Blue Crane Route
Municipality v Municipal Workers Retirement Fund (3016/2019) [2020] ZAECGHC 113 (8 October 2020)
[20].
12
[28] It is further submitted that j udgment , in the form of the Default Order, was not
erroneously granted. The address at which service of the summons was effected by the sheriff
was proper . It was Mmazwi’s address in terms of official records of the CIPC . The affixing of
the summons to the post box was proper mode of service in terms of the legal authorities.17 The
summons w as properly served, it is submitted for P hopholo , and Mmazwi only failed to enter
an appearance to defend.
Applicable legal principles
[29] This application for rescission of the Default Order is premised on Rule 42 (1)(a) and
the common law . The principles or legal requirements of aforesaid , therefore , serve as the
princip al legal principles applicable to this matter for current purposes. But, some of these rules
(or the legal principles arising therefrom) have already been referred to above. Therefore , this
part serves to reflect in greater detail the primary legal principles to facilitate further discussion
and determination , below.
[30] The application, as already stated , is co-anchored upon Rule 42(1)(a) , forming part of
Rule 42 for variation and rescission of orders , which reads:
(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 party affected thereby …
[31] The rescission is also sought in terms of the common law. The following extracts from
Erasmus: Superior Court Practice reflect the essence of applications for rescis sion based on
the common law:
At common law a judgment can be set aside on the following grounds:
(a) fraud;
(b) justus error (on rare occasions);
(c) in certain exceptional circumstances when new documents have been
discovered;
17 Absa Bank Ltd v Mare and Others 2021 (2) SA 151 (GP) [27].
13
(d) where judgment had been granted by default; and
(e) in the absence between the parties of a valid agreement to support the judgment,
on the grounds of justa causa .
An application on common -law grounds must be brought within a reasonable time.18
[32] These legal principles , to the exten t required, would be referred to in the discussion of
the issues necessary for the determination of this matter, identified next.
Issues for determination
[33] Most of the issues dispositive of this matter have already been addressed above.
Therefore, I will avoid a repetition of the issues in the discussion below , although in some
instances this may prove unavoidable. The primary issues in this application for rescission of
the Default Order , naturally, are the requirements for rescission . Mmazwi, as the applicant in
this matter , places reliance on Rule 42(1)(a) and the common law . There may be other issues
of ancillary or secondary nature, as would appear below, tied to the se primary issues relevant
to the determination of this matter .
Service of the summons which led to the default order
[34] Phopholo has f urnished proof from the CIPC that the address use d for service of the
summons was the registered office address of Mmazwi and, therefore, a proper and valid
address for service in terms of the rules of this Court. It is irrelevant that Phopholo may have
been aware of some other address where the summons could have been served . Mmazwi has a
statutory responsibility to update and maintain its records as kept by the CIPC .
[35] But there is one thing more to be said about the defence raised by Mmazwi with regard
to the address of service of the summons. The deponent to affidavits filed by Mmazwi and this
application is Mr Mpho Patrick Letladijwane Lesufi (‘Mr Lesufi’). Mr Lesufi is the sole
member of Mmazwi. T hroughout the papers Mr Lesufi appears to i gnore that Mmazwi , as a
close corporation, is a separate juristic or legal personality and not his alter ego. This is so with
18 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 42 -9.
14
regard to the service address used by Phopholo for the summons. Mr Lesufi says the address
also served - at some point - as his residential address. And for this reason , Mr Lesufi assume s
that when he vacated the address it automatically ceased to be the registered office address of
the corporate entity , Mmazwi. The aforesaid notion is obviously inimical to the durable
principle of the sanctity of the separate juristic personality of corporate entities recognised more
than a century ago in Dadoo Ltd and Oth ers v Krugersdorp Municipal Council (‘Dadoo ’)19
that a ‘ registered company is a legal persona distinct from the members who compose it ’.20
This principle is applicable to close corporations . It is recognised in a long line of decided cases
including in this Division in Hlumisa Investment Holdings (RF) Limited and Another v
Kirkinis and Others21 per Molopa -Sethosa J, which was confirmed on appeal by the SCA in
Hlumisa Investment Holdings R F Ltd and Another v Kirkinis and Others .22 The corporate veil
of Mmazwi is not lifted or otherwise affected by the manner in which Mr Lesufi may choose
to conduct the affairs of Mmazwi as its sole member. Therefore, as long as the address of
Mmazwi , as reflected in the records of the CIPC , was the same as the service address used by
Phopholo for service of the summons on Mmazwi , there is no room for further discussion on
this point .
Requirements for a rescission application
General
[36] Mmazwi, as stated above, seeks the rescission of the Default Order on the basis that it
was erroneously sought and erroneously granted in its absence , as contemplated in Rule
19 Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530.
20 Dadoo v Krugersdorp Municipal Council 1920 AD 530 at 550 -551.
21 Hlumisa Investment Holdings (RF) Limited and Another v Kirkinis and Others 2019 (4) SA 569 (GP) [50].
22 Hlumisa Investment Holdings RF Ltd and Another v Kirkinis and Others 2020 (5) SA 419 (SCA) [17], [24]
partly relying on Itzikowitz v Absa Bank Ltd 2016 (4) SA 432 (SCA). See further Piet Delport, Henochsberg
on the Companies Act 71 of 2008 (LexisNexis, October 2024) 84 for a detailed discussion on the principle
of separate legal personality of companies.
15
42(1)(a).23 The second basis for the rescission relied upon by Mmazwi is the common law. I
start the discussion on Rule 42(1)(a).
Rescission based on Rule 42(1)(a)
[37] This rule allows for the rescission of judgment or order on the basis of an error and the
fact that the impugned judgment or order was granted in the absence of a party. It is common
cause that the Default Order was granted in the absence of Mmazwi, after it did not react to the
summons. Although, I have rejected the criticism by Mmazwi of the service address for the
summons, there is nothing to cast doubt on the fact that the Default Order was granted in its
absence. The Court is satisfied that Mmazwi did not merely absent itself from the
proceedings.24
[38] The other element for rescission based on Rule 42(1)(a) is an error alleged to have been
committed when judgment was sought and/or when it was eventually granted by the Court.
When the Court deals with the element of ‘error’ it ought to be guided by principles which
include the following: (a) mistake in the proceedings; (b) mistake clear from the record of
proceedings or subsequently bec oming apparent from the application for rescission ; (c) the
impugned error may have arise n in the process of applyin g for default judgment or on the part
of the Court in the process of granting the default judgment , and (d) applicant for rescission
under Rule 42(1)(a) is only require d to show the error, not good cause for the rescission .25 But
in this case there was a need to discuss the issue of ‘g ood cause ’ for purposes of condonation
for the late bringing of the rescission application, above.26
23 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 42 -22.
24 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) [56]-[57].
25 Kgomo and Another v Standard Bank of South Africa and Others 2016 (2) SA 184 (GP) (‘K gomo ’) [11];
Freedom Stationery (Pty) Ltd v Hassam 2019 (4) SA 459 (SCA) (‘Freedom Stationery ’) at 465G –H. See
also Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 42 -18.
26 Par [ 15] above.
16
[39] Mmazwi , primarily, argues that the Default Order was erroneously sought and granted
as it did not simply elect not to participate in the proceedings . Had it been aware of the action
proceedings it would certainly have defended sa me, as it had a bona fide defence . By bona fide
defence Mmazwi is referring to the rate at which Phopholo charged for the use of the trucks .
The other reason advanced by Mmazwi is the service address for the summons and the manner
of service of the summons. I have already ruled that there was nothing wrong with both.27 I
have search ed in vain from the reasons advanced and submissions made on behalf of Mmazwi
for an error either in the process of applying for or the granting of the Default Order.28 Also,
there is no mi stake clear from the record of proceedings or the application for rescission .29
Therefore, rescission of the Default Order on the basis of Rule 42(1)(a) cannot succeed.
Rescission based on the c ommon law
[40] Mmazwi , also, relies on common law ground for rescission of the Default Order. Its
case under this ground is also, primarily, premised upon the place of address of service of the
summ ons, and the fact that the summ ons never came to its attention hence the failure to defend
the action . Further , that it has a bona fide defence which is good in law and enjoy good
prospects of success . In support of the latter, Mmazwi again raises its dispute of the rate of
R8 000 per truck per day used by Phopholo when invoicing for the use of the trucks.
[41] An applicant for resci ssion under the common law ought to show ‘ sufficient cause ’.30
There are two essential elements of ‘sufficient cause ’ in this context, namely, that (a) a
reasonable and acceptable explanation for the default , and, (b) a bona fide defence on the merits
27 Pars [34]-[35] above.
28 Kgomo [11]; Freedom Stationery at 465G –H. See also Erasmus: Superior Court Practice RS 25, 2024, D1
Rule 42 -18.
29 Ibid.
30 De Wet and others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1042.
17
which merits carries a prima facie prospect of success.31 Unless, both elements are established,
the application would fail.
[42] I reiterate that t here is no doubt that the summons did not come to the attention of
Mmazwi . This means there is reasonable and acceptable explanation for the default . This
element (and the concomitant ruling) should not be confused with the requirement to explain
the delay in seeking rescission, discussed above.32
[43] As for the second element under the common law, I refer to my findings above that
Mmazwi’s assertions in this regard fall short of a bona fide defence.33 To avoid doubt , I also
do not find any of the common law grounds for setting aside judgment s, such as fraud ,
established.34 There is also no room for the application of exceptional circumstances to allow
the re scission of the Default Order. Therefore, the application and the defence raised are devoid
of any indication of prospects of success . The findings in this matter and the Default Order will
not be t antamou nt to miscarriage of justice , as contended by Mmazwi .
Conclusion and co sts
[44] For the reasons stated above, the application for rescission will be dismissed with costs.
Mr Louw did not urge the Court to order any specific scale of costs for counsel, but I consider
scale B warranted on the facts of this matter. Therefore, I will dismiss the application with
Mmazwi held liable for costs of the application on a party and party scale , with counsel’s fees
at scale B .
Order
[45] In the result, I make the following order:
31 De Wet v Western Bank at 1042; PE Bosman Transport Works Committee and others v Piet Bosman
Transport (Pty) Ltd 1980 (4) SA 794 (A) ; Smith NO v Brummer NO and another; Smith NO v
Brummer 1954 (3) SA 352 (O) at 357 -358.
32 Par [ 16] above .
33 Par [ 39] above.
34 Par [31] above.
18
1. the application is dismissed , and
2. the ap plicant is liable to pay to the respondent costs of this application, with
counsel’s fees at scale B where employed .
___________________________
Khashane La M. Manamela
Acting Judge of the High Court
Date of Hearing : 14 February 2025
Date of Judgment : 12 June 2025
Appearances :
For the Applicant : Mr T Kgomo
Instructed by : D Reddy Inc , Bedfordview , Johannesburg
For the Respondent : Mr NG Louw
Instructed by : Albert Hibbert Attorney s, Nieuw Muckleneuk, Pretoria