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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: A32/2025
In the matter between:
GLEN FAURE INTERNATIONAL CONSULTANCY CC Appellant
and
MARLON MARINUS Respondent
Coram: Saldanha J et Francis J
Heard: 4 June 2025
Delivered: 3 September 2025
ORDER
1. The appeal is dismissed.
2. The appellant is directed to pay respondent’s costs on an attorney -client scale
with counse l’s costs to be taxed on scale B.
JUDGMENT
Francis, J:
Introduction
[1] This is an appeal against a judgement handed down by the Learned Magistrate
in the Magistrates court for the district of the City of Cape Town, sub-division Goodwood
(‘the Goodwood Magistrates Court ’) on 12 November 2024 in which an application
lodged by Appellant for the rescission of a default judgment brought in terms of Rule
49(1) of the Rules of the Magistrates’ Court, was dismissed. The Rule reads as follows:
“(1) A party to proceedings in which a default judgment has been given, or any
person affected by such judgment, may within 20 days after obtaining knowledge
of the judgment serve and file an application to court, on notice to all parties to
the proceedings, for a rescission or variation of the judgment and the court may,
upon good cause shown, or if it is satisfied that there is good reason to do so,
rescind or vary the default judgment on such terms as it deems fit: Provided that
the 20 days' period shall not be applicable to a request for rescission or variation
of judgment brought in terms of sub-rule (5) or (5A).” (Emphasis added.)
[2] The term ‘good caus e’ in the context of a rescission judgement is generally
accepted to mean that the applicant must provide a reasonable explanation for its
default, must show that that the application is made bona fide and not with the intention
of merely delaying the matt er, and that there is a bona fide defense to the claim which
prima facie has some prospect of success in the sense that if established at the trial, it
would entitle the applicant to the relief requested (see, Grant v Plumbers (Pty) Ltd
1949 (2) SA 470 (O) at 476 -7, and Colyn v Tiger Foods and Industries Ltd t/a
Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA)).
[3] Good cause includes but is not limited to the existence of a substantial defence
(Silber v Ozen Wholesalers (Pty) Ltd 1954(2) SA 345 (A) at 352G). It is therefore
necessary to determine whether there is a satisfactory explanation of the delay, and
necessary to determine whether there is a satisfactory explanation of the delay, and
whether the appellant raised a bona fide and reasonable defence.
[4] The application for rescission was brought timeously within the 20 -day period
prescribed in Rule 49 (3). It was successfully opposed by the respondent (referred to
interchangeably as ‘Marinus’ or ‘respondent’) who also opposes this appeal.
Background facts
[5] The appellant, represented by its sole member, Glenville Lester Faure (‘Faure’),
and Marinus entered into a written agreement on 22 July 2020. Although not a model of
clarity, it is not disputed that the gist of the agreement was to the effect that Marinus
would , on signature of the agreement, invest an amount of R150 000 and would receive
a return on his investment of between 20% to 30% to be repaid on/or before a three-
month period. Furthermore, as an investor and associate, Marinus would be involved in
all transactions which the appellant’s group of companies was involved in at the date of
signature of the agreement, including the importation and exportation of Yamaha Motors
and the export of win es.
[6] Marinus paid over the sum of R150 000 to the appellant, but he did not receive
payment of his initial capital contribution or the return (interest) thereon within the
agreed period of three months. Instead, he received a total payment of R6000; R5000
on 28 January 2021 and R1000 on 30 December 2021.
[7] On 31 January 2022, a letter of demand was delivered to Faure via electronic e-
mail at g[...] (‘the e -mail address’), in terms of which payment in the sum of R189 000
was demanded. The aforesaid amount constituted the outstanding capital investment
and the promised return thereon. On that same day, Faure responded to the letter of
demand via an e-mail from the e -mail address which stated that he was in Angola and
that Marinus could contact appellant’s attorney who had been mandated to deal with
this matter.
[8] Appellant failed to make payment in terms of the letter of demand and summons
was subsequently issued in the Goodwood Magistrates C ourt during July 2022. After
several unsuccessful attempts to effect service, Marinus applied for an order to serve
the summons and particulars of claim on the appellant in Angola at the email address.
An order, as sought, for edictal citation and substituted service was subsequently
granted, and th e summons and particulars of claim was served on appellant at the e -
mail address on 8 August 2023.
[9] No notice of intention to defend was filed a nd Marinus applied for default
judgement which was granted on 6 December 2023.
[10] On 13 February 2024, the default judgement was served on appellant at the e -
mail address. On receiving this e -mail, Faure consulted appellant’s current attorney of
record on 16 February 2024, and a rescission application was filed soon thereafter.
[11] In its application for rescission, appellant filed an affidavit by Faure in which he
stated there was no delay in making the application for rescission once he was alerted
of the default judgment. Appellant had a good reason for not entering an appearance to
defend and had a bona fide defense to respondent’s claim. Faure had not seen the
summons and particulars of claim on the day it was served by email . Respondent had
no legitimate claim against the appellant because contrary to their agreement, Marinus
was not actively involved in the business of appellant as he was obliged to, and his
investment was not guaranteed but was subject to everything going ‘to plan’. There was
‘a Force Majeure’ as the company which appellant had done business with in China
could not deliver due to the Covid-19 global pandemic and appellant lost its deposit.
[12] Marinus filed an answering affidavit in which he joined issue with all the
submissions advanced in appellant’s founding affidavit. He disputed that appellant was
not in willful default in failing to enter an appearance or that it had a valid bona fide
defense that raised a triable issue. He denied that repayment to him of his investment
capital (and the return thereon ) was contingent on the success of appellant’s business
operations in China and/or on Marinus’s involvement in the business operations of the
operations in China and/or on Marinus’s involvement in the business operations of the
appellant and its group of companies. Marinus described in some detail his contribution
as an investor. For example, he spent months assisting appellant to re-design its supply
chain in order to acquire high quality products at lower cost, and he enhanced
appellant’s business operations relating to the purchase and re -labelling of wines. He
was not remunerated for his involvement in appellant’s business operations. Nor was he
reimbursed for any disbursements made on its behalf. According to Marinus, his
involvement in the business operations of appellant was not for the purpose of growing
his investment but merely to assist appellant in the latter’s business transactions.
Furthermore, Marinus disputed appellant’s version relating to the company in China.
Marinus stated that he was informed by Faure that a sale was entered into with a
Japanese company and the goods were delivered to Durban but due to an error had to
be transported by land . A s a consequence, the profit from the sale was lost and
appellant was in the process of instituting an action against the vessel responsible for
the error.
[13] Appellant raised a further defense in the heads of argument filed on its behalf in
the rescission application . It argued that the judgement granted w as void ab origine
(from the beginning) because the Magistrate had granted it based on a copy of the
agreement. This was contrary to Rule 12 (6) of the Magistrates Court Rules (‘the Rules’)
which required an original agreement to be filed with the request for default judgment or,
failing this, and an affidavit stating why the original could not be produced.
[14] The application for rescission of default judgment was dismissed. The Magistrate
found, in essence, that appellant had failed to provide a satisfactory explanation for not
entering an appearance to defend, and that it had failed to establish a bona fide defense
to respondent’s claim. Appellant’s argument that the default judgment was void from the
beginning was also dismissed.
[15] In its notice of appeal, appellant raised 7 grounds on which it alleges that the
Magistrate had erred in not granting the rescission application. The notice states as
follows:
follows:
“1. That the (Magistrate) erred in her interpretation of rule 12(6) of the
Magistrates Court rules as not peremptory according to her judgment.
2. That the (Magistrate) erred in her judgment’s ruling that a non -compliance
with rule 12 (6) of the Magistrates’ Court rule is voidable instead of void.
3. That the (Magistrate) erred in her understanding and interpretation of
investment principles.
4. That the (Magistrate) erred in her understanding about argument of void
ab origine used for the first time in the Heads of Argument by the
Appellant.
5. That the (Magistrate) erred by failing to understand that a fatality defective
procedural error renders it unnecessary for the Appellant to show good
cause.
6. That the (Magistrate) erred in her interpr etation that the Appellant
instructed the Honourable Court to disregard the Agreement.
7. That the (Magistrate) erred in her judgment that the Appellant has
presented an argument that has no existence of triable issues.”
Discussion
[16] From the notice of appeal, it is apparent that some o f the grounds of appeal are
repetitive or vaguely formulated . Four of the 7 grounds of appeal relate to the belated
argument before the Magistrate that the judgment was void from the beginning for the
alleged lack of compliance with Rule 12 (6) of the Rules. The remaining 3 grounds
challenge the Magistrates finding that appellant did not raise any triable issue allegedly
because of her mistaken interpretation of the agreement.
[17] In the notice of appeal (and its heads of argument ), appellant also seeks to
impugn the reason s underpinning the Magistrate’s judgment. It is trite that an appeal
lies against the judgment or order of the court below and not against the reasons for
judgment; an appeal court is not bound by those reasons. The principal function of an
appellate court is to determine independently on the record and applicable law, whether
the order itself is sustainable. The authorities make it clear that where the order is
correct, it will not be set aside because the reasons advanced by the court below were
unsound (see, for example, Administrator, Transvaal and Others v Theletsane and
Others 1991 (2) SA 192 (A)I – 197 B). If the order can be supported on other grounds
apparent from the record, the appeal will be dismissed ( cf. S v Kubeka 1982 (1) SA 534
(W)).
[18] An appellant is generally bound by the grounds set out in its notice of appeal a s
these grounds define the issues for determination by the appeal court. A notice of
appeal is not a mere formality but delimits the scope of the appeal (see, Van Rensburg
v Van Rencburg 1963 (1) SA 505 (A) ). In its notice of appeal, appellant does not
challenge the Magistrate’s finding that it failed to provide a satisfactory explanation for
not entering an appearance to defend and was in fact in willful defaul t. Thus, the
appellant’s submissions in this appeal challenging the Magistrate’s findings in this
regard do not fall within the scope of this appeal.
[19] Accordingly, the issues that have to be decided by th is Court in terms of the
notice of appeal are, firstly, whether the Magistrate erred in her understanding and
application of Rule 12 (6) of the Rules and , secondly, whether she erred in her
conclusion that the defense raised by appellant against the merits of respondent’s claim
was not bona fide in the sense that it did not raise any triable issue. I now consider each
issue in turn.
non-compliance with Rule 12 (6) of the Rules
[20] Appellant seeks recission of the default judgment on the basis that it was granted
contrary to Rule 12 (6) of the Rules. According to appellant, respondent did not file the
original agreement or the requisite affidavit when making application for default
judgment. In the circumstances, so it was argued, the application for default judgment
was procedurally irregular which rendered the default judgment void from the beginning.
[21] It is indeed so that Rule 12 (6) places specific duties on a plaintiff to s ubmit
necessary documentation and evidence in support of an application for default judgment
and it is incumbent on the person granting judgment to ensure compliance with this
Rule before granting default judgment. In my view, t he failure to comply renders the
judgment defective. However, although a judgment granted in these circumstances will
have been granted erroneously, it is not automatically void or a nullity . The instances
when a judgment is void are circumscribed. As Grossskopf JA noted in Tödt v Ipser
1993 (3) SA 577 (AD) at 587 A-D, according to the common law authorities, judgments
are void in only three types of cases – where there is no proper service, wh ere there is
no proper mandate, or where the court lacks jurisdiction. None of these circumstances
are applicable in the matter before this Court.
[22] The principal difficulty which appellant faces with advancing this defense is that it
was no t pleaded. Appellant made no allegation in its founding or replying affidavit that
the request for default judgment did not comply with Rule 12 (6). It only raised this issue
for the first time in the heads of argument filed on its behalf in the rescission application .
This is im permissible. As a general rule , a case must be decided on issue s that arise
from the pleadings, not from new arguments raised later in the heads of argument. The
pleadings define the issues between the parties and what each side must meet in
pleadings define the issues between the parties and what each side must meet in
evidence. Heads of argument are not pleadings; they are written submissions t o assist
the Court. While heads of argument may expand on legal arguments or interpretations
that flow from the pleadings and evidence, they cannot introduce a new case (see,
Minister of Safety and Security v Slabbert 2010 (2) SA 552 (SCA)).
[23] Ordinarily, a litigant may raise a new point in heads of argument if it was not
made in the pleadings if it is a pure question of law that does not require new evidence
or unless the other party consented (expressly or tacitly) to the issue being argued. If
the i ssue was fully ventilated in evidence, and both parties led evidence on the point
(even though it was not pleaded), a court may treat it as if it were pleaded. This is so
because the courts are generally expected to apply the law correctly to the facts bef ore
them (see, CUSA v Tau Ying Metal Industries 2009 (2) SA 204 (CC)).
[24] In this matter, however, the basis on which appellant contends that the judgment
is a nullity does not flow from the record . As counsel for the respondent correctly
pointed out, it is unclear on the evidence before this Court whether or not the original
agreement was, as a matter of fact, filed with the request for default judgment. Appellant
was obliged to set out fully in its founding affidavit the facts on which it relied on to
support its defense that the judgment was granted in error (see, Ramodike v Mokeetsi
Trading Store 1955 (2) SA 169 (T)) , and r espondent ought to have been given the
opportunity to answer this allegation and deal with the alleged non -compliance with
Rule 12 (6).
[25] In my view, a ppellant’s belated defense that the default judgment was
procedurally defective is without merit. It was not the pleaded case of the appellant in
the rescission application, and this defense is not borne out from the record before this
Court.
bona fide defense
[26] From its founding affidavit, appellant’s argument that it has a bona fide defense is
based essentially on the submission that it was excused from paying respondent
because Marinus breached the agreement by not being actively involved in its business
to justify repayment of his investment (and the return thereon ) and, in addition, the
COVID 19 pandemic constituted a force majeure as the company in China could not
COVID 19 pandemic constituted a force majeure as the company in China could not
deliver the goods that the applicant had ordered and the deposit was lost. According to
appellant, r espondent’s investment was not guaranteed but a promise that Marinus
would be repaid if everything went according to plan.
[27] Apart from a bare denial, appellant failed in its replying affidavit to respond
adequately or at all to respondent’s factual submissions relating to Marinus involvement
in the business operations of appellant’s group of companies or his denial that appellant
was excused from paying because the business in China had not gone according to
plan in light of the Covid-19 pandemic.
[28] On the evidence before this Court , I am not persuaded that appellant has
disclosed a bona fide defense that if established at trial would entitle it to the relief
asked for. Nor am I satisfied that appellant’s bare denial of respondent’s factual
averments give rise to a genuine dispute of fact entitling appellant to proceed to trial.
[29] The agreement was entered into between the pa rties in July 2020 during the
COVID 19 pandemic. For appellant to succeed in the defense of force majeure , the
happening or event relied as the excuse for non -performance must have been
unforeseeable with reasonable foresight and unavoidable with reasonable care (see,
South African Forestry Company Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA)).
Reasonable foreseeability of the event that causes impossibility of performance may
have the result of ruling out vis major or indicating that the party tacitly accepted the risk
of impossibility resulting from such event (see , Nuclear Fuels Corporation of SA (Pty)
Ltd v Orda AG 1996 (4) SA 1190 (A)). As counsel for respondent so coge ntly argued,
appellant’s defense of force majeure must fail given that the event of COVID 19 was
already taking place at the time of the conclus ion of the agreement and yet appellant
nonetheless promised to repay the investment within three months.
[30] The onus of proving impossibility of performance rests on appellant. However, in
[30] The onus of proving impossibility of performance rests on appellant. However, in
its pleadings t here are no allegations as to the foreseeability and unavoidability of
performance, in what manner performance was rende red impossible, to what extent
performance was rendered impossible and for how long, what the financial position of
appellant was after the pandemic, or any other factor relevant to this alleged defense. At
best for appellant, the Covid-19 pandemic may have made it uneconomical or no longer
commercially viable for appellant to carry out or perform its financial obligation in terms
of the agreement, but this does not mean that performance ha s become impossible or
constitutes a basis to be excused fr om performance (see , Unibank, Savings and
Loans Ltd (formerly Community Bank) v ABSA Bank Ltd 2000 (4) SA 191 (W) ;
Freestone Property Investment (Pty) Ltd v Remake Consultants CC and Another
(2020/29927)). In any event, the COVID 1 9 pandemic ha d long passed when
respondent issued the letter of demand, and one wonders on what basis appellant could
reasonable argue that performance was not then possible. Certainly, t here is no
averment by appellant that it is no longer trading or is unable to repay respondent.
[31] A rescission application is ordinarily aimed at setting aside a judgment granted
by default in order to afford the applicant an opportunity to defend the matter. It is ,
therefore, not a proceeding for final relief but an interlocutory step . Because the relief
sought in a rescission application is generally interlocutory in nature, a court is merely
concerned with whether or not the applicant has shown a prima facie defense, not
whether the defense is established on probabilities (see Gangat v Akoon [2021]
ZAGPJHC 431 (21 December 2021)). Thus, for ordinary rescission of default judgment
applications , the applicant needs only satisfy the good cause test and establish a prima
facie defense.
[32] Counsel for appellant argued that this matter should be referred to trial because
of a dispute of fact relating to the interpretation of the agreement. However, any dispute
of the fact that arises must be genuine. In this matter, appellant has not disputed the
contents of the agreement or the validity thereof, be it the copy or the original. It did not
contents of the agreement or the validity thereof, be it the copy or the original. It did not
raise any factual issue relating to the interpretation of the agreement in the founding
affidavit or reply. Apart from a bare denial, respondent has offered nothing to controvert
respondent’s version that Marinus was involved in, and contributed to, appellant’s
business operations. A ppellant has not disputed that the amount claimed is owing to
respondent but has offer ed an excuse why it ought not to be paid . On the facts before
this Court, these defenses lack both factual and legal substance. In my view, there is no
genuine factual dispute and, as such, it cannot be legitimately argued that the appellant
has proffered a bona fide defense; a sincere, good faith belief that it does not owe the
debt.
[33] In the heads of argument, appellant refers to a novus actus interveniens .
However, no averments to support a defense of novus actus interveniens are pleaded
by the appellant in the rescission application and this defense is not applicable nor
relevant in this appeal. This legal principle is, of course, a separate and distinct from
force majeure and usually has application in delict and in criminal liability.
[34] In summary, having regard to the record , the grounds of appeal , and the
applicable law, the appeal must, in my view, fail. There was no challenge by appellant to
the Magistrates order that there was no good explanation for the delay, the defense that
the judgment was granted contrary to rule 12 (6) is not evident from the record and was
not pleaded by appellant and, f inally, appellant has not raised any legitimate triable
issue that necessitates that necessitates being referred to trial.
Costs
[35] In so far as the issue of costs is concerned, respondent has urged this Court to
grant an order of costs on a punitive scale given the conduct of appellant in these
proceedings. The granting of a punitive cost order is unusual and is generally ordered
not merely because the party loses but because their conduct justifies censure. Typical
grounds would include bringing a claim or defense without any real prospect of success,
misconduct in the proceedings and unr easonable or stubborn opposition by a party.
[36] In this matter, I am inclined to agree that a punitive cost order is justified. The
manner in which appellant conducted this litigation right from the o utset appears to me
to have been designed to delay the inevitable and to frustrate the respondent from
to have been designed to delay the inevitable and to frustrate the respondent from
being paid. This is perhaps most starkly illustrated by the fact that appellant did not
challenge the Magistrate’s finding that it was in willful default. One also got the distinct
impression that the heads of argument attempted to supplement an unarguable case by
introducing new causes of the action that were not pleaded. Indeed, the defense of
novus actus interveniens appeared for the first time in the heads of argument filed on
behalf of appellant in t his appeal. Although referred to in the heads of argument, this
defense was not pertinently argued ; n ot surprising, since this legal principle has no
application to this case.
[37] Given the nature of this matter and the various legal issues that were raised
(some unnecessarily) by appellant, I am of the view that counsel ’s costs on scale B are
justifiable.
ORDER
In the circumstances, I would propose the following order:
1. The appeal is dismissed.
2. The appellant is directed to pay respondent’s costs on an attorney -client
scale with counsel ’s costs to be taxed on scale B.
_____________________
FRANCIS, J
Judge of the High Court, Cape Town
I agree, and it is so ordered
_____________________
SALDANHA, J
Judge of the High Court, Cape Town
APPEARANCES
Counsel for the Appellant: Adv Sivuyile Mbobo
sivu@capebar.co.za
Instructed by: Kili Inc Attorneys
Mr Lennox Kili
Counsel for the Respondent: Adv Sune Bosch
sbosch@capebar.co.za
Instructed by: Steyn Attorneys
Mr Ruben Steyn