IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3} REVISED:
IGN TUR E
In the matter between:
15 August 2025
DAT E
OUMA MARTINA MOTLOBA
and
NEDBANK LIMITED
Case N o: 015477-2022
Applicant/ Defendant
Respondent / Plaintiff
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties I their legal
representatives by email and by uploading it to the electronic file of this matter on
Case Lines. The date for handing down is deemed to be 15 August 2025.
JUDGMENT
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RETIEF J
INTRODUCTION
[1] The applicant, the defendant in the main action, seeks to rescind an order
granted against her on the 19 October 2023, inter alia, for the attachment of a motor
vehicle pursuant to the cancellation of the instalment sale agreement, which was
taken due to the default of payment [the order].
[2] The applicant brings her rescission relief in terms of uniform rule 42(1 )(c) and
in prayer 1, she seeks to rescind an order granting summary judgment. This relief
the applicant seeks in circumstances when, it is common cause that the order grated
indicated that it was sought and obtained by way of an application for default
judgment.
[3] It is for this reason that the basis and procedural history upon which the
applicant relies to rescind an order which was not made , must be considered
carefully.
UNIFORM RULE 42(1)(b)
[4] It is a fundamental principle of our law that a court order must be effective
and enforceable, and therefore it must be formulated in such a way that it leaves no
doubt as to what the order requires to be done. Not only must the order be coached
in clear terms, but it's purpose must also be readily as attainable from the language
used.
[5] Therefore, an ambiguity or a patent error or omission as a result of which a
judgment has been granted does not reflect the real intention of the judicial officer.
Rule 42(1 )(b) caters for such corrections which need to be addressed in an order
and/or a judgment so that it can be varied to reflect the real intention of the judicial
officer. The purpose of rule 42(1 )(b), in other words, caters for patent errors or any
ambiguity attributed to the court itself.
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[6] Against this brief background, the applicant in her founding papers speaking
to an error, states that: "What I had received was the notice of set down for summary
judgment. Which was done erroneously as I was still expecting the respondent to
follow the correct procedure of serving summons personally upon me before the
matter could proceed for hearing and be allocated a date of hearing." This the
applicant alleges in circumstances when it is common cause that she defended the
action in January 2023 and filed a plea.
D ISCUSSION
[7] Both the parties accepted that on the 19 October 2023, as per the notice of
set down , the respondent intended to move a summary judgment application at the
date of the hearing. The practice note uploaded to case lines informed the Judge
thereof and, the application before the Judge was in fact an application for summary
judgment. It is common cause between the parties that the applicant was entitled
and did serve a plea, by agreement.
[8] The procedural background on the papers indicates that due to the
applicant's delay in filing a plea, the respondent initially and on the 21st of June 2023
proceeded to apply for default judgment relying on a notice of bar. The applicant
received the set down for the application for default judgment in terms of rule 31 (5).
This notice of set down had a few minor typographical errors inter alia, the date upon
which it was signed was unclear. None the less the application was abandoned , and
the respondent accepted an unsigned plea served via email on the 28th of June
2023. This arrangement was brought to the Judges attention in the application for
summary judgment.
[9] The template used for the notice of set down for the default judgment was
used by the respondent's attorney for the notice of set down in the summary
judgment. In consequence the same typographical errors appear in the same notice
including, the use of the words summary judgment and default judgment, however,
including, the use of the words summary judgment and default judgment, however,
notwithstanding the errors the applicant stated that she received a set down for the
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summary judgment application and she wishes to rescind an order granted in terms
of summary judgment in this application. After receiving the set down notice, the
applicant took no further procedural steps catered for in terms of rule 32. This
included any intention on the 26 September 2023, to oppose the application after
the receipt of the set down. This inaction is to be considered against the fact that
she states that her husband is a practising attorney. She, on her version, rather
alleges to have elected to be at court on the 19 October 2023 but, due to a mishap
was in the incorrect court and by the time she found the right court with her attorney,
judgment had already been granted. The circumstances of the mishap are not
confirmed by her attorney under oath and nor was the Judge approached by her
attorney to explain the situation.
[1 O] Be that as it may, it appears that the draft order for the default judgment was
erroneously handed up and signed by the Judge instead of the summary judgment
draft order. Absent this error, the terms of the order and what the Court was asked
to grant remain undisturbed. On the procedural facts, no application for default
judgment served before the Judge on the 19 October 2023 nor could it have been
taken on the facts. Therein lies the error, a mistake common to both parties on the
common cause facts, the wording "default judgment". Unfortunately, this is not the
error relied on by applicant as is envisaged in terms of rule 42(1)(b). She contends
that the error is that the Judge should not have entertained the summary judgment
as she had not received the summons personally and that her plea set out a triable
defence. This is a basis catered for in rule 42(1)(a) and not 42(1)(b). The applicant
has not made out a case for rule 42( 1 )(b) on the papers.
[11] The applicant's relief in prayer 1 of this application speaks to the rescission
of a summary judgment order which is incorrect ex facie the order itself. Therefore,
of a summary judgment order which is incorrect ex facie the order itself. Therefore,
the applicant seeks the incorrect relief on the incorrect basis. The basis of rule
42(1)(b) however, rather addresses that a variation of the order, on the common
cause intend and procedural steps accepted by both parties was taken, should be
corrected. The respondent's Counsel argued the point and requested the Court to
mero motu entertain the variation to ensure that the Judge's intention is reflected on
the order. The applicant's legal representative made no attempt to reply.
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COSTS
[12] It is trite that costs follow the result however, considering the procedural
mishaps, in particular the respondent's attorneys at the material time, this Court
exercises its discretion, and each party is to pay their own costs.
[13] The following order:
1. The application is dismissed.
2. The words of "default judgemenf' as they appear on the order of the
19 October 2023 before Kumalo J is varied to read "summary
judgement."
3. Each party to pay their own costs.
Appearances:
For the App licant attorneys:
For the Respondent:
L.A. R iTIEF
Judge of the High Court
Gauteng Division
Attorneys: M otloba Attorneys (M r BW M otloba)
Cell: 083 347 4842
Email:
Adv:
Email:
bwmotloba@mo tloba-attorneys.co .za
Adv. S McTurk
Adv.shaun@mcturk.co.za
Date of hearing:
Date of judgment:
12 August 2025
15 August 2025
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