IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case no: 11227/2024

In the matter between:

JOHAN LEWIS POTAS FIRST APPLICANT

JAYEHMENN LEWIS POTAS SECOND APPLICANT

and

VAN DER MERWE VENTER 24 (PTY) LTD RESPONDENT

Heard: 08 August 2025
Delivered: 19 August 2025

Summary: Recission application under Rule 42, alternatively , the common law .
Applicants rely on Rule 42(1)(a), alternatively, the common law. Applicants contend
they were not properly served with the Respondents' papers in the money judgment
based on an acknowledgement of debt. Requirements for a valid acknowledgement
of debt revisited. Loose and imprecise reference to and usage of provisional
sentence proceedings, negotiable instruments , and suretyship is not encouraged.
There is a limit to which Applicants can attribute blame to the opponent’s legal
representatives before it be comes untenable, if not unbelievable. Applicants fail to
make out a case for rescission.

ORDER

The application for recission of the order of 18 June 2024 under case number
11227/2024 is dismissed. The Applicants shall pay the Respondent’s party
and party costs and Counsel’s fees on scale B as taxed or agreed.
.

JUDGMENT


Bhoopchand AJ:

[1] The Applicants apply for recission under Rule 42 of the Uniform Rules of
Court (‘URC’), alternatively under the common law , of the order by default granted
on 18 June 2024. They allege that the order was erroneously sought and/or
erroneously granted. They, in addition, seek leave to oppose the application
instituted by the Respondent for R810 374.90. The First Applicant deposed to the
founding affidavit.

[2] The First Applicant explained that the cause of action was an
acknowledgement of debt. He denies that either he or the Second Applicant is
indebted to the Respondent in their personal capacities or their capacities as
directors of Fulani Investments (Pty) Ltd (‘Fulani/the business’), which the
Respondent liquidated. The First Applicant believed that the amount claimed by the
Respondent may have been extinguished or significantly reduced by the sale of the
business and assets owned by Fulani to another entity , which continued operating
the business using the assets and accounting procedures of Fulani.

[3] Fulani concluded a lease agreement with the Respondent to rent pr emises in
Paarden Eiland on 23 March 2021. The Respondent did insist on security to cover
Fulani’s debts. Fulani experienced financial difficulties during 2022 and 2023 and fell
into arrears with its rental payments. The Respondent instituted liquidation

proceedings against Fulani in 2023. Fulani was indebted to the Respondent for
R766 877.51 as of 9 May 2023. To prevent the liquidation, Fulani agreed to sign an
acknowledgement of debt (‘AOD’). The Applicants were included as parties in the
acknowledgement of debt process. The Applicants contend that they were not
sureties under the lease agreement and, in the absence of a deed of suretyship, they
were not indebted to the Respondent for any amount. The Applicants claim that the
Respondent’s attorney placed undue influence on them to sign the AOD. They allege
that the Respondent’s attorney did not explain to them that the AOD would bind them
personally for the debt owed to the Respondent by Fulani. After signing the AOD,
Fulani and the Respondent concluded a settlement agreement under which the
liquidation proceedings were settled . Still, the Respondent reserved its rights to
continue with the liquidation application should Fulani fail to discharge its payment
obligations as per the settlement agreement. The Applicants assert that the
underlying causa of the settlement agreement was the arrears of rent under the
lease agreement. Neither the Respondent nor Fulani intended to novate the lease
agreement and the obligations arising thereunder. The latter was evinc ed by the
Respondent proceeding with the liquidation of Fulani based on the lease agreement
and the arrears accumulated thereunder. Fulani was unable to discharge its payment
obligations under the settlement agreement , with the result that the Respondent
proceeded to liquidate Fulani.

[4] Fulani was placed under provisional liquidation on 30 November 2023 and
finally liquidated on 5 February 2024. After the final liquidation was granted, the
Applicants were not permitted to enter the leased premis es. All Fulani’s assets and
accounting documents were left in the premises. The Applicants learnt sometime
after that , Fulani’s assets were transferred to a new entity, which continued with

after that , Fulani’s assets were transferred to a new entity, which continued with
Fulani’s business. The Applicants allege that Fulani’s assets were acquired at a
value exceeding R3 million. As of 2023, Fulani’s assets were insured for R1.6
million. They requested, but did not receive from the liquidators , the sale proceeds
achieved. They contend that the debt owed by Fulani would have been discharged in
total from the sale of Fulani. They were unable to determine whether Fulani’s debt
was discharged in full . The Court notes that the Applicants were unable to support
any of these allegations and relied upon the Respondent to answer them.

[5] The default judgment was for R810 374.90. The application for default
judgment was served on Ms Buys, their secretary, on 15 May 2024. Ms Buys could
not have accepted service as she was on sick leave. On 10 June, the Respondent
subpoenaed the Applicants to appear at the second meeting of creditors at 09h00 on
18 June 2024. The Applicants suggest that the Respondent , in collusion with the
liquidators, arranged the second meeting of creditors for the same day on which the
application for default judgment was enrolled. They allege that they learnt of the
application a few days before 18 June 2024 , but after they received the subpoena to
attend the creditor’s meeting. The First Applicant states he contacted the
Respondent’s attorney to inform him of the situatio n that required them to attend the
Court and the creditor’s meeting simultaneously. The Respondent’s attorney advised
him that, as they had failed to enter an appearance to oppose the application, there
was nothing the Applicants could do to prevent the re lief sought in the default
application from being granted. They understood their attendance at Court would be
futile. They took the advice of the Respondent’s attorney as being correct. They did
not attend Court as they did not want to attract criminal san ctions by ignoring the
subpoena and avoid contempt proceedings and incarceration. The Applicants state
they did not appoint an attorney because of their ignorance of correct legal
procedures. They did not know that they could have filed an intention to op pose to
stave off the default judgment. Their non -attendance at Court was not wilful or mala
fide.

[6] The First Applicant states that ‘ the Respondent’s attorney did not report to
him or the Second Applicant on the outcome of the proceedings on 18 June 2024.
They were advised for the first time on 7 August 2024 that the order had been
granted. On 7 August 2024, the Sheriff attended to att ach property pursuant to a writ

granted. On 7 August 2024, the Sheriff attended to att ach property pursuant to a writ
of execution arising from the order granted on 18 June 2024. They state that the re
was no correspondence from the Respondent’s attorneys demanding payment of the
judgment debt before the Sheriff attended their offices to execute on it. The Court
feels compelled to note the theme that permeated the Applicants' papers, whereby
they attributed responsibility to everyone else but themselves and failed to provide a
satisfactory explanation for their inaction.

[7] The Applicants contended that a judgment is erroneously granted if there
existed at the time of its issue a f act of which a Court was unaware which would
have precluded the granting of the judgment and which would have induced the
Court, if aware of it , not to grant the judgment. If the facts of the matter disclose that
it was not legally competent for the Court to have made the order, or if the capital
claimed by the Respondent may have already been paid. The Applicants submit ted
that their case falls within these categories.

[8] They assert that their bona fide defence is that they were not at any stage
indebted to the Respondent in their personal capacities , and the absence of a deed
of surety means they are not liable for the debt of the company. The AOD records
that the Applicants are indebted to the Responde nt for R766 877.51. They assert
that an acknowledgement of debt cannot be used to create a liability retroactively.
They contend that the AOD lacks the necessary elements to impose personal liability
upon them. They did not have the necessary animo contrahendi to bind themselves
personally for the discharge of Fulani’s obligations. They submit that the AOD can
only be viewed as an undertaking to facilitate payment on behalf of Fulani. There
was no prior personal debt for them to acknowledge. The AOD was either a mistake
or a deliberate misrepresentation. The AOD did not meet the legal requirements for a
deed of suretyship.

[9] Fulani’s indebtedness under the lease agreement amounted to R766 877.51.
The deposit paid to the Respondent was also not considered. The Applicants
contend that they will suffer severe prejudice if the application for recission is not
granted. They will be held liable for a debt they did not incur in terms of an AOD for
which there is no underlying cause . The Respondent may recover more from them
than they could recover from Fulani. They seek the opportunity to place their

than they could recover from Fulani. They seek the opportunity to place their
defences before this Court . The only prejudice the Respondent can suffer is a
delayed hearing of its cas e after pleadings have been exchanged. The legal costs it
incurs would have been anticipated by the Respondent when it instituted these
proceedings.

[10] Tyrone Kleinjan, a director of the Respondent, deposed to the answering
affidavit. He aver red that the A OD constitutes a liquid document entitling the

Respondent to apply for a provisional sentence under Rule 8 of the URC. The
liquidity of the AOD was not affected by the underlying causa. The causa debitii does
not have to appear ex facie the document. The Respondent asserted that the AOD
was in effect akin to a suretyship as it complie d with all the legal requirements of a
suretyship.

[11] The Respondent admit ted that the Applicants were not indebted to the
Respondent in their personal capacities before the signing of the AOD . Still, they, to
gain an advantage for Fulani , accepted liability jointly and severally with Fulani. The
latter constitute d an indebtedness by them to the Respondent and constituted a
cause of action against them. The AOD was secured after a provisional liquidation
order was granted against Fulani. The Applicants met with the Respondent as they
wished to negotiate to halt the liquidation proceedings. The Respondent agreed to
negotiate, provided the Applicants signed the AOD and thus accepted responsibility
for Fulani’s debt. The Applicants had to pay R150 000 immediately as part payment
of Fulani’s debt. He met with the Applicants on 9 May 2024. The Applicants agreed
to the Respondents' terms and conditions.

[12] The AOD was specifically worded as the Applicants failed to sign a deed of
suretyship when Fulani entered into the lease agreement. The Respondents then
prepared a settlement agreement in the liquidation application, which would have the
effect of postponing the liquidation sine die . The settlement agreement was
concluded on 12 May 202 3. The Applicant's attorney denied speaking to the
Applicant about the AOD before it was signed . The Applicants trade as Accountants
in Malmsbury. They cannot claim ignorance of an AOD. The Respondent proceeded
with the liquidation application as the Applicants and Fulani had breached the AOD
and the terms of the settlement agreement. Fulani was finally liquidated on 5
February 2024.

February 2024.

[13] The liquidators valued Fulani’s assets at R4 53 350. They sold the assets for
R230 000. The Liquidators hold the funds . Fulani’s business was not sold. An entity
conducting a similar business operates from the same premises . The insurance
valuation of Fulani’s assets contained stock and other assets that did not exist when
Fulani was liquidated. The Master of the High Court approved the sale of Fulani’s

assets. The Applicants declined the opportunity to object thereto , apply to set it
aside, or to participate in liquidating Fulani’s assets . The debt owing to the
Respondent increased until the premises were re-let.

[14] The Respondent asserted that t he provisional sentence application was
served on the Applicants at their offices in Malmesbury. The Sheriff would not have
known the surname of the Applicants’ secretary unless she told them so. The
Respondent did not serve the subpoena to attend the creditors' meeting of Fulani.
The Registrar grants the Court date. The Master determines the date for appearance
at a creditor’s meeting. The First Applicant told the representative of the
Respondent’s attorney that he was aware of the application in the High Court. It was
simply by coincidence that these two e vents fell on the same day. The Respondent's
attorney denied that he ever had a conversation with any of the Applicants. The only
conversation he had was when he was phoned and asked whether he was prepared
to accept an arrangement to pay the outstanding amount in instalments.

[15] The Respondent submits that the Applicants do not have a bona fide defence
or a defence that has any prospect of success. The deposit paid on behalf of Fulani
was taken into account in calculating the outstanding debt. Respondent denies that
the Applicants will suffer any prejudice if the recission application is unsuccessful, as
their defence is without merit.

[16] In reply, the Applicants denied that the AOD is akin to a surety agreement .
The agreement signed by them does not comply with the legal requirements of a
surety agreement. They state that the liquidation application was addressed in the
settlement agreement, which was signed and obliged Fulani to pay the Respondents'
debt to postpone the liquidation. Fulani was also required to pay the agreed
instalments on the debt. Fulani did make the first payment of R150 000. The

instalments on the debt. Fulani did make the first payment of R150 000. The
Respondent reserved the right to continue with the liquidation if the terms of the
settlement agreement were breached. It was incorrect for the Respondent to state
that it reserved the right to continue with the liquidation if the terms of the AOD were
breached.

[17] The Applicants deny that the valuation placed on Fulani’s assets and the sale
thereof was for fair value. They deny that there was any rental payable post-
liquidation. The new company started trading before the liquidation was finalised.
The Applicants admit that the y sent an email to the Respondent to suggest a
payment plan for the amount ordered by the Court to avoid their property being sold.
They reassert that they did not have legal knowledge and did not know their options.
It was only after consulting their legal representatives that they realised they could
apply for rescission. They reassert that they were advised it was too late for them to
do anything to stave off the default judgment. They were made to understand that
appointing an attorney would be futile . Had they known that they could oppose the
application, they would have done so. They rejected the accusation that they were
guilty of fraud. They reiterated that they did not pay any amount under the AOD, and
any payments made to the Respondent were by Fulani in terms of the settlement
agreement. The new entity used their equipment, accounting software and even their
VAT number for a period , and their invoice numbers continued where Fulani’s
ended. Some of Fulani’s invoices were paid to the new entity. The Applicants did
not provide any documents to support the latter contentions.

[18] The Applicants insisted that they could explain their failure to defend the main
application. The Respondent misrepresented the agreement it sought to enforce
against them. It is unclear as to whether they refer to the agreement underlying the
AOD or that of the settlement agreement. The Applicants’ mistake as to the true
character of the agreement resulted in an iustus error, which they contend is a bona
fide defence to the main application. The defence of iustus error was pleaded as a
sustainable prima facie defence that the Applicants sought to advance in the main

sustainable prima facie defence that the Applicants sought to advance in the main
application if granted leave to do so. They asserted that they would suffer greater
prejudice than the Respondent, should the default judgment not be rescinded, hence
the balance of prejudice favoured the rescission of the default judgment.

EVALUATION

[19] The first issue of precedence in this evaluation is to address the loose ,
imprecise, an d incorrect usage of terminology in the Respondent’s answering
affidavit. Respondent referred to its entitlement to apply for a provisional sentence

under Rule 8 of the URC . The Respondent later denied that the AOD is without any
legal force and that it could not be relied upon to obtain provisional sentence against
the Applicants. Concerning the AOD, the Respondent stated that although it is
headed AOD, it is in effect akin to a suretyship as it complies with all the legal
requirements of a suretyship. Further in the founding affidavit, the Respondents state
that the AOD was worded as it is because the Applicants failed to sign a deed of
suretyship when Fulani entered the lease agreement. These themes prevailed in the
Respondent’s written and o ral submissions. Apart from causing confusion, the
procedure adopted by the Respondent that led to the order of 18 June 2024 and the
instrument upon which the application was premised is clear from those papers.

[20] The Respondent did not institute action proceedings for provisional sentence.
The Respondent proceeded on application for a money judgment based on the AOD.
The terminology used by the Respondent is not merely semantic , as it determines
the nature of the remedy available to the Applicants. A provisional sentence is a
specialised summons-based procedure for enforcing liquid documents like an AOD.
There is no procedural irregularity in applying for a money judgment based on an
AOD. Although the answering affidavit loosely refers to provisional sentence, that
reference need not be fatal. The reference to provisional sentence was not indicative
of an intention to invoke Rule 8 of the URC. The Respondent therefore obtained
default judgment on an application for a money judgment on notice of motion and no
further explanation or analogy was required. In the absence of factual contestation,
the issue of a dispute of fact on application proceedi ngs did not arise. The Court
proceeds to assess the rescission application under Rule 31 and the common law .
The court must be guided by substance rather than form, and where no prejudice is

The court must be guided by substance rather than form, and where no prejudice is
occasioned, a mischaracterisation of the procedural label is not fatal to the relief
sought.

[21] The Respondent, having obtained an acknowledgement of debt (AOD) signed
jointly and severally by Fulani and the two Applicant directors for outstanding rental
under a lease agreement, was entitled to pursue enforcement of th e A OD
independently of the company’s liquidation. The AOD did not novate the original
obligation but suspended the remedy until the AOD matured or was dishonoured,
following the principles articulated in Adams v SA Motor Industry Employers

Association1. The Respondent’s election to proceed against the Applicants
personally, and culminating in a default judgment, was procedurally sound given
their failure to oppose despite notice. The directors’ liability under the AOD was not
contingent upon the finalis ation of the liquidation, and the Respondent was not
obliged to await the outcome of that process before seeking judgment.

[22] However, the Court notes that the Respondent did not disclose the status of
the liquidation process or the likely yield in its papers informing the application for a
money judgment. The Respondent’s omission to disclose the ongoing liquidation,
and the anticipated dividend from the insolvent estate raises concerns of procedural
candour and equitable accounting. While such o missions do not vitiate the judgment
per se , they may be material to a rescission application . The onus is on the
Respondent to account for any yield from the liquidation to avoid double recovery
and must reconcile the interdependent remedies flowing from the original obligation
and the AOD. The enforcement of the AOD, though valid, had to be tempered by the
overarching duty of good faith and the equitable imperative to prevent unjust
enrichment.

[23] The Respondent’s submission that the AOD constituted a d eed of suretyship
is also incorrect. The Court does not agree with the Respondent when it
characterises the AOD as a deed of suretyship. The surrounding circumstances that
led to the conclusion of the AOD are part of a process that validates the AOD and
not a deed of suretyship. The process in concluding a deed of suretyship differs
materially from that of an AOD, but this does not constitute a ground that could find
favour for the Applicants. The document is a valid AOD. The Court can, in th e
circumstances, do nothing further than warn against the loose reliance on and usage
of terminology. It could well be material in an application of this nature.

of terminology. It could well be material in an application of this nature.

[24] The Applicants rely on Rule 42(1)(a) or, in the alternative, the common law in
their application for recission of the order of 18 June 2024. Under Rule 42(1) (a), a
Court may, on application, rescind an order obtained in the absence of any affected
party if it was erroneously sought or erroneously granted . The two other sub -rules

1 1981 (3) SA 1189 (AD) at 1190 C-E

allow for rescission if there is an ambiguity or a patent error or omission to the extent
of such ambiguity or omission , or in the circumstances of a mistake common to the
parties. The Applicants undertook to provide sufficient or g ood cause to substantiate
the application for rescission under the common law.

[25] Rule 42 allows for the expeditious correction of a wrong judgment or order. 2
The elapse of time since the delivery of the judgment or knowledge of the judgment
would influence the Court’s discretion in granting or refusing the application. 3 The
Applicants instituted this application eleven weeks after the order was granted ,
asserting that they obtained knowledge of the order only when the Sheriff arrived to
attach their belongings. They contended that it was incumbent upon the
Respondent’s attorney to inform them of the order . As alluded to earlier in this
judgment, these types of excuses hold no water . The Applicants were aware of the
application and the order . The concurrence of the application and the insolvency
hearing was not of the Respondent’s making. The Applicants did not have to be
present at the application proceedings. They attempted settlement of the order
before consulting a lawyer who advised seeking rescission. The Respondent
asserted that it is common cause that the Applicants were physically absent when
the order was granted , but that was by their own election. The words ‘granted in the
absence of any party affected thereby’ in sub -rule 1(a) were to protect litigants
whose presence had been precluded and not those who had been afforded regular
judicial process but opted to be absent or whose absence was elected.4

[26] The submission that service was not properly effected as Ms Buys was on
sick leave is unsustainable. How would the Sheriff have known that the person
accepting service at the office of the Applicants was Ms Buys if the latter did not give
her name ? The Applicants do not dispute that service was effected at their office.

her name ? The Applicants do not dispute that service was effected at their office.
This period between service and the granting of the order is characterised by their
inactivity. They sought to evade responsibility for their inactiv ity by, once again,

2 Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E ) at 471 E-F
3 First National Bank of Southern Africa Ltd v van Rensburg NO: in re: First National Bank of
Southern Africa Ltd v Jurgens 1994(1) SA 677 (T) at 681 B -G, Promedia Drukkers & Uitgewers
(Edms) Bpk v Kaimowitz 1996 (4) 411 (C ) at 421 G
4 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) at para 56(‘Zuma’)

attributing blame to the Respondent’s attorney. The Applicants are Accountants,
professional people, and businessmen who managed a substantial business, Fulani.
It is untenable for them to contend that they relied upon the opponent’s attorney to
inform them of the process and that they were ignorant of the law. The procedure
they had to follow was set out in the Notice of Motion. The Applicants rendered an
unsatisfactory account of how they became aware of the application for the money
judgment that was subsequently granted by default. The Respondent submitted that
a return of service of a duly appointed Sheriff constituted prima facie proof of the
matter stated therein.5

[27] The Respondent’s attorney denied giving the Applicants any advice or
consulting with them during the times material to this application. All the Applicants
had to do was notify the Respondent’s attorney that they intended to oppose the
application, appoint a service address, and file their answering affidavit. They did
nothing. There is no merit in this peripheral ground raised by the Applicants to justify
the recission of the order. The delay in instituting the rescission application would, on
its own, have been fatal to the application. Still, the Court shall consider the merits of
the grounds raised by the Applicants under Rule 42 and the common law.

[28] Once one of the grounds is established, e.g., that the judgment was
erroneously sought in the abse nce of a party affected by it, the recission of the
judgment should be granted. 6 In Zuma, the apex Court tempered the latter ratio by
stating that once an Applicant has met the requirements for recission, a Court is
merely endowed with a discretion to res cind the order. It does not compel the Court
to do so.7 Absence and error are two separate requirements.

[29] The Applicants' defences are based on mistakes committed by them and
misrepresentations made to them. To the extent that the Applicants relied upon Rule

misrepresentations made to them. To the extent that the Applicants relied upon Rule
42(1)(a), the only question is whether the judgment was erroneously sought or

5 S43(2) of the Suoperior Courts Act 10 of 2013, Rule 4(6)(a), Greef v First Bank Ltd 2012 (3)
SA 157 (NCK) at 160D.
6 Mutebwa v Mutebwa 2001 (2) SA 193 (Tk) at 199 I-J
7 Zuma supra at para 53

granted. Rule 42 caters for mistakes.8 The Applicants assert that to constitute iustus
error relating to the conclusion of the AOD , a mistake implies a misunde rstanding,
misinterpretation, and resultant poor judgment and exacts a weaker standard of
scrutiny than an error in imputing blame or censure. 9 The Applicants suggest that
they laboured under a mistake that forms the basis to resile from the contract . The
contract referred to concerns the AOD.

[30] The Applicants contend that the wording of the AOD , which states that they
acknowledged that they were truly and lawfully indebted to the Respondent jointly
and severally, the one paying the other to be absolved, for the amount of
R766 877.51 instead of arrears, rentals and services, under certain terms, was false.
The Applicants did not provide surety for the lease , and their evidence that they did
not do so was uncontested . They submit that , against this, there is an untrue
acknowledgement that the Applicants were jointly and severally liable to the
Respondent.

[31] The Applicants allege that the Respondent’s attorney misrepresented the
document to them , and the issue of whether the misrepresentation is true is not a
matter before this Court. The Trial Court will determine that issue. The Applicant’s
intention was to assist Fulani in meeting its obligations, not to bind themselves
personally for Fulani’s obligations. The Applicants then proceeded to justify the
reasonableness of their mistake. They raised, among others, their vulnerability as lay
litigants, the ambiguous wording of the AOD, and the context of the liquidation of
Fulani and the purpose of the negotiations between the parties.

[32] An examination of the AOD indicates that the Applicants admission of liability
for the debt is unambiguous and express, not contingent or qualified. It was signed
by both parties in the presence of witnesses . The AOD specifies the exact amount

by both parties in the presence of witnesses . The AOD specifies the exact amount
owed, the origin of the debt, i.e., the lease agreement, the interest rate payable,
repayment terms, and default consequences. It reflects the full names of the debtors,
including their identity numbers and the registration number of Fulani. On the face of

8 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA)
(‘Colyn’)at para 5,
9 Sonap Petroleum (SA) (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A) at 238 H

it, it is a properly executed AOD and thus a liquid document that can serve as prima
facie proof of ind ebtedness, permitting the Respondent to act on it in certain
prescribed ways.

[33] The Respondent answered that the Judge who granted the default judgment
order would not have known whether the Applicants signatures were appended to
the document or not. This had to be accepted at face value. The Court did not err in
this regard. The Applicants were prepared to accept liability in their personal capacity
jointly and severally for the debt of their company owed to the Respondent. The
Applicants did not dispute the debt owed to the Respondent.

[34] The Applicants persisted with their untenable contentions that they were
unrepresented and susceptible to influence and that they placed reliance on the
Respondent’s legal representative throughout. The Respondent’s attorney denied
any interactions with the Applicants relating to the AOD. The Respondent’s director
discussed the AOD with the Applicants, and the wording of the document, which they
signed, is clear in its meaning and is distinguishable from being a trap for the unwary
as contended by the Applicants.10 There is a limit to which the Applicants can point a
finger at their opponents before these excuses become untenable and unbelievable.
As for the alleged misrepresentation , t he conclusion of the AOD occurred in
circumstances where the Applicants attempted to avoid the liquidation of Fulani, and
they agreed to sign the AOD u nder the understanding that the liquidation would be
deferred, provided they paid the amounts agreed to. The circumstances leading to
the signing of the AOD belie the Applicant’s contentions regarding
misrepresentation. The Applicants do not s uggest that t he Respondent committed
any irregularity in the process.

[35] As for the Applicants contention that the claim may have been settled through
the liquidation process and the takeover of their business by another entity, the

the liquidation process and the takeover of their business by another entity, the
Respondents provided proof that ther e was no substance to these contentions. The
Applicants assets were sold in a forced sale, and the Respondent denied that the

10 Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 (SCA) at 426 B-F

new entity that took over the Applicant’s business or benefited from the Applicants
name, assets, or accounting procedures.

[36] The Applicants have failed to establish that the order to be rescinded was
granted erroneously, nor that any good or sufficient cause exists for the order to be
rescinded. They do not have a reasonable or acceptable explanation for their default,
or a bona fide defence which carries any prospect , let alone on even a prima facie
basis, for succeeding with the application for recission of the order of 18 June 2024.
There was no mistake in the proceedings, no procedural irregularity , and no mistake
in respect of the issue of the order. The Applicants purported to introduce a defence,
but the existence of a defence is , in any event , an irrelevant consideration after the
fact of the order being granted , as it cannot transform a validly obtained judgment
into an e rroneously granted judgment. 11 The order was not erroneously sought or
erroneously granted.

[37] An application for recission of judgment on common law grounds includes
fraud, iustus error, the discovery of ne w documents , default judgment and the
absence of a valid agreement and iustus causa . An application on common law
grounds must be brought within a reasonable time. 12 The test for recission under the
common law is that the Applicants must establish that they had a reasonable and
satisfactory explanation for their failure to oppose the proceedings, and that they had
a bona fide case that carries some prospects of success.13

[38] The Applicants must detail a reasonable explanation for the sequence of
events that led to the default . If the default was due to gross negligence, the Court
should not come to the Applicants assistance. Their case must be based on good
faith, with a genuine defence, and not instituted for delay.14 Under the common law,
the Applicants are only required to make out a prima facie defence by setting out

the Applicants are only required to make out a prima facie defence by setting out

11 Lodhi 2 Properties Inve stments CC v Bondev Developments (Pty) Ltd 2007 (60 SA 87
(SCA0at paras 17 and 27.
12 Money Box Investmnents 268 (Pty) Ltd v Easy Greens Farming and Farm Produce CC case
number: A221/2019 GP, 16 September 2021 qat para 7
13 Zuma at para 71
14 Colyn v Tiger Food Industries Ltd t/a Meadow F eed Mills (Cape) 2003 (6) SA 1 (SCA) at para
11, Greenberg v Meds Veterinary Laboratories (Pty) Ltd 1977 (20 SA 277 (T) at 279

averments which, if established at the trial, would establish a defence. 15 The
Applicants rely on the same assertions supporting their application for recission
under Rule 42(1) (a) to found their case for recission under the common law. They
have not made out a case for rescission under either Rule 42 or the common law.

[39] It follows that the application must fail. The Respondents sought their party
and party costs with Counsel’s fee s on scale C . The defence of this application was
not complex enough to warrant the Court granting Counsel’s fees on the C scale.
The Court shall grant the appropriate order incorporating costs.

ORDER

The application for recission of the order of 18 June 2024 under case number
11227/2024 is dismissed. The Applicants shall pay the Respondent’s party
and party costs and Counsel’s fees on scale B as taxed or agreed.


_____________________________
BHOOPCHAND AJ
Acting judge
High Court
Western Cape Division


Judgment was handed down and delivered to the parties by e -mail on 19 August
2025.

Applicant’s Counsel: A J Van Aswegan
Instructed by: Bester and Lauwrens Attorneys
Respondent’s Counsel: J C Tredoux
Instructed by: Jordaan & Ferreira Inc


15 RGS Properties (Pty) Ltd v Ethekwini Municipality 2010 (6) SA 572 (KZD) at para 10