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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 8964/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
12 August 2025
In the matter between:
BIG ROCK CONSTRUCTION 12 CC Applicant / Defendant
Registration Number: 2010/035324/23
and
KAAN DEVELOPMENTS 2 CC Respondent / Plaintiff
Registration Number: 2005/035232/23
JUDGMENT
GOUWS, AJ
INTRODUCTION
[1] The respondent obtained a default judgment against the applicant on
30 November 2022 in terms whereof the applicant was ordered to pay
the respondent an amount of R1 500 000.00 together with interest and
costs on a scale as between attorney and client.
[2] The order was granted by the Honourable Mr Justice Vorster AJ.
[3] The applicant applies for rescission of this default judgment. It alleges
that the application is predicated upon rule 31(2)(b), alternatively rule
42(1)(a), or the common law. In prayer 3 the applicant also seeks an
order that any execution process issued in lieu of the judgment be set
aside (sic).
[4] The applicant contends that the summons never came to its attention
seeing as it was never served on the registered address of the
applicant. Resultantly, so the allegation goes, the judgment was
erroneously sought and granted in terms of Uniform Rule 42(1)(a).
[5] The Sheriff’s return of service is included as part of the applicant’s
founding affidavit. Given the relevance of the case put forward by the
applicant, the salient extract from the return of service is restated:
“On this 24 th day of February 2022 at 10:39 I served the
combined summons in this matter upon MRS VAN ZYL,
RECEPTIONIST OF SILVER CROSS SCHOOL WEAR.
Apparently a responsible person and apparently not less than 16
years of age, and in control of and at the chosen domicilium
citandi et executandi of BIG ROCK CONSTRUCTION 12 CC at
2[...] J[...] H[...] STREET, PRETORIA
NORTH, 0182 and by handing to the PARTY SERVED a copy
thereof after explaining the nature and exigency of the said
process RULE 4(1)(a)(iv).
THE DEFENDANT HAD LEFT THE GIVEN ADDRESS AT
PRESENT ADDRESS IS UNKNOWN. NO NAME OR
SIGNBOARD COULD BE FOUND OF THE DEFENDANT”.
[6] In support of its allegation that the summons was never served at the
correct address, the deponent to the founding affidavit explains that the
address of Silver Cross School Wear (which is referenced in the return
of service) is not at 2[...] J[...] H[...] Street, Pretoria North, but rather at
2[...] E[...] Street, Pretoria North. It is stated that Silver Cross School
Wear is a well-known school wear store in Pretoria North where the
deponent happens to purchase his children’s school wear.
[7] It appears common cause on the papers that the 2[...] J[...] H[...]
Street address, which was admittedly the then chosen domicilium
citandi et executandi address of the applicant, is one street to the West
of Eeufees Weg, and is a residential property.
[8] The applicant also records that it has never operated from 2[...] E[...]
Street.
[9] Having regard to the content of the return, and incorporating the
evidence of the applicant, that 2[...] J[...] H[...] Street and Silver Cross
School Wear are at separate locations, it becomes unclear where the
Sheriff in fact served the summons. It may have been served at 2[...]
J[...] H[...] Street, or at Silver Cross School Wear, but according to the
applicant this is not the same premises.
[10] In response, the respondent provided an explanatory affidavit by the
Sheriff. The affidavit of Mr Coenie Coetzer, a male Deputy Sheriff, and
who allegedly served the summons, confirms, mechanically so, that
the summons was served on 24 February 2022 on a Mrs van Zyl, the
receptionist of Silver Cross School Wear at 2[...] J[...] H[...] Street,
Pretoria North. I remark that this response is mechanical because it
does no more than confirm the exact language of the return of service.
[11] This explanatory affidavit by the Sheriff does not address the issue. It
does not, to any extent, deal with the applicant’s allegation that Silver
Cross School Wear is not situated at 2[...] J[...] H[...] Street, Pretoria
North, as asserted by the applicant.
[12] The failure to deal with this aspect is peculiar, particularly in light of the
fact that the affidavit of the Sheriff was presumably presented for no
other reason than to address the applicant’s contention that Silver
Cross School Wear does not operate at 2[...] J[...] H[...] Street, but
rather at 2[...] E[...] Street.
DISCUSSION
[13] On the face of the affidavits filed of record, there would appear to be a
dispute as to whether the sheriff served the summons at the applicant’s
registered address at 2[...] J[...] H[...] Street, Pretoria North.
[14] During argument the respondent’s counsel persisted with the
proposition that the applicant did in any event receive notice of the
application for default judgment, because the notice of set down was
allegedly served on the applicant. It was however correctly conceded
by the counsel for the respondent that service of the notice of set down
could not cure a failure to have served the summons for purposes of
supporting a default judgment.
[15] Reliance was also placed by the respondent on a letter dated
9 February 2024, where attorney Daan Beukes, acting for the applicant,
enquires from F van Wyk Incorporated whether a judgment had been
taken under case number 8964/2022 (the current matter). The basis
for the enquiry is stated as being that the attorney Beukes received a
mandate to act in case number 63498/2021, and that in the file received
from his predecessor, he came upon the documentation “which
indicated that a judgment was given / taken against Big Rock
Construction 12 CC”. The respondent accordingly contends that the
applicant and his erstwhile attorney must have had knowledge of the
pending action prior to this letter (and presumably had received the
summons). Essentially the respondent’s counsel argues, if I correctly
surmised, that one may infer from this letter that the applicant’s
previous attorney was in possession of the summons, meaning it had
to have been served.
[16] I do not agree. No reference is made in this letter to what
documentation was in possession of Mr. Beukes or his predecessor,
and one cannot infer, as the respondent seeks to do, that the
documentation referred to included a summons. This proposition is
furthermore convincingly gainsaid by the fact that attorney Beukes, on
24 June 2024, in a further e-mail to F Van Wyk Incorporated, requested
a copy of the summons. The letter of 9 February 2024 is accordingly
not evidence that the applicant’s erstwhile attorney was in possession
of the summons.
[17] The respondent’s mechanical repetition of its allegation that the
summons was served at the registered address at 2[...] J[...] H[...]
Street, Pretoria North, without clearing up the issue raised by the
applicant relating to the location of Silver Cross School Wear, amounts
to nothing more than a bare denial of the applicant’s allegation. This
bare denial is particularly objectionable under circumstances where the
allegation could easily be cleared up by way of an explanation by the
Sheriff. The proffered explanation is wholly remiss, and this justifies
the drawing of a negative inference against the respondent. (For an
exposition on the court’s power to draw a negative inference, see: Elgin
Fireclays Limited v Webb 1947 (4) SA 744 at 749-750)
[18] A bare denial of the applicant’s allegations in his affidavit will not in
general be sufficient to generate a genuine or real dispute of fact. It
has been said that the court must take a “robust, common sense
approach” to a dispute on motion and not hesitate to decide an issue
on affidavit merely because it may be difficult to do so. (In this regard
see Roomhire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949
(3) SA 1155 (T) at 1163 and 1165; also Soffiantini v Mould 1956 (4)
SA 150 (E) at 154G-H).
[19] In light of the above, it is the finding of this court that the respondent
has provided insufficient evidence to dispel the applicant’s allegation
that the summons was never served on it, and to raise a genuine
dispute of fact on this aspect.
[20] In Lodhi 2 Properties Investments CC and Another v
BondevDevelopment (Pty) Ltd (2007) (6) SA 87 (SCA), the
Supreme Court of Appeal, in a majority judgment handed down by
Streicher JA, held that:
“[24] …Where notice of proceedings to a party is required and
judgment is granted against such party in his absence without
notice of the proceedings having been given to him such
judgment is granted erroneously. That is so not only if the
absence of proper notice appears from the record of the
proceedings as it exists when judgment is granted but also if,
contrary to what appears from such record, proper notice of the
proceedings has in fact not been given. That would be the case
if the sheriff’s return of service wrongly indicates that the
relevant document has been served as required by the rules
whereas there has for some or other reason not been service of
the document. In such a case, the party in his favour the
judgment is given is not entitled to judgment because of an error
in the proceedings. If, in these circumstances, judgment is
granted in the absence of the party concerned the judgment is
granted erroneously.”
[21] I also have little doubt that my brother Vorster, AJ, at time of
determining the application for default judgment, would have made
further inquiry had he been made aware of the allegation that Silver
Cross School Wear was not located at 2[...] J[...] H[...] Street, Pretoria
North. I venture to conclude that, had such an inquiry yielded the
deficient explanation proffered to this court by the Sheriff and the
respondent, default judgment would not have been granted.
[22] In 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 (2021) (11) BCLR 1263 (CC),
Khampepe J, writing for the majority, held the following instructive
dictum:
“[62]…he has also failed to demonstrate why the order was
erroneously granted. Ultimately, an applicant seeking to do this
must show that the judgment against which they seek a
rescission was erroneously granted because ‘there existed at the
time of its issue a fact of which the Judge was unaware, which
time of its issue a fact of which the Judge was unaware, which
would have precluded the granting of the judgment and which
would have induced the Judge, if aware of it, not to grant the
judgment.’ ”
[23] On the test for recission of an order erroneously granted as, espoused
in Zuma supra , and read with the dictum in Lodhi 2 Properties
Investments to which I have adverted above, I am satisfied that the
applicant has brought itself within the jurisdictional purview of rule
42(1)(a) of the Uniform Rules of Court.
[24] This leaves the aspect of inordinate delay.
[25] An application under rule 42(1)(a) must be brought within a reasonable
time. The respondent contends that the applicant had not met this
threshold.
[26] The explanation of the applicant for the delay from 9 February 2024 up
to institution of the proceedings for recission may be summarized thus:
[26.1] The applicant’s attorney, Mr. Daan Beukes, on 9 February
2024, wrote a letter to Van Wyk Incorporated, seeking
clarification on whether any judgment had been granted
against the applicant under case number 8964/ 2022.
[26.2] On 15 February, Mr Daan Beukes wrote a follow-up email again
requesting a reply to the enquiry.
[26.3] A further follow-up letter was written by Mr Beukes on 18 June
2024, referencing the previous correspondence, and recording
that he had not received any response to this correspondence.
[26.4] It appears that, on 24 June 2024, F van Wyk Incorporated
reverted in an email where Mr Beukes was requested to
provide a notice of appointment as attorney of record.
[26.5] On 24 June a further email was written by Mr Beukes, again
requesting a copy of the summons and particulars of claim in
order to “enable us to cite the parties correctly”.
[26.6] On 12 July 2024, in an email under hand of one Megan Janse
van Rensburg, ostensibly of F Van Wyk Incorporated, Mr.
Beukes was again requested to provide the notice of
appointment as attorney for the applicant.
[26.7] On 15 July, Mr Beukes indicated, in a further email to F Van
Wyk Incorporated that:
“The whole point of obtaining a copy of the summons is to
be able to quote the correct case number on the notice of
appointment.
…
Kindly provide us with the correct case number should you
have any objection in providing us with a copy of the
summons”.
[26.8] Ultimately, the case details were only provided on 16 July 2024.
The information provided did not indicate in what court the
summons was issued out of, prompting yet a further enquiry
from Mr Beukes on 17 July 2024 requesting this information.
[26.9] It appears as though the invitation to Caselines only occurred
somewhere around 18 July 2024.
[26.10] The application for rescission was issued on 24 July 2024.
[27] From the above exposition I am satisfied that the applicant acted with
the necessary expediency. If anything, it is the attorney for the
respondent’s seemingly arbitrary, and prolonged refusal to have
provided the applicant’s attorney with the requested case information,
that resulted in the delay now complained of.
[28] In the result, I am satisfied that a proper case has been made out for
rescission of the default judgment under rule 42(1)(a) of the Uniform
Rules of Court.
[29] The above finding obviates the need to deal with the evidence of the
applicant where it relates to an entitlement to rescission of judgment
under rule 31(2)(b) of the Uniform Rules of Court.
[30] Pryer 3 to which I have previously adverted, which I accept relates to
execution process undertaken after default judgment, is not supported
by any evidence before me. The applicant’s counsel conceded this
much.
COSTS
[31] There is no reason why costs ought not follow the result in this
application. The respondent persisted with its opposition to the
application, despite having been made aware of the difficulty raised
regarding service of the summons.
[32] The respondent has not adequately dealt with this aspect, despite
ample opportunity to do so, resorting to an unhelpful and mechanical
regurgitation of the language of the return of service, without at all
addressing the core issue raised by the applicant. The court has
already drawn a negative inference against the respondent in this
regard. Against the aforesaid background, I also do not consider the
opposition to this application reasonable. Considering the nature of
the matter, the quantum that it involves, and its relative degree of
complexity, I am inclined to grant costs to the applicant on tariff scale
B as contemplated in Rule 69. In the result, the court grants the
following order:
[1] The default judgment of the Honourable Mr Justice Vorster, AJ, dated 30
November 2022, is hereby set aside.
[2] The applicant is granted leave to defend the matter and is hereby
afforded 20 (twenty) days from date of this order to file its plea and
counterclaim (if any).
[3] The respondent is ordered to pay the costs of this application on tariff
scale B.
SG GOUWS
ACTING JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES:
FOR APPLICANT: ZF Kriel instructed by Daan Beukes Attorneys
daan@daanbeukes.co.za
FOR RESPONDENT: SN Davis instructed by F van Wyk Attorneys
megan@vanwyklaw.co.za
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