2
Case number: 2022-045734
In the matter between:
LUANDHRAN KISTNASAMY MOODLEY Applicant
and
WOA FUELS AND OILS CC Respondent
In re:
WOA FUELS AND OILS CC Plaintiff
and
HILTON LOGISTICS & DISTRIBUTION CC First Defendant
LUANDHRAN KISTNASAMY MOODLEY Second Defendant
JUDGMENT
KRÜGER AJ:
Summary
Practice- Judgment and orders- Rescission of unopposed s
ummary judgment-
Rescission of judgment by default- condonation sought for late rescission application
in resp
ect of rescission application for default judgment- rescission in terms of
common law- good cause requires defence showing some prospect of success-
Courts having judicial discretion-surety alleged not to have been signed yet bearing
initials of surety
Introduction
[1] The applicant seeks a rescission of judgments
granted against him in two
matters, one following upon summary judgment and the other following default
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judgment. The Deputy Judge President allowed for both matters to be heard
simultaneously by this court.
[2] During August 2020 the respondent and Hilton Logistics & Distribution CC
(“Hilton”) concluded a written contract for the sale and delivery of goods on
credit by the respondent to Hilton. The contract incorporated a deed of surety in
terms of which the applicant bound himself jointly and severally as surety and
co-principal debtor in solidum to the respondent for payment on demand of all
sums of money which Hilton may then and from time to time owe or be
indebted to the respondent.
[3] According to the respondent, Hilton failed to make payment of two of the
respondents invoices, the first being „HDL001‟ in the amount of R 1 900 854,14
and the second being „HLD002‟ for R 1 339 934,73. Letters of demand sent to
Hilton and the applicant did not have the desired effect.
[4] In case number 2022-031620 the respondent served a combined summons
during November 2022 upon Hilton as first defendant and the applicant herein,
who is the second defendant in the action, for payment in the sum of
R 1 900 854,14. The applicant filed notice of intention to defend on 5 December
2022 and his plea on 15 February 2023. Hilton did not file notice of intention to
defend.
[5] In case number 2022-045734 the respondent served a combined summons
during November 2022 upon Hilton as first defendant and the applicant as
second defendant for payment in the sum of R 1 339 934,73 in respect of
invoice „HLD002‟. Neither Hilton nor the applicant filed notice of intention to
defend.
[6] For the sake of convenience, I shall refer to the matter with number 2022-
031620 as the “ first matter” and the matter with number 2022-045734 as “ the
second matter”
[7] Hilton was placed under final winding up on 16 May 2023.
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[8] In the first matter, application for summary judgment was brought. It was not
opposed. Summary judgment was granted against the applicant on 24 May
2023 for payment in the amount of R 1 900 854,14. In the second matter, on 19
July 2023, judgment by default was granted against the applicant and Hilton in
the amount of R 1 339 934,43, the one paying the other to be absolved.
[9] Around 22 December 2023, the applicant delivered to the respondent an
application seeking an order rescinding and setting aside the summary
judgment granted in the first matter. In the second matter, on the same date,
the applicant delivered an application for the reconsideration for an order
condoning the applicant‟s non -compliance with the time period prescribed in
rule 31(5)(d) and for the default judgment against the applicant to be
reconsidered. After the respondent indicated in its answering affidavit that rule
31(5)(d) was not applicable and does not confer jurisdiction on this court to
grant the relief sought, the notice of motion was amended to seek an order for
res
cission of the default judgment in terms of rule 31(2)(b) and condonation for
non-compliance with the time limits prescribed in that rule for bringing a
rescission application.
The application in the first matter
[10] The applicant alleges he was unaware of the application for summary
judgement. He was not informed by his erstwhile attorneys of record in the
action that application for summary judgment was brought. The applicant was
informed by the erstwhile attorney responsible for the matter that his
correspondent attorney may not have sent a copy to him. Curiously, so it is
alleged, the attorney also informed him that he was under the impression the
summary judgment only pertained to Hilton. The attorney informed him that the
attorney‟s s ecretary did not distinguish between Hilton and the applicant and
with a view towards minimising costs and Hilton being in the process of
with a view towards minimising costs and Hilton being in the process of
liquidation, he had not bothered to bring the summary judgment application to
the attention of the applicant.
[11] The plea filed is three pages long consisting of four paragraphs. Many of the
allegations in the particulars of claim are met with a plea of having no
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knowledge. In respect of paragraphs 6 to 15 of the particulars of claim, which
relates, amongst others, to the conclusion of the contract and its material terms
and conditions pursuant to a credit application by Hilton to the respondent, the
applicant pleaded it has no knowledge thereof, cannot admit or deny same and
puts the respondent to the proof thereof. However, he denies that he acted on
behalf of Hilton in concluding the contract. He baldly denies the suretyship
attached to the particulars of claim and that he had bound himself as surety and
co-principal debtor. He also denied that he is liable for payment of the amount
claimed. No material facts are pleaded as to the grounds upon which the
suretyship is denied. The applicant‟s allegations regarding letters of demand
having being addressed to Hilton and the applicant, compliance by the
respondent with the National Credit Act 34 of 2005 and the like, are again met
with a plea of having no knowledge, not being able to admit or deny same and
putting the respondent to the proof thereof.
[12] The applicant in his founding affidavit alleges that the deed of surety in terms of
which summary judgment was granted against him was initialled by him, but not
signed. He alleges the respondent and its representatives perpetrated a fraud
in proceeding to obtain summary judgment knowing the deed of suretyship was
unsigned.
[13] According to the applicant, he first became aware of the summary judgment by
default when the respondent‟s attorney, in response to a request by the
applicant to provide him with a copy of the suretyship, sent him a copy of the
court order together with a copy of the alleged unsigned deed of suretyship.
[14] The applicant alleges that when completing the application for credit, it was a
requirement for Hilton to state if it offered any security. Hilton answered “no”. It
is al so alleged that the handwriting on the deed of suretyship is not his
is al so alleged that the handwriting on the deed of suretyship is not his
handwriting and that he does not know whose handwriting it is. He confirms it is
his initials which appear at the bottom of the suretyship‟s pages, but “… it is
probably because the surety agreement was part of the bundle of documents
which were signed by me as part of the application for credit. ” As the
application for credit was not signed by the applicant, it is alleged to fall foul of
the requirements for a surety to be in writing and signed by the surety.
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[15] In addition, it is alleged that the respondent and/or its attorneys “… made itself
party to the fraud by pleading that a suretyship agreement existed and when
summary judgment was sought .” The respondent and its attorneys are alleged
to have known the suretyship was not signed by the applicant and had made a
fraudulent misrepresentation with the intent to mislead the court in order to
obtain summary judgment. If the court had known the alleged true facts, it
would have given a judgment other than summary judgment.
The application in the second matter
[16] Following upon the amendment to the notice of motion, the applicant did not
adapt the founding affidavit accordingly. In consequence, allegations in the
founding affidavit still refer to section 31(5)(d) as if it were an application for
reconsideration.
[17] The applicant alleges that his opposition to the first matter is indicative of him
always intending to defend his rights. He was unaware of the second matter
“…due to confusion caused by the close proximity within which both
summonses in the two actions were served… ” Both his erstwhile attorney and
he were under an allegedly reasonable impression that only one action existed
and that it had been defended and pleaded to. His current attorneys only
discovered on 12 December 2023 that there were two actions.
[18] As in the application for rescission in the first matter, the grounds and
allegations set out in the applicant‟s founding affidavit accords with that of the
application in respect of the first matter, as referred to above.
Condonation
[19] The applicant seeks condonation for the late launching of the application to set
aside default judgment granted in the second matter. His affidavit refers to non-
compliance of the 20 days limit in terms of rule 31(5). Be that as it may, the
same period applies in respect of rule 31(2)(b). I will assume for purposes of
this judgment that condonation is sought in terms of the latter rule.
[20] It
this judgment that condonation is sought in terms of the latter rule.
[20] It
is contended by the applicant that he only became aware of the default
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judgment on 16 November 2023 which would require him to have filed the
application by 20 December 2023. He contends the application was
approximately 4-5 days late. It is a result of it having taken time, having regard
to the time of year, to obtain and secure the services his legal representative
after instructing his previous attorneys to withdraw.
[21] For condonation to be granted, it needs to be shown there is sufficient cause
for a court to exercise its discretion to do so upon consideration of all the facts
placed before it, bearing in mind fairness to both sides. The degree of lateness,
and the explanation therefor, as well as the prospects of success in the matter
and its importance needs to be considered. If there are no prospects for
success, no condonation ought to be granted. 1 The nature of the relief sought
and the interest of the other parties for a dispute to be brought to finality, the
avoidance of unnecessary delay in the administration of justice and the degree
of negligence causing the delay are also factors to be taken into account.
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[22] Though the Court is endowed with a wide discretion, condonation is not there
for the asking. An application for condonation must be brought within a
reasonable time depending on the circumstances of the matter, and an
inordinate delay may in itself be good reason for refusing relief. 3 Where the
delay is inordinate, a reasonable belief is induced that the order had become
unassailable.
4 The interests of justice also need to be considered.5
[23] Having regard to the facts and circumstances placed before me, it appears, if
the applicant‟s version is to be believed, that the delay in bringing the
application for rescission was not inordinate. As regards the merits of the
matter, as set out herein below, I am not persuaded there are prospects for
success. However, the second matter is closely linked to the application in the
first matter, though in the former summary judgment was obtained and in the
first matter, though in the former summary judgment was obtained and in the
1 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-E
2 See Civil Procedure in the Superior Courts Harms September 2024 Part B at B27.7 and the
authorities there cited.
3 Occupiers, Berea v De Wet NO 2017 (5) SA 346 (CC) at 366E to 367A; Promedia Drkkers &
UItgewers (Edms) Bpk v Kaimowitz & others 1996 (4) SA 411 © at 421f-H
4Laerskool Generaal Hendrik Schoeman v Bastian Financial Services (Pty)
Ltd 2012 (2) SA 637 (CC) at par [16]; Van Wyk v Unitas Hospital and another (Open
Democratic Advice Centre as amicus curiae) 2008 (2) SA 472 (CC) at [31]
5 Brummer v Gorfil Bros Investments (Pty) Ltd 7 others 2000 (2) SA 837 (CC) at [3]
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latter judgment by default. Both matters involve the same contract and the
applicant‟s liability is based on the same de ed of suretyship. The defences
raised by the applicant as to why he should not be liable on the deed of surety
correspond. It seems to me that it would in the circumstances be incongruous
not to grant condonation.
Consideration
[24] It is trite that section 6 of the General Law Amendment Act 6 stipulates no
suretyship contract shall be valid unless its terms are embodied in a written
document signed by or on behalf of the surety.
[25] Respondent‟s counsel, Ms Blumenthal, l referred me to Caney‟s Law of
Suretyship7 where it states a signature should be interpreted as meaning the
placing of a mark on a document identifying or representing the person signing.
A signature is “… any mark-whether it be a person’s full name and surname, or
his initials and surname, or only his initials, or a mere mark-placed on the
contract with the intention of identifying the signatory. ” It need not be written in
a specific manner or place.
[26] Ms Blumenthal also referred me to the judgment of Moshidi J in Beaux Lane
(SA) Properties (Pty) Ltd v Marais 8 where the surety had appended his initials
to a lease agreement consisting of 59 pages. At clause 54 of the agreement, at
page 23, appeared a deed of suretyship. It was not disputed the surety had
there initialled the deed of suretyship. 9 It was denied that the initials were
appended with the intention of being bound as surety. The defence was that
the clause containing the surety was one of many clauses that required to be
signed. In upholding the deed of suretyship the court did not disapprove of the
view expressed in Caney pertaining to what may constitute a signature.
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[27] Mr Naidoo, on behalf of the applicant, did not take issue with the exposition set
out in Caney, nor with any of the authorities relied upon in substantiating same.
6 50 of 1956
6 50 of 1956
7 6th Edition C F Forsyth and J T Pretorius 69
8 [2015] JOL 32961 (GJ)
9 Beaux [17].
10 Beaux [21]
9
He argued that no signature appeared on the suretyship agreement where it
was indicated for the surety to append its signature and that the applicant never
intended to sign the deed of surety by appending his initials to it. This, so it is
contended, is substantiated by the fact that section D to Hilton‟s credit
application enquired whether any security was being offered. The enquiry takes
the form of three columns. The first describes the nature of security offered,
seven possibilities in number, one of which is “ Personal Security”. The second
column against each of the seven possibilities contains an empty circle
indicating „yes‟ which may be ticked against each of the seven possibilities. The
third column contains a circle against each of the possibilities indicating „no‟.
Each of the circles in the third column has been filled in. In his replying affidavit
in the second matter, the applicant stated that when completing the application
for credit, he “… specifically and expressly answered “no” to the questions
whether an y security against the credit facility was being offered… ” The
applicant‟s case is that this signifies Hilton offered no security.
[28] In its answering affidavits the respondent sets out in detail the manner in which
credit applications are dealt with in concluding a contract. According to the
respondent, this discloses, amongst others, that the applicant‟s versions of
events are not correct. The application for credit was done online, which the
applicant did on Hilton‟s behalf. An online electronic application form is
completed by an applicant or on behalf of an applicant. Once completed it is
uploaded online together with various documents required as per the
application form. The form consists of various sections which must be
completed and populated. In this instance, it was done accordingly and the
form duly signed. On the face of the form it is stated in bold capital letters:
“
APPLICATION FOR CREDIT INCORPORATING THE
“
APPLICATION FOR CREDIT INCORPORATING THE
ACCEPTANCE OF TRADING TERMS AND CONDITIONS AND THE
OFFERING OF SURETYSHIP”
[29] Section D states “Print the personal surety document and ensure that the
document is signed by at least one Director of the Company…Then scan back
into your documents and attach to this application under “Section G” . In the
applicant‟s replying affidavit, these allegations is baldly denied, save for stating
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that the respondent‟s usual procedure is irrelevant and that it had accepted the
application for credit in the form “…I submitted it…”. No explanation is proffered
of the requirement of a signed suretyship to be uploaded.
[30] Incorporated into the answering affidavits is a copy of Section G. It clearly
records the applicant confirms, warrants and consents that certain documents
had been uploaded including a personal surety, the corresponding tick box
having been completed accordingly. It was verified that the suretyship had been
printed, signed an uploaded as required. In reply, the applicant admits that the
suretyship was uploaded, but persists in denying it was signed by him.
[31] The respondent explains that the upload of a personal surety is mandatory on
its system in the absence of which the application is not allowed to be
submitted back to the respondent. There is a personal surety tab which
provided for the download of the surety. The fact that it had been submitted to
the respondent means it had been so downloaded by the applicant. The deed
of surety uploaded by the applicant was completed by hand, in pen and
witnessed. Again, in reply, these allegations are met with a bald denial and
reiteration of the applicant‟s version that he did not sign the suretyship.
[32] The respondent alleges particulars of an audit trial generated by its electronic
system recording the occurrence of certain actions and the time it took place in
respect of the application for credit. It includes, amongst others, the e-mail
address to which the electronic credit application was sent, the date and time
the credit application was first opened by the applicant and the date and time
the respondent‟s terms and conditions were accepted in the application for
credit. It recorded the full name of the signatory as being the applicant as well
as his identity number. The respondent alleges this accord with Section C of
the application for credit form, the surety document as well as the CIPC search
the application for credit form, the surety document as well as the CIPC search
for Hilton which was attached to the summonses. The audit trial further
recorded the date and time the signatory‟s signature was confirmed and made
valid as being 12 August 2020 at 4:13pm. The respondent explains this is the
time an applicant h it the “Submit” bu tton to return the completed credit
application to the respondent together with all the attached mandatory
documents. In reply, the applicant did not dispute the audit trial and the
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correctness thereof. He stated he is unable to do so and avers the audit trial
shows nothing more than that the documents were submitted.
[33] The applicant does not dispute that the signed special resolution uploaded by
the applicant for credit is also mandatory . Indeed, it is annexed to the
applicant‟s founding affidavit. Nor does he dispute the resolution lists the
signatures of 5 members or directors of Hilton who attended the meeting
authorising the applicant to sign all documents with regard to the credit
application.
[34] The respondent alleges that the signature of one of the signatories to the
special resolution, Mr Govindsami ‟s, is the same signature as that of the
second signatory to the deed of suretyship. Mr Govindsami is further alleged to
be the other signatory to the credit application, where he is cited as the
accountant. The signature at number 3 of the special resolution is alleged to be
that of the first witness to the deed of suretyship. The deed of suretyship was
witnessed by two signatories in Hilton‟s employ, who bore witness to the
applicant‟s signing of th e suretyship. In reply, the applicant merely notes the
contents of the paragraphs in which these allegations
are made. He states he
never alleged that the witness signatures were forged or that no witnesses
appended their signatures to the surety agreement. He again reiterates he did
not sign the surety and that no signature appeared thereon, save for the
witnesses and his initials at the bottom of the page. It is averred that none of
this was brought to the attention of the court when the judgments were
obtained. The remaining allegations are denied.
Conclusions
[35] A final judgment may be set aside in terms of common law principles or in
terms of the provisions of rule 42. Once a judgment is granted, it is final and the
judge becomes functus officio . At common law, a judgment cannot be
rescinded or altered except where it was obtained by fraud or, on rare
exception, iustus error.
exception, iustus error.
11 In certain circumstances a judgment might be altered,
supplemented or corrected, which is not relied upon by the applicant and does
11 Fraai Uitzicht 1798 Farm (Pty) Ltd v McCullough and Others [2020] JOL 47818 (SCA) at [20]
12
not apply to the matters before me. Rule 42 for the most part has been held to
be a restatement of the common law principles which in its ambit is
procedural.12
[36] Where judgment by default was granted, it may be set aside in accordance with
the provisions of rule 31(2)(b) upon good cause shown. Good cause usually will
be satisfied if there is evidence of the existence of a substantial defence which
the defendant intends to prosecute conscientiously once the rescission is
granted, amongst others. The primary requirement is not for the applicant to
convince the court of probabilities favouring its defence, though it must be
shown to have some prospect of success.
13 It is enough if an issue is revealed
which is deserving of being tried.14 The burden of proving the existence of good
cause by providing evidence of the existence of a substantial defence as well
as a bona fide held desire to prosecute such defence and not with a view
towards merely delaying a plaintiff‟s claim , lies squarely upon an applicant
seeking rescission.
15
[37] The court is clothed with a wide discretion to grant or refuse rescission which
must be judicially exercised, having due regard to do justice between the
parties.
16
[38] In my view, having due regard to the applicant‟s purpo rted defences and the
facts and circumstances I have set out, the applicant has not met the
requirements entitling him to a rescission of either the summary judgment
granted in the first matter, nor the default judgment in the second matter. The
prospects of success of the defences raised are remote to the extent that it
cannot be said to show the existence of a bona fide defence.
[39] In Childerley Estate Stores v Standard Bank of SA Ltd 17 it was held that a
judgment induced by fraud cannot stand. The requirements for succeeding in
12 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at [11]
12 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at [11]
13 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764J-765D confirmed in Ingosstrakh v
Global Aviation Investments (Pty)Ltd and Others 2021 (6) SA 352 (SCA) at [21] where „good cause‟ is
condidered in the context of rule 27(3)
14 Riddles v Standard Bank SA 2009 2 All SA 407 (T) at [9]
15 Silber v Ozen Wholesalers (Pry) Ltd 1954 (2) SA 345 (A) at 352Gff
16 Full bench in City of Tshwane Metropolitan Municipality v Brooklyn Edge (Pty) Ltd 2017 1 All SA
116 (GP) at [42] ff. In applications for rescission of a default judgment where Rule 31(2)(b) does not
ap
ply, the application may be governed by the provisions of Rule 42(1)(a) or the common law or both.
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impugning a judgment fraudulently obtained are for the applicant to prove the
respondent fraudulently, with the intent to mislead the court, gave incorrect
evidence diverging from the true facts to the extent that the court, had it been
aware thereof, would have given a different judgment. These principles were
confirmed by the Supreme Court of Appeal in Fraai Uitzicht 1798 Farm (Pty)
Ltd v McCullough and Others
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[40] The allegations that a fraud had been perpetrated in that the court had been
misled into believing the surety had not been signed, beggars belief. The plea
proffered by the applicant in the first matter did not contain any allegations of
fact upon which the respondent might have assumed a denial of having
intended to be bound as surety or that he would allege the surety offends
against the General Law Amendment for lack of bearing his s ignature. In the
absence of a disclosure by the applicant of the factual basis of a defence
against the surety, it cannot be said the respondent was or could have been
aware of what the applicant now alleges after the judgments had been granted.
After all, the sure tyship contains the applicant‟s initials, is signed by witnesses
and was duly uploaded on the respondent‟s electronic system. It is not disputed
that initials may signify signature by a surety.
[41] What is more, it is not disputed the applicant was authorised by special
resolution to sign all documents on behalf of Hilton. Nor is it disputed some of
the signatories to the special resolution signed the suretyship as witnesses to
the applicant‟s signature of the suretyship. In my view, any contention the
applicant had not appended his initials to the suretyship with the intention to be
bound as surety is implausible, regard being had to the prevailing
circumstances and the context in which he put his initials to the suretyship. It
would require the court to believe that the respondent would have been
would require the court to believe that the respondent would have been
expected to advance substantial credit to Hilton in the absence of security. I
find such a proposition unlikely.
17 1924 OPD 163
18 [2020] JOL 47818 (SCA) at [16] with particular reference to Schierhout v Union Government 1927
AD 94 at 98. Rowe v Rowe 1997 (4) SA 160 (SCA); [1997] 3 All SA 503 (A) at 504 . Makings v
Makings 1958 (1) SA 338; [1958] 1 All SA 510 (A) at 342H-345A.
14
[42] These are some of the facts and circumstances I alluded to which is strongly
indicative of the respondent not having misled the court in the summary
judgment proceedings, nor when taking default judgment. I can find no
indication of the respondent having had the intention to mislead the court as
alleged by the applicant or at all. I am not persuaded that a court, even had it
been specifically informed of the indication in Section D of the application form
that Hilton offered security, be it personal security or otherwise, judgment would
not have been granted, the more so in the context of the facts and
circumstances I have referred to.
[43] As regards the „ justa causa ‟ ground, Mr Naidoo argued on behalf of the
applicant that if no fraud is found to exist, it is contended that no deed of
suretyship was signed by the applicant and, as there is no valid suretyship
between the parties which supports the orders granted, it follows there is no
just cause or lawful ground upon which the orders were granted. During
argument, Mr Naidoo made it clear that the applicant‟s
reference to just cause
was not iustus error in the sense of seeking to avoid the contract and
repudiating his apparent consent to it. It is simply that firstly, no suretyship had
been offered at all because he did not intend to do so and secondly it was not
signed as a result of which no suretyship came into being.
[44] In Childerley it was held that a non-fraudulent misrepresentation is not a
ground for setting aside a judgment. Iustus error can be a ground only in rare
and exceptional circumstances. The court held:19
“We arrive at this position then that so far as justus error is concerned default
judgments may in some cases be set aside under the Roman-Dutch Law on the
ground of justus error, and that judgments, whether by default or not, may be set
aside in the seven exceptional cases above-mentioned on the ground of
instrumentum noviter repertum, though evidently some of those cases are nowadays
instrumentum noviter repertum, though evidently some of those cases are nowadays
obsolete and inapplicable. . . . There may be other exceptional circumstances. But I
must say that I know of no such further general application of the doctrine of justus
error to judgments as would entitle the vanquished party to bring an action to set
aside a judgment only on the ground that the Court gave the judgment in error, even
19 At 168.
15
if such error was just and induced by a non-fraudulent misrepresentation made by
the other party to the case.”
This was broadly confirmed in Moraitis Investments (Pty) Ltd and Others v
Montic Diary (Pty) Ltd and Others.20
[45] In Vilvanathan and Another v Louw N O 21 a full bench of the Western Cape
High Court confirmed the guiding common law principle of the demand for
certainty and finality of judgments. 22 The court noted the apparent distinction
drawn in the Courts of Holland between rescission of default judgments granted
without going to the merits of the dispute between the parties and rescission of
final and definitive judgments. In the former, a court enjoyed wide powers of
rescission. In the latter, the court being functus officio, judgments could only be
set aside on the limited grounds mentioned in Childerley, namely fraud and
exceptional cases of iustus error.23 Having due regard to De Wet and Others v
Western Bank Ltd 24 the following propositions are distilled by the judges:25
“(1) This court's common-law power to rescind its own judgments and
orders, at least in cases where the merits of the dispute between the parties
have not been gone into, is not confined to cases of fraud or the exceptional
cases of justus error which are referred to in the Childerley case, supra, but
may be exercised on wider grounds than those;
(2) Generally speaking, this court, like the Courts of Holland, is
empowered to rescind its judgments and orders given in default of
appearance 'on sufficient case shown' …: the word 'case' may be a misprint
here for 'cause'); this is a discretionary power, the exercise of which is
influenced by 'considerations of justice and fairness, having regard to all the
facts and circumstances of the particular case'…;
(3) The applicant for rescission, who bears the onus in this regard, has to
satisfy the court, inter alia, that 'there was some reasonably satisfactory
20 [2017] 3 All SA 485 (SCA); 2017 (5) SA 508 (SCA) at [13]
21 2010 (5) SA 17 (WCC)
22 Vilvanathan at p.22H with reference to Colyn
23 Vilvanathan at p 20Fff
24 1979 (2) SA 1031 (A) at 1042F- 1043A
25 Vilvanathan at 21E-I
16
explanation why the judgment was allowed to go by default'”
[46] Having regard to the facts and circumstances prevailing in respect of the
suretyship and the signing of it, albeit by appending only his initials thereto, I
find the applicant has failed to show good or sufficient cause for the res cission
of the judgment in both matters. There simply is no bona fide defence indicated.
I find that a valid suretyship came into being under the circumstances the
applicant appended his initials to it. It follows that no iusta causa exists for the
rescission of the judgments. I also can find no reason why the interests of
justice between the parties demands the setting aside of either of the
judgments granted against the applicant.
Striking out
[47] The respondent applied for the striking out of objectionable content in the
founding affidavits to both matters in terms of rule 6(15). These pertain to
allegations
of fraud made against the respondent‟s attorneys of record.
[48] Rule 6(15) allows for the striking out of any matter which is scandalous,
vexatious or irrelevant. The court may not grant the application unless satisfied
the applicant is prejudiced should it not be granted.26
[49] The allegations complained of appears not to be irrelevant having regard to the
fact that fraud is the basis upon which the applicant sought to have the
judgments set aside. To my mind, it cannot be said the matter is vexatious in
the sense of it being worded with the intention to harass or annoy. 27 It may well
be construed to be scandalous in that, if not abusive, it quite possibly is
defamatory of the respondent‟s attorneys.28
[50] I am not persuaded that the respondent is prejudiced by the offending
allegations against its attorneys however egregious it may be. I and am not
inclined to grant the applications for striking out. During argument I was
informed that a claim for defamation had been instituted by t he respondent‟s
26 Van Zyl v Government of RSA [2005] 4 All SA 96 (T) at [122]
27 Helen Suzman Foundation v President of the Republic of South Africa and Others 2015 (2) SA 1
(CC) at [28]
28 ibid
17
attorneys in respect of the offending allegations. It has progressed beyond
discovery. I am loathe to make any finding in striking out allegations which may
be perceived as constraining any decision to be made by the court adjudicating
upon the defamation claim.
Costs
[51] Ms Blumenthal submitted that an order be made de bonis propriis against the
applicant‟s attorneys. She argued the applicant‟s case was hopeless and
brought with the assistance of the applicant‟s attorneys, not caring whethe r the
allegations made were true or false, in which case they acted recklessly or with
gross negligence.
[52] In Public Protector v South African Reserve Bank
29 the constitutional court by
majority held that a court is bound to secure a fair and equitable outcome in
deciding awarding costs with reference to the circumstances of the case. It
confirmed that a costs award falls within a court‟s discretion and may be
awarded when a court wishes to mark its disapproval of the conduct of a
litigant. Where the conduct of a litigant has prejudiced another party the award
of a punitive costs order may be justified.30
[53] Having regard to the facts in these matters, the allegations regarding fraud was
ill advised and ill conceived. In my view, it deviated from the standard required
to a disturbing degree, though not to the extent of warranting an order for costs
de bonis propriis.
[54] Having regard to all of the above, I find that the applicant should pay the costs
of the rescission applications on the scale as between attorney and client.
Order
[55] In case number 2022-031620, I order as follows:
29 2019 (6) SA 253 (CC) at [222]ff
30 Limpopo Legal Solutions v Eskom Holdings SOC Ltd d [2017] JOL 38860 (CC) at [38]
-
18
1. The application for the rescission and setting aside of summary
judgment against the applicant dated 24 May 2023 is refused and
dismissed;
2. Costs of the application for rescission and setting aside of summary
judgment to be paid by the applicant on the scale as between attorney
and client;
3. The application to strike out is refused.
[56] In case number 2022-045734, it is ordered that:
1 The application for the rescission of judgment against the applicant
dated 19 July 2023 is refused and dismissed;
2. Costs of the application for the rescission of judgment against the
applicant to be paid by the applicant on the scale as between attorney
and client;
3. The application to strike out is refused.
N. S. KRÜGER
NAME OF JUDGE
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Electronically submitted
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to the parties /
their legal representatives by email and by uploading it to the electronic file of this
matter on CaseLines. The date of the judgment is deemed to be 6 October 2025.
For the applicant in both
matters :
Adv K Naidoo instructed by Maharaj Attorneys
19
For the respondent in both
matters:
Adv R Blumenthal instructed by NVDB Attorneys
Date of hearing and
argument:
10 June 2025
Date of judgment: 6 October 2025
1