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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 15889/2022P
In the matter between:
NGUSE GAS AND FUEL COMPANY (PTY) LTD FIRST APPLICANT
BONGINKOSI FORTUNE NGUSE SECOND APPLICANT
and
VRYHEID PETROLEUM (PTY) LTD RESPONDENT
ORDER
(a) The judgment granted by the Registrar on 19 May 2023 is varied to record that
the judgment is against the first and second defendants, jointly and severally.
(b) The application is dismissed.
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(c) The applicants are directed to pay the costs of the application, jointly and
severally, as between attorney and client, with the costs of counsel to be on scale
B.
JUDGMENT
Seegobin J
Introduction
[1] This is an application for rescission of a default judgment granted by the
Registrar of this court in the absence of the defendants on 19 May 2023. The judgment
amount is in the sum of R6 834 866, 56, together with interest and costs. The
application for rescission is premised solely in terms of rule 42(1)(a) of the Uniform
Rules on the basis that the judgment was erroneously sought and granted in the
absence of the defendants.
[2] The application is opposed by the plaintiff/respondent which delivered an
answering affidavit. No replying affidavit has been delivered by the applicants.
[3] The background facts are briefly the following. The first applicant, a company,
made written application for credit with the respondent for the purchase of gas and
petroleum related products. The second applicant, Mr Guse, signed the credit
application on behalf of the first applicant. Mr Guse further bound himself as surety for
the first applicant’s obligations towards the respondent. The only domicilium address
recorded by both applicants on the application form was 1[...] J[...] C[...] Road,
Blackridge, Pietermaritzburg.
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[4] Pursuant to the signing of the agreement the first applicant purchased goods
from the respondent and incurred a debt in the sum of R 6 834 866, 56. The respondent
issued summons out of this court on 17 November 2022 in which it cited both applicants
as co -defendants. The summons was duly served by the sheriff at the chosen
domicilium address of the applicants at 1[...] J[...] C[...] Road, as previously referred to.
In respect of both applicants, the sheriff recorded that there was no one present to
accept service and that the principal front door was inaccessible as the gates were
locked.
[5] In an answering affidavit filed on behalf of the respondent, the deponent , Mr
Cockbain, a co-director of the respondent, averred that on 10 January 2023, the second
applicant, Mr Guse, arrived at his office unannounced. Mr Guse was armed with a
firearm. Mr Guse indicated that they should settle the matter “like gentlemen”. According
to Mr Cockbain the dispute was duly settled on certain terms agreed to between them
and subject to Mr Guse signing an acknowledgment of debt. The respondent’s attorneys
were duly instructed to prepare such an acknowledgment of debt.
[6] Despite the undertaking by the applicants to settle the debt, no payments were
made. The respondent’s attorneys were accordingly instructed to apply for judgment.
This was duly done and judgment was granted by the Registrar on 19 May 2023. A writ
of execution was served on 2 November 2023. Notwithstanding the allegation s
contained in the answering affidavit, the applicants did not think it necessary to file a
replying affidavit. The allegations made by Mr Cockbain were left unchallenged.
[7] In the opposed motion that served before me on 16 September 2025, the only
ground for rescission pursued by the applicants was that summons was not served in
terms of the Uniform Rules providing for service on a company [Rule4(1)(a)(v)]. For the
terms of the Uniform Rules providing for service on a company [Rule4(1)(a)(v)]. For the
reasons that follow, I consider the submissions advanced on behalf of the applicants on
this ground to be without merit. Firstly, the first applicant elected the address, at 1[...]
J[...] C[...] Road, Blackridge, Pietermaritzburg, as its domicilium address. Secondly, the
second applicant, as surety, similarly elected the aforesaid address as his domicilium
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address. Thirdly, as pointed out already, the sheriff served a copy of the summons at the
address in question. In light of the fact that no other address was chosen by the
applicants on the credit application form, I consider that there was proper service on
both of them in terms of the provisions of Rule 4(1)(a)(iv). In my view, the second
applicant is not being truthful about his ignorance of the summons as he was in
possession of a copy of the summons when he arrived unannounced at Mr Cockbain’s
offices on 10 January 2023 and concluded a settlement agreement with him.
[9] In the result, I take the view that the judgment that was eventually granted
against the applicants, was not granted in error. I am fortified in this view by the fact that
at the time of applying for judgment, the respondent was able to satisfy the Registrar
that the service of the summons was in order.
[10] It is also significant, in my view, that throughout these proceedings the applicants
did not raise any defence to the merits of the respondent’s claim against them. Quite
clearly, they have none. In all the circumstances, I consider that the judgment was not
granted in error and therefor cannot be set aside under Rule 42.
[11] Before I conclude, there are two other matters that require attention. Mr Schaup ,
who appeared on behalf of the respondent , drew my attention to the fact that the
judgment as recorded by the Registrar was not made to run jointly and severally against
the applicants. This was clearly a mistake on the part of the Registrar as the application
for judgment was in respect of both applicants. I see no reason why this cannot be
varied even at this stage in order to reflect the true position.
[12] The second matter concerns the issue of costs and the relevant scale on which it
should be paid. Mr Schaup contended that given the manner in which this application
was pursued by the applicants, a punitive costs order was justified. He argued that the
was pursued by the applicants, a punitive costs order was justified. He argued that the
application was initially premised on three grounds, namely, (a) the non-signature of the
particulars of claim by an attorney or advocate, (b) the non-compliance with the
provisions of the National Credit Act, and (c) that no proper service of the summons had
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occurred. As it transpired, the only ground pursued in argument related to the issue of
non-service with the other grounds being abandoned altogether.
[13] I agree that the manner in which this application was pursued amounted to
nothing more than an abuse. This, in my view, justifies a punitive costs order with such
costs to be paid on scale B. The order I propose making is contained in a draft order
which was provided by Mr Schaup.
Order
[14] In the result, I make the following order:
(a) The judgment granted by the Registrar on 19 May 2023 is varied to record that
the judgment is against the first and second defendants, jointly and severally.
(b) The application is dismissed.
(c) The applicants are directed to pay the costs of the application, jointly and
severally, as between attorney and client, with the costs of counsel to be on scale
B.
________________________
SEEGOBIN J
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Date of hearing: 16 September 2025
Date of judgment: 19 September 2025
APPEARANCES
For the Applicants: Mr T. Kadungure
Instructed by: Straus Daly Inc.
Tel.: 031-570 56 00
Email: MNtsibande@strausdaly.co.za
C/O: Botha and Olivier
Ref.: Ashika Sewparsadh
For Respondent: Mr D. Schaup
Instructed by: G.J. Vonkeman Attorneys
Tel.: 034-980 75 45
Ref.: (01V048014)
Email: admin@vonkeman.co.za
C/O Thatham Wilkes Inc.
Tel.: 033-345 35 01
Ref.: NE Dhooma/AB/09ZG53522
Email: nabeel@tathamwilkes.co.za