REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NUMBER: 9978/2023
(1)
(2)
(3) REPORTAB LE: ~NO
OF INTEREST TO THE JUDGES: ~NO
REVISED.
~ DATE 9 June 2025 SIGNATURE ............................ .
In the matter between:
FANANG DIATLA BUSINESS ENTERPRISE &
CONSTRUCTION CC
VICTORIA GALANE
-and-
MAKATSUKA CIVILS AND CONSTRUCTION CC
Delivered 9 June 2025 1 ST APPLICANT
2ND APPLICANT
RESPONDENT
Date heard
Coram
BRESLERAJ:
Introduction: 2
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 9 June 2025.
3 June 2025
Bresler AJ
JUDGMENT
[1] The Applicants apply for an order for the rescission of the judgment granted by
Makoti J on the 4th of February 2025 and in the absence of the Applicants. It is the
Applicants' case that, at the time the matter was called on the unopposed roll, a
Notice of Intention to Oppose was already delivered. It is common cause that the
said notice was not contained in the Court file and the Applicants' represen.
[2] The Application is launched on an urgent basis. The Applicant submits that the
matter is urgent as the Taxation is enrolled for August 2025. There is no indication
from the Respondents attorneys that they intend to suspend the execution should
the matter be heard on the ordinary roll.
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[3] At the commencemen t of the proceedings this Court indicated that arguments I
respect of urgency and merits will be heard simultaneously due to time constraints.
The practitioners were not from Polokwane and rolling the matter over would
consequently have a substantial cost implication.
Issues that require determination:
[4] This Court is called upon to determine whether sufficient urgency has been shown
to exists to warrant the hearing of the matter on the urgent roll. This Court must
further consider if the judgment must be set aside having regard to the fact that the
existence of the Notice to Oppose was not disclosed to the Court at the hearing of
the Default Judgment.
Applicable Legal Principle s:
Urgency :
[5] In this Courts view, the matter is sufficiently urgent to have it entertained on the
urgent roll. The test for urgency has often been stated. In the well-known case of
East Rock Trading 7(Pty) Ltd v Eagle Valley Granite (Pty) Ltd1 the Court restated
the well-known test as thus:
1 2011 JDR 1832 (GSJ)
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In my view the delay in instituting proceedings is not, on its own, a ground for
refusing to regard the matter as urgent. A court is obliged to consider the
circumstances of the case and the explanation given. The important issue is
whether, despite the delay, the applicant can or cannot be afforded substantial
redress at a hearing in due course. A delay might be an indication that the
matter is not as urgent as the applicant would want the court to believe. On
the other hand a delay may have been caused by the fact that the Applicant
was attempting to settle the matter or collect more facts with regard thereto.'
[6] Substantial redress will not be afforded as the Respondent clearly intends to
proceed with the taxation and there is no indication on the papers before court that
the execution of the order will be stayed pending the hearing of the rescission of
judgment in due course. Counsel for the Respondent merely indicated during the
hearing that execution would 'probably' be stayed. This is not sufficient to warrant
a finding that the matter is not urgent.
[7] The matter is therefore found to be sufficiently urgent to warrant the hearing thereof
on the urgent roll.
Rescission of judgmen t:
[8] The crux of the Respondent 's opposition to the Application for Rescission of
Judgment lies in the fact that the Applicants are to blame since their Notice to
Oppose was delivered out of time and they did not ensure that it was contained in
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the Court file. The Respondent furthermore states that there was no obligation on
them to respond to the Answering affidavit as judgment was already granted at this
stage.
[9] During the hearing, the Court enquired from the Respondent's attorney if he brought
the Notice to Oppose to the knowledge of the presiding judge. He indicated that the
said Notice to Oppose was not in his office file, so he was also not aware thereof.
[1 O] In this Court's view, the excuse rings hollow. If indeed he was not aware of the said
notice, this should have been set out in the Answering affidavit. Once a document
is served, it is assumed that it came to the knowledge of the recipient -such
recipient carries the onus to proof otherwise.
[11] Moreover, it does not explain why he failed to immediately communica te with the
Applicants' attorney regarding the default judgment that was granted. It appears
that he elected to remain mum at the detriment of the Applicants.
[12] In the case of Mi-tax Ltd v National Printing & Publishing Trust (Pty) LtcP the
following was said at [33] -[34]:
'[33] I prefer the reasoning in the cases cited to me by counsel for the
plaintiff. I think the approach in Bakhoven is too narrow. Common to these
cases is the notion that a court should be at large, in a proper case, to set
2 2010 JDR 0067 (GNP)
6
aside as erroneously sought or granted an order which would not have been
made if all the relevant facts had been before it. In my view this approach
emphasises the constitutional value of openness (transparency), promotes a
value central to s 34 of the Constitution , ie that courts exist, as they have
always existed, to resolve disputes wherever possible on their merits, and
provides a valuable tool for promoting the interests of justice. As it has been
said, the rules are for the court, not the court for the rules.
[34] For the same reasons, there is in my view a legal duty on a litigant who
moves an application for default judgment to disclose to the court certain
relevant information in the possession of the litigant but not available to the
presiding judge if the disclosure of such information might reasonably lead the
judge to refuse, postpone or stand down the application. If the content of such
information , when disclosed after the judgment, is relevant to the decision
under rule 42(1 )(a), then it must follow that there is a duty to disclose it when
the application for default judgment is moved. The precise ambit of this duty
may be difficult to anticipate and I shall not try to do so but the practical
difficulty of identifying circumstances which call for disclosure should not be
over-emphasised. This duty of disclosure is honoured by counsel every day in
the unopposed motion courts of this division and indeed these courts could
not function properly if this were not so.'
[13] It is thus this Court's view that the existence of the Notice to Oppose should have
been brought to the attention of the presiding judge. Had this been the case, the
Costs: 7
presiding judge would in all probability have declined to hear the matter. On this
basis, the rescission must succeed.
[14] There is no reason why the costs should not follow the outcome of the proceedings.
The Applicant prays for costs de bonis propriis against the attorney of the
Respondent. This Court is of the view that such an order is extremely harsh. There
is no indication that the attorney was acting on a frolic of his own and there is thus
no reason why the Respondent should not be held liable for the costs.
[15] Having regard to inter a/ia the nature of the proceedings and the importance thereof
to the parties, costs to counsel on Scale B is warranted.
Order:
[16] In the result the following order is made:
16.1 The application is heard as an urgent application in terms of Rule 6(12)
of the Uniform Rules of Court and the Court dispenses with the forms
and services of the Rules of Court in the application ;
16.2 The order granted by Makoti AJ on the 4th of February 2025 is hereby
rescinded and set aside;
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16.3 The Respondent is ordered to pay the costs including costs to counsel
on Scale B.
APPEARANCES:
FOR THE APPLICANTS
INSTRUCTED BY
FOR THE RESPONDENTS
INSTRUCTED BY M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION , POLOKWANE
Mr IM Moselana
Nkosi Nkosana Incorporated
Boksburg
isaac@nninc.co.za
secretary1@nninc.co.za
Mr. M Maponya
Matuba Maponya Attorneys
Polokwane
matumapo@gmail.com