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In the matter between
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
THABO JUSTICE MOKOENA
and
BONGANIDUNCANTSHABALALA
In re:
In the sequestration application between
BONGANIDUNCANTSHABALALA
and
THABO JUSTICE MOKOENA
Not reportable
Case no: 5566/2021
APPLICANT
RESPONDENT
Case no: 5566/2021
APPLICANT
RESPONDENT
Neutral citation: Mokoena v Tshabala/a (5566/2021) [2025] ZAFSHC 273 (28 August
2025)
Coram : Mhlambi ADJP
Heard: 7 August 2025
Delivered: 28 August 2025
Summary : Application for rescission of provisional and final sequestration orders - ss
9(4A), 11 (1) and 11 (2A) of the Insolvency Act 24 of 1936 - failure to serve petition on
debtor personally.
2
ORDER
The application is dismissed with costs on a party and party scale including counsel's fees
on scale C.
Mhlambi ADJP
Introduction
JUDGMENT
[1] A provisional sequestration order was granted against the applicant on 28 November
2024, and the final order was issued on 9 January 2025. On 24 March 2025, the applicant
filed an application for the rescission of both the provisional and final sequestration orders
in the following terms:
'1. That condonation be granted to the applicant for the late filing of the application for rescission of
the provisional (granted 28/11/ 2024 as well as the final sequestration (granted 9/1/2025) orders
granted against the applicant;
2. That the Final Sequestration Order, granted 9 January 2025, for the final sequestration of the
applicant's estate be rescinded;
3. That the Provisional Order of Sequestration, granted 28 November 2024-for the provisional
sequestration of the Applicant's estate, be rescinded;
4. That leave be granted to the Applicant, to file a notice of intention to: Oppose to; the
Respondent's (Applicant in Sequestration application) Application for Sequestration, within five (5)
days from date of this order;
5. Respondent to pay the cost of this Application only if the Application is opposed;
6. Further and/ or alternative relief.'
[2] The application is opposed on the basis that the applicant has adopted a shotgun
approach and has failed to demonstrate that he is entitled to the relief sought.
Background
[3] The respondent was awarded a costs order after winning a claim for damages against
the applicant, and the costs were taxed at R120 789.43. A writ was issued, but the sheriff
could not successfully execute it on the movable property because the applicant's girlfriend
claimed an interest in it. The assets were released from attachment, and a nu/la bona return
of service was issued. This nu/la bona return served as the basis for the sequestration
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application.
[4] The sequestration application was served on 14 Novembe r 2024 on the Municipal
Manager of the Thabo Mofutsanyana District Municipality, the applicant's place of
employment, and attempted to be served by the sheriff on 6, 9,12, and 19 November 2024
at his residence in Bohlokong, Bethlehem.
The applicant's case
[5] The applicant argues that the orders were mistakenly sought and granted in his
absence because neither the application nor the provisional order was personally served on
him, and he did not receive notice before being ultimately sequestrated. The rescission is
pursued under the Uniform Rules 42(1)(a) and 31(2)(b), the common law, ands 149(2) of
the Insolvency Act 24 of 1936 (the Insolvency Act).
[6] The applicant argued that he was not informed about the service of the sequestration
application at his workplace nor about the attempted service at his residence on 19
November 2024. He explains that he was neither at his residence in the
Bethlehem/Bohlokong district in November or December 2024 because he attended
roadshows. He took his annual leave from 20 December 2024 until 8 January 2025, when
he returned to Bethlehem. His first workday was on 9 January 2025, w hen he received the
provisional sequestration order. He consulted his attorney on 10 January 2025 and was
informed by his attorney on 16 January 2025 that the final sequestration order had already
been granted.
[7] He provided his attorney with the necessary funds on 30 January 2025 for the
rescission application, which was filed on 14 March 2025. Had he known about the
sequestration application, he would have contested it. He is employed and earns enough
income to cover his monthly debts, and he is not insolvent.
The respondent's case
[8] The respondent noted that the applicant's main concern was not that the
sequestration application and the provisional order we re not served according to court rules,
but rather that they were not personally served on him. The respondent's argument was that
but rather that they were not personally served on him. The respondent's argument was that
he complied with the provisions of s 9(4A)(a) and (b) of the Insolvency Act, and the court,
after hearing the application, was satisfied that a copy of the application was provided to the
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applicant in accordance with that section and Uniform Rule 4(1 )(a)(iii). Ne ither the Act nor
Uniform Rule 4 requires that a provisional order of sequestration is personally served on a
debtor. The service of a provisional sequestration order is governed by s 11 of the Act.
[9] Failure to effect personal service is not a procedural error because it involves the
court's discretion during the hearing. The service affidavit and the return of service submitted
to the court demonstrated that the court exercised its discretion in accepting the mode of
service in accordance with the rules. It was not permissible for the applicant to argue, within
the limits of rule 42(1 )(a), that the court should have exercised its discretion differently, and,
since personal service was not completed, the order was wrongly sought or wrongly granted.
[10) The applicant failed to demonstrate that the application was made in good faith and
that the defence was genuine. Therefore, he did not meet the requirement of good or
sufficient cause as specified in both rule 31 (2)(b) and the common law. He also did not
establish exceptional circumstances that would warrant protection under s 149(2) of the
Insolvency Act.
Legal position
[11) Uniform Rule 42(1)(a) states that a court can, in addition to its other powers, mero
motu or upon the request of any affected party, rescind or change an order or judgment that
was mistakenly sought or m istakenly granted without the presence of any affected party. A
judgment can only be rescinded under this rule in specific, limited circumstances, such as if
it was wrongly granted. Once a judgment has been properly issued, it has finality and cannot
be easily overturned.
[12) Uniform Rule 31(2)(b) states that a defendant may , w ithin 20 days of learning about
a judgment, apply to the court with notice to the plaintiff to set aside that judgment. The court
may , upon showing good cause, set aside the default judgment on terms it finds appropriate.
may , upon showing good cause, set aside the default judgment on terms it finds appropriate.
In Grant v Plumbers, 1 an applicant must meet the following requirements:
'(a) He must provide a reasonable explanation for his default. If it appears that his default was
wilful or caused by gross negligence, the Court should not assist him .
(b) His application must be bona fide and not made with the intention of merely delaying plaintiff's
claim.
(c) He must demonstrate that he has a bona fide defence to the plaintiff's claim. It is sufficient if
1 Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (0) at 476-477.
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he presents a prima facie defence, meaning he states facts that, if proven at trial, would entitle him
to the relief sought. He does not need to fully address the merits of the case or provide evidence
showing that the probabilities favour him.'
[13] In Chetty v Law Society, Transvaal (Chetty),2 it was stated that in terms of the
common law, the Court has power to rescind a judgment obtained on default of appearance
provided sufficient cause therefor has been shown. The Court continued to state that:
'The term "sufficient cause" (or "good cause") defies precise or comprehensive definition ... [b]ut it is
clear that in principle and in the long-standing practice of our Courts two essential elements [thereof]
are: (i) that the party seeking relief must present a reasonable and acceptable explanation for his
default; and (ii) that on the merits such party has a bona fide defence which, prima facie, carries
some prospect of success.
It is not sufficient if only one of these requirements is met; for obvious reasons, a party show ing no
prospect of success on the merits w ill fail in an application for rescission of a default judgment granted
against him , no matter how reasonable and convincing the explanation of his default.' (Footnotes
omitted.)
Have the sequestration orders been erroneously granted?
[14] The applicant argued that he qualified for the rescission of the sequestration orders
under rule 42(1)(a) because the legislation has standardised the procedure for serving a
sequestration application in ss 9(4A)3 and 114 of the Insolvency Act, with the latter requiring
2 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) (Chetty) at 764I-765C.
3 (4A)(a) When a petition is presented to the court, the petitioner must furnish a copy of the petition-
(i)to every registered trade union that, as far as the petitioner can reasonably ascertain, represents any of
the debtor's employees; and
(ii) to the employees themselves-
the debtor's employees; and
(ii) to the employees themselves-
(aa) by affixing a copy of the petition to any notice board to which the petitioner and the employees have
access inside the debtor's premises; or
(bb) if there is no access to the premises by the petitioner and the employees, by affixing a copy of the
petition to the front gate of the premises, where applicable, failing which to the front door of the premises
from wh ich the debtor conducted any business at the time of the presentation of the petition;
(iii)to the South African Revenue Service; and
(iv)to the debtor, unless the court, at its discretion, dispenses with the furnishing of a copy where the court
is satisfied that it would be in the interest of the debtor or of the creditors to dispense with it.
(b) The petitioner must, before or during the hearing, file an affidavit by the person who furnished a copy of
the petition which sets out the manner in which paragraph (a) was complied w ith.
4(1) If the court sequestrates the estate of a debtor provisionally it must simultaneously grant a rule nisi calling
upon the debtor upon a day mentioned in the rule to appear and to show cause why his or her estate should
not be sequestrated finally.
(2) If the debtor has been absent during a period of twenty-one days from his or her usual place of residence
and of his or her business (if any) within the Republic, the court may direct that it is sufficient service of that
rule if a copy thereof is affixed to or near the outer door of the buildings where the court sits and published
in the Gazette, or may direct some other mode of service.
(2A) A copy of the rule nisi must be served on-
(a) any trade union referred to in subsection (4);
(b) the debtor's employees by affixing a copy of the petition to any notice board to which the employees have
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personal service on the debtor. Section 9(4A) (a) requires the respondent to provide a copy
of the petition to the debtor. Section 11 (2)(A) mandates serving the rule nisi on the union,
the employees, and the South African Revenue Service. When the court grants a provisional
order in terms of s11 (2), it also calls on the debtor to show cause on a specific date why the
estate should not be finally sequestrated. The sections do not require personal service to be
effected on the debtor.
[15] The applicant relied on Mackay v Cahi (Mackay)5 and Ne/ N.O v Cilliers N.O (Ne/
N.O),6 but these two cases do not support the applicant's position. In Mackay , it was stated
that it is a serious matter if a creditor is granted an order without giving a respondent any
prior notice. Such an order should not be granted lightly unless the evidence subm itted ex
parte is of such a clear and convincing nature that it is reasonable to act on it. In Net N. 0, it
was stated that where a proper case has been made out, the court's discretion is not
restricted from granting a provisional sequestration order without notice to a debtor.
[ 16] The applicant also relied on Chiliza v Govender and Another, 7 and contended that s
9(4A) should be read as being peremptory. In this case, the court stated that:
'In view of the fact that the word "furnish" is expansive and encompasses several forms of notification
which may not entail personal service, it seems to me that the Act prescribed the filing of an affidavit
as the most effective way to satisfy a court that the petition has been "made available in a manner
reasonably likely to make it accessible"to the listed parties. It is not surprising thats 11(2A) does.not
contain a similar requirement because the term "serve" usually denotes personal service or "legally
delivered, i.e. delivered in accordance with the law so as to notify the person on whom it is served of
its contents" or "bestel; oorhanding" to the party itself or its representative, and is usually easy to
prove through a return of service, a stamp or a signature of the recipient. It is only in rare
circumstances, usually when proof of service is not apparent on the face of the document, that a
court would require an affidavit to prove service. The import of the requirement of an affidavit in s
9(4A) therefore is to provide conclusive proof of compliance with the provisions of the Act, and the
fact that s 11 (2A) does not require an affidavit to be filed, whilst s 9(4A)(b) does, has no bearing on
the peremptory nature of the two provisions. '8 (My emphas is.)
access inside the debtor's premises, or if there is no access to the premises by the employees, by affixing a
copy to the front gate, where applicable, failing wh ich to the front door of the premises from which the debtor
conducted any business at the time of the presentation of the petition; and
(c) the South African Revenue Service.
5 Mackay v Cahi 1962 (4) SA 193 (0) at 203.
6 Ne/ N.O and Others v Cilliers N.O [2008] ZAFSHC 22.
7 Chiliza v Govender and Another[2016] ZASCA 47; 2016 (4) SA 397 (SCA).
8 Ibid para 11.
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[17] In Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd,9 it was
stated that when notice of proceedings must be given to a party, and a judgment is granted
against that party in their absence without such notice being provided, the judgment is issued
wrongly. This is true, not only if the record of the proceedings at the time the judgment is
granted shows that proper notice was not given, but also if, despite what the record indicates,
proper notice was actually not served. For example, this could happen if the Sheriff's return
of service falsely states that the relevant document was served as required by the rules,
when in fact it was not. In such cases, the party against whom the judgment is made is not
entitled to a ruling based on an error in the proceedings. If, under these circumstances,
judgment is granted in the absence of the concerned party, the judgment is incorrect. In this
case, the applicant does not argue that no notice was given.
Did the applicant show good or sufficient cause?
[18] 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 and Others, 10
the court affirmed the common law requirements espoused in Chetty, 11 and stated that these
were twofold. First, the applicant must furnish a reasonable and satisfactory explanation for
his default. Second, he must show that on the merits he has a bona fide defence which prima
facie carries some prospect of success. Proof of these requirements is taken as showing
that there is sufficient cause for an order to be rescinded. A failure to meet one of them may
result in the refusal of the request to rescind.
[19] It was argued, on behalf of the respondent, that the applicant admitted that, apart
from denying being insolvent, he did not address his financial situation or his detailed
defence against the sequestration application. It is indeed so that this concession was made
defence against the sequestration application. It is indeed so that this concession was made
in the applicant's heads of argument. It was stated that the applicant's case was that he was
able to pay his debts, and the application was an abuse of process. In both the founding and
replying affidavits, the applicant failed to present a bona fide defence to his act of insolvency
that resulted in his sequestration.
9 Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd [2007] ZASCA 85; [2007] SCA 85
(RSA); 2007 (6) SA 87 (SCA).
10 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 [2021] ZACC 28; 2021 (11) BCLR 1263
(CC) para 71 .
11 Op cit fn 2.
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Section 149(2) of the Insolvency Act
[20] Section 149(2) of the Insolvency Act provides that the court may rescind or vary any
order it has made. Storti v Nugent, 12 states that this section can be invoked both when the
order was not warranted and when it was correctly made, but subsequent factors make
rescission or variation necessary or desirable. If it is alleged that the order should not have
been granted, the facts must at least support a cause of action for a common- law rescission.
Based on the above, it is clear that the applicant has not established a case for the rescission
of the sequestration orders under this section.
Conclusion
[21] It is evident that the sequestration orders were not granted erroneously. The applicant
failed to show good and sufficient cause for the orders to be rescinded. In the light of the
above, I am not persuaded that the applicant has made out a case for the relief sought and
the application stands to be dismissed.
Costs
[22] It is trite that the successful party is entitled to the costs. The respondent seeks a
special costs order on the scale as between attorney and client for the unreasonableness in
the applicant's conduct of the litigation. I am not persuaded that such an order is appropriate
and am of the view that costs should be awarded on a party and party scale.
Order
[23] I therefore, make the following order:
The application is dismissed with costs on a party and party scale including counsel's fees
on scale C .
12 Storti v Nugen t 2001 (3) SA 783 (W ) at 806.
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Appearances
For the applicant: CP Pienaar SC
Instructed by: Blair Attorneys, Bloemfontein
For the respondent: PJJ Zietsman SC
Instructed by: Honey Attorneys, Bloemfontein.