THE HIGH COURT OF SO U TH AFRICA
MPUMALANGA DIVISIO N , MBOMBELA MAIN SEAT
( l) REP OR T A BLE: NO
(2) O F INTEREST TO O THE R JUDG ES: NO
(3) REV ISED .
06 October 2025
DATE
In the m atter between:
SIG N ATUR E
MEC FOR COMMUNITY SAFETY ,
SECURITY A N D LIASON ,
PROVI N CE OF MPUMALANGA
And
MAKANYOGAGE N ERAL
BUSINESS E N TERPRISE CC
In re:
MAKANYOGAGE N ERAL
BUSINESS ENTERPRISE CC
(Registration no: 2002/018224/23)
APPEAL CASE NO: A68 / 2024
CASE NO: 596 / 2021
APPELLA N T
RESPONDENT
PLAINTIFF
2
And
MEC FOR COMMUNITY SAFETY SECURITY
AND LIASON PROVINCE MPUMALANGA DEFENDANT
_________________________________________________________________
J U D G M E N T
_________________________________________________________________
MADAVHA AJ:
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for the hand-down is deemed to
be 06 October 2025 at 10H00.
INTRODUCTION
[1] This is an appeal against an order made by Roelofse AJ of this Division (court
a quo), dismissing an application for rescission of judgment that was granted
against the appellants on 24 October 2022. The appeal is with leave by the
Court a quo.
BACKGROUND
[2] The judgment sought to be rescinded was based on a debt. The basis of that debt
dates back to when the appellant advertised a tender for security services. The
tender contract was awarded to the respondent. In the summons issued on 22
February 2021, the respondent claims to have provided the required services, of
which it was only partially paid. It therefore issued summons against the
appellants for breach of contract, seeking payment of the outstanding monies.
3
The appellant entered an appearance to defend on 8 March 2021 and filed a plea
on 29 April 2021.
[3] The appellant served a Rule 28 notice and the amended plea on the respondent
on 16 May 2021, and a discovery affidavit on 23 July 2021. The respondent
sought better discovery, and an order to compel such was obtained on 23
September 2021. Having failed to comply with the discovery order, the
respondent applied to strike out the appellant’s defence, which was granted on
7 February 2022. The respondent subsequently applied for default judgment,
which was granted on 24 October 2022. This order was served on the appellants
on 26 October 2022. Dissatisfied with the default judgment, the appellants
applied for rescission, but this application was not filed within the time limits
specified by the rules.
[4] In explaining the delay in launching the rescission application, the officer
attached to the office of the State Attorney, Mbombela, who deposed to the
applicant’s founding affidavit, alleged that she joined that office in August 2022
and that at the time, they only had three attorneys handling over 5,000 files. She
further alleged that the office was short-staffed and struggling to cope with the
workload. The draft application for rescission was sent to the client on 22
November 2022; however, it was difficult to contact the client for consultation
and to finalise the application. According to the Uniform Rules, the application
for rescission was required to be brought by no later than 23 November 2022. It
was, however, only brought five days later because of the delay referred to
above.
[5] In response, the respondent's case was that the appellant was ordered to pay an
amount of R75 545 258.32 plus 7% interest calculated from 5 January 2021 to
the date of final payment, and that on 14 December 2023, the said amount was
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paid in full and on 19 January 2024, interest on the principal debt was also paid
in full. The respondent contend ed further that the appellant brought the
rescission application in terms of Rule 31(2)(b), which provides that the
application must be made within 20 days of obtaining knowledge of the
judgment. Finally, a good cause must be shown by the appellant why the
judgment should be rescinded. The respondent further alleged that the appellant
failed to bring the application within the prescribed time frame and further failed
to make a proper case for condonation of the delay in bringing the application.
[6] Having heard arguments from both sides , the court a quo dismissed the
application for rescission. It is against this decision that the appellant noted the
present appeal. The appellant raised various grounds on which they allege
rescission ought to have been granted, amongst them that:
6.1 The court a quo erred in law/or in fact in finding that no good reasons were
advanced to support application for condonation.
6.2 The court a quo erred in dismissing the application for condonation and
ordering the applicant to pay an amount of R75 432 258.32
6.3 The court a quo should have found that:
a) Averments made on behalf of the appellant, in support of the condonation
and rescission application were undisputed.
b) It is in the interest of justice that the application for condonation be granted
because the application was only five days late.
c) Lack of evidence for the alleged service rendered by the respondent permits
the granting of application for condonation as the respondent will receive
unduly enriched at the expense of the applicant and that
d) The applicant is an organ of state in charge of public funds and acting
through its employees and on its own.
[7] Before addressing the issues raised, it is essential to outline the legal principles
governing the rescission of judgments.
5
LEGAL FRAMEWORK
[8] The appellant argues that rescission should have been granted under Rule
31(2)(b) of the Uniform Rules of Court or at common law. The test for
rescission at common law is trite, namely that good cause must be shown. To
establish good cause, an applicant needs to provide a reasonable explanation for
the default and demonstrate a bona fide defence.
[9] 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 ,1 the Constitutional Court restated the two requirements for
granting an application for rescission that need to be satisfied under the common
law as being the following: First, the applicant must furnish a reasonable and
satisfactory explanation for its default. Second, it must show that it has a bona
fide defence which prima facie carries some prospect of success on the merits .
Proof of these requirements is taken as showing that there is sufficient cause for
an order to be rescinded. Failure to meet one of these requirements may result
in the refusal of the request to rescind.
[10] Silber v Ozen Wholesalers2 remains the authority for the proposition that
an applicant’s explanation must be sufficiently full to enable the court t o
understand how the default came about and assess the applicant’s conduct. In
explaining the default, the applicant must demonstrate that they were not in
wilful default. If the case the applicant makes out on wilful default is not
persuasive, that is not the end of the inquiry; the applicant’s case may be rescued
if a bona fide defence is demonstrated.
EXPLANATION OF DEFAULT
1 [2021]ZACC 28
2 1954 (2) SA 345 (A) at 353
6
[11] The appellant submitted that the delay in launching the rescission was due
to their office being swamped with work, and that after the application was
drafted, they could not obtain further instructions from the client . The
application was only brought five days after the expiry of the time frames
stipulated in the rules, and the delay was not wilful on the part of the appellant.
[12] The appellant submitted that the respondent would not suffer any prejudice
if the rescission is granted. However, the appellant will be prejudiced if the order
is not rescinded, in that the respondent is claiming for services not rendered. In
considering whether the appellant was in wilful default, I bear in mind what was
said in Harris v ABSA Bank Ltd Volkskas3 that:
“Before an applicant in a rescission of judgment application can be said to be in
“wilful default” he or she must bear knowledge of the action brought against him or
her and of the steps required to avoid the default. Such an applicant must deliberately,
being free to do so, fail or omit to take the step which would avoid the default and
must appreciate the legal consequences of his or her actions. A decision freely taken
to reform from filling a notice to defend or a plea or from appearing would ordinarily
weigh heavily against an Applicant required to establish sufficient cause.’
[13] It is evident from the facts of this case that the appellant’s delay lasted only
five days, and the reasons for the delay cannot be considered unreasonable. The
appellant is a State organ, and established channels must be followed when
opposing matters, unlike when litigation is against an individual. The fact that
the State Attorney could not contact the client to finalise the application is an
explanation I find reasonable and probable, given the workload of the officer
assigned to handle this matter. I c annot conclude that the delay was
unreasonable or that it failed to provide an explanation for the delay. In the
unreasonable or that it failed to provide an explanation for the delay. In the
circumstances, I find that the Court a quo ought to have found that there was no
unreasonable delay in launching the rescission application.
3 2006 (4) SA 527 (T) at paragraph 8.
7
BONA FIDE DEFENCE
[14] The second stage of the inquiry is whether the appellant has raised a bona
fide defence to the respondent's claim. In Harris4 (supra), Moseneke J stated
thus:
‘(10) A steady body of judicial authorities has held that a court seized with an
application for rescission of judgment should not, in determining whether good or
sufficient cause has been proven, look at the adequacy or otherwise of the explanation
of the default or failure in isolation. “Instead, the explanation, be it good, bad or
indifferent, must be considered in the light of the nature of the defence, which is an
important consideration, and in the light of all the facts and circumstances of the case
as a whole.”
[15] It is the appellant’s case that it has a bona fide defence on the merits. That
defence is that the respondent is seeking payment for services not rendered .
According to the contract, the respondent was required to service sites as per
the appointment letter and the service level agreement and not as per the bid
document. According to the appellant, the respondent was not appointed for the
number of security guards it is claiming, as it does not have an appointment
letter for the number of guards claimed . It is, however, a fact that this defence
has been struck off as per the court order dated 7 February 2022. The appellant,
therefore, has no bona fide defence since the defence has been struck off.
[16] The appellant does not meet the second stage of the inquiry; their defence
has been struck off, and as at the time of the hearing of this appeal, the said
defence remained struck off.
ANALYSIS
4 Supra at paragraph 10.
8
[l 7] It is trite that an applicant for rescission mu st demon strate the existence of
a substantial defence and not necessarily a probability of success. It is sufficient
that, in his defence, he presents a prima facie case that raises triable issues. Now
that the appellant's defence has been struck off, I cannot find that the appellant
has a bona fide defence. Although I have found that their delay in filling the
rescission application is reasonable, they do not pass the second stage of inquiry;
they lack a defence. It is also not disputed that the debt claimed, along w ith its
interest, has been paid in full by the appellant.
CONCLUSION
[18] In the circumstances, I find that the Court a quo did not err in dismissing
the appellant's application for rescission. Although I find that the appellant's
delay was not w ilful, the appellant does not have a bona fide defence w ith
prospects of success, and as such, the default judgment granted stands.
ORDER
[19] In light of the above, I propose making the follow ing order:
Appeal is dismissed w ith costs.
ACTING JUDGE OF THEIDGH COURT
9
I agree and it so ordered
___ ___
TV RATSHIBVUMO
DEPUTY JUDGE PRESIDENT
I agree.
_
SM MSIBI
ACTING JUDGE OF THE HIGH COURT
FOR THE APPELLANT: ADV V NOTSHE SC
ADV T VUKEYA
INSTRUCTED BY: MATSANE ATTORNEYS INC
MBOMBELA
matsaneb@msatt.za.net
FOR THE RESPONDENT: ADV TN MLAMBO
ADV BV POTSANE
INSTRUCTED BY: JV SKOSANA ATTORNEYS
C/O OBERT NTULI INC
10
consulting@skosanalaw.com
DATE OF HEARING: 08 AUGUST 2025
DATE OF JUDGMENT: 06 OCTOBER 2025