IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 116619/2023
In matter between:
LINDESH TRADING ENTERPRISE (PTY) LTD AND ANOTHER First Applicant
LINDA MANYANE Second Applicant
THEPISO CHERITY ALLETTA MAWELA Third Applicant
and
NEDBANK LIMITED Respondent
JUDGMENT
STONE AJ
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
03 / 10 /2025
…..…………............. ……………………
SIGNATURE DATE
Page 2
[1] This is an application for the rescission of a n order which was made on 27
September 2023 by Malatsi-Teffo AJ in the absence of the applicants.
[2] The respondent’s counsel conceded during argument that the order was
erroneously sought and erroneously granted, as contemplated in rule 42(1)(a),
as the order was applied for, and granted contrary to provisions of a pre-
existing order that was granted on 8 May 2023 by Mo gotsi AJ. Respondent’s
counsel however contend s that, this notwithstanding, the court should still
exercise its discretion to refuse the rescission of the judgment of 27
September 2023. The issue for decision is whether or not I should exercise
my discretion to rescind the order of 27 September 2023.
BACKGROUND: COURT ORDERS
[3] The respondent instituted an action against the first, second and third
applicants under case number 2022/048534, based on a written variable rate
instalment sale agreement in terms whereof the respondent sold a certain
Hyundai vehicle to the first defenda nt. The total amount claimed in the
summons against the first applicant was R389 965.87. The respondent’s claim
in the action against the second and third applicants is for an amount of
R312 833.74, based on limited suretyships signed by them in favour of the
respondent for debt of the first applicant.
[4] The respondent subsequently applied for default judgment. The second
applicant says she attended the court when, on 8 May 2023 Mogotsi AJ made
an order by agreement between the parties, in the following terms:
Page 3
“1. The matter is postponed sine die for the respondents to pay the full arrears,
and instalment amounts to date within six months from the date of this order.
2. If the respondents fail to pay the full arrears and outstanding amount within six
months, the applicant can approach the court on papers duly supplemented for
an order for default judgment.
3. The respondents are ordered to pay the wasted costs of the application.”
[The respondents referred to in the order are the applicants in the present
rescission application, and the applicant referred to in such order, is the
respondent in the present application].
[5] Before the six-month period in paragraph 1 of the order of Mogotsi AJ had run
out, the respondents’ attorneys however prematurely launched a further
default judgment application, signed and dated 20 July 2023. It appears from
a stamp of the Registrar that it was issued on 1 August 2023. The six months
period mentioned in the order of Mogotsi AJ would only have expired on 7
November 2023. In terms of paragraph 2 of the order application could only
have been made after the six months period had expired, if the applicant failed
to make payment within the six months . The application was therefore
premature, made contrary to the order of Mogotsi AJ, and it was therefore
unlawful.
[6] The second default judgment application (under case number 2022/048534),
served before Malatsi-Teffo AJ on 27 September 2023 . The application was
made on the basis that the applicants (defendants in the action) had failed to
enter appearances to defend. No mention was made in such application of the
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order of 8 May 2023. I have noted that the practice notes of counsel for the
respondent who attended to the application, also did not mention the existence
of the order of 8 May 2023. The default judgment application was not clear in
all respects as it indicated in the first paragraphs thereof that an order would
be sought (without indicating against which defendant it would be sought), for
payment of estimated damages being the total of “payables not yet paid”
minus the value of the vehicle from date of it being placed in possession of the
respondent, return of the vehicle, in terest and costs. After setting out some
facts usually contained in a default judgment application such as allegations
concerning service of the summons and the respondent’s opposition to
mediation (without referring to the order of 8 May 2023), a t the end of the
application it was however stated that judgment would be sought against the
first defendant (the first applicant in case), for confirmation of cancellation, the
return of the vehicle, costs, and that the remainder of the relief be postponed
sine die. It appeared from the record on Case lines that served before Malatsi-
Teffo AJ on 27 September 2023 that no return of service in respect of this new
default judgment application was filed on record, save for a return of service
in respect of the third applicant.
[7] Despite the order of Mogotsi AJ, the default judgement application was set
down by the respondent’s attorney on 27 September 2023 . Malatsi-Teffo AJ
granted default judgment and made an order on such date against “the
Defendant” for confirmation of the cancellation of the instalment sale
agreement, restoration of possession of the vehicle and costs on an attorney
and client scale. Malatsi-Teffo AJ also ordered that prayers for damages were
postponed sine die.
Page 5
THE RESCISSION APPLICATION
[8] Acting without legal representation, the second applicant subsequently filed
the present rescission application. According to the electronic date indicated
on the papers filed on Case lines, the application was filed on 09 November
2023. This was shortly after the second applicant became aware of the order
in October 2023. The notice of motion was however not duly signed by the
second applicant. The founding affidavit was signed but not commissioned
under oath. As the first affidavit in support of the rescission application was
not deposed to under oath, the affidavit is not admissible and I have not taken
the contents thereof into account.
[9] A signed application , with founding affidavit commissioned under oath , was
filed on 21 October 2024, and a “supporting affidavit” was filed a week later
on 28 October 2024. It is evident therefrom that it was compiled by a lay
person. The respondent’s answering affidavit was field on 29 January 2025.
[10] At the inception of the hearing, I raised with both counsel the fact that the order
of 27 September was at variance with the order of 8 May 2023, and I allowed
counsel to provide me with their views thereon . Mr Lotter, who appeared for
the respondent, conceded that the order was erroneously sought and
erroneously granted, and he did not dispute that it was granted in the absence
of all the applicants. Mr Lotter however submitted that I still have a discretion
to refuse the rescission of judgment, as the granting of judgement is inevitable,
and essentially will have no practical effect. I return to this later.
APPLICATION TO REMOVE THE MATTER FROM THE ROLL
Page 6
[11] It appears from the application documents that the applicant was acting
throughout on her own behalf and on behalf of the first applicant. There is no
indication that she acts on behalf of the third applicant, although such person
is indicated as an applicant.
[12] At the inception of the hearing , Mr Ensheathe appeared. I understood him to
indicate that he appeared on behalf of the second applicant and the first
applicant of which the second applicant is a director. He indicated that he was
briefed to seek an order that the matter be removed from the roll or postponed.
As it did not appear from the record that any attorneys have entered
appearance on behalf of any of the applicants, I raised with Mr Ensheathe that
he must satisfy the court that he was duly briefed to appear in the matter, as,
from the inception of the a pplication, no attorney had been on record for the
applicants, and it appeared that the second a[plicant had been driving the
application throughout, filing the application papers.
[13] The matter stood down, and a notice of appointment of attorneys who briefed
Mr was eventually produced. Mr Lotter accepted that such attorneys were duly
on record. This issue having been resolved, Mr Netshiavha indicated that he
was briefed late and that he and the attorney required more time to consider
the matter. He indicated that the second applicant realised late that she would
need to be represented , as reason for the request to remove the matter .
However, n o proper application was placed b efore the court for the
postponement of the matter, nor even an affidavit from the attorney, and
proper reasons were not provided in argument by Mr Netshiavha why the
applicants have left it so late to apply for a postponement. As a proper ly
Page 7
motivated and timeous application for postponement was not made, and in the
absence of a tender of costs of a postponement, I exercised my discretion to
refuse the request that the matter be removed from the roll or be postponed.
[14] After my ruling as aforesaid, the matter stood down at the request of the
applicants’ counsel. After the adjournment, he informed me that he was
unable to proceed, as he only had instructions to deal with the postponement
application, and no more. He was instructed to withdraw. He indicated that
his instructions were that the second applicant would proceed to argue the
matter, in circumstances where she ha d been dealing with the matter
unrepresented since the inception of the application. I indicated to Mr
Netshiavha that I was willing to stand the matter down if he required time to
prepare further. He however reiterated that he was instructed to withdraw ,
and that his instructions were limited to request the removal or postponement
of the matter. The matter then proceeded with the second applicant appearing
in person . She indicated that she was appearing on behalf of the first
applicant, and on her own behalf. She explained that she and the third
applicant are directors of the first applicant company, but she was not acting
on behalf of the third respondent.
LOCUS STANDI
[15] The court order of 27 September 2023 refers only to an order against a
defendant, whereas the order of 08 May 2023 referred to “respondents” . Mr
Lotter however submitted that it can be accepted that the order of 27
September 2023 was granted against the applicants as a collective. The order
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refers to judgment against “the Defendant”, without identifying which
defendant. If regard is had to the default judgment application and the relief
granted it appears that the order must have been intended as an order against
the first defendant (first applicant)1 Although it was only made against the first
applicant, it does have implications for the principal debtor and the sureties.
[16] Mr Lotter initially contended that the second applicant was not entitled to
appear on behalf of the first applicant2. He however conceded that the second
applicant at least have locus standi in her personal capacity . He abandoned
the locus standi point later in his argument.
CONDONATION
[17] As a lay person, the second applicant has not clearly indicated in her affidavits
whether she relies on the common law, Rule 31 or Rule 42.
[18] The respondent submitted that the applicants have failed to make application
timeously within the 20 day s period allowed in rule 31. Mr Lotter however in
argument indicated that he would not persist to rely on th e absence of a
condonation application further in the interest of justice . I understood him to
take this stance as the application was made by a lay person. I am also of the
view that the failure to make the application timeously and to file duly signed
1 As the order provides for confirmation of the cancellation of the agreement, and an order that the
vehicle be restored,
2 In view of the decision in Investec Securities (Pty) Ltd v Corail Investments Holdings (Pty) Ltd and
Others, and Yates Investments (Pty) Ltd v Commissioner of Inland Revenue.
Page 9
and commissioned papers in the correct format when the application was
instituted, and only signed and commissioned papers in October 2024 , and
the filing of a further affidavit, should be and is hereby condoned. The
respondent has had ample time to reply thereto. The court also has a
discretion to grant relief mero motu.
FACTS AND SUBMISSIONS
[19] After her counsel withdrew, t he second applicant indicated that she w ould
proceed in person, and she made various submissions . She also presented
evidence which were inadmissible as it was not on the papers . Submission
which she made in argument, and factual allegations contained in her
affidavits under oath, may be summarised as follows:
19.1 She relies on the fact that the six-month period had not run out when
judgment was granted, and that the order was erroneously sought and
granted. She indicated that even before the order of 8 May 2023, she
wrote a letter to the respondent on 28 April 2023 requesting to make
a payment arrangement. The intention of the postponement was to
allow for an opportunity to pay or make a payment arrangement with
the respondent. She avers that the order of 8 May was made to allow
for engagement with the respondent to make arrangements about the
payments to be made. After the order of 8 May 2023, she continued
to correspond with the respondent . She mentions a letter dated 12
May 2023, requesting to make a payment arrangement, to which the
respondent answered on 26 May 2023, requesting documentation
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regarding the vehicle and financial details, and inter alia informing her
that an immediate payment of 50% would be required of the arrears,
for the bank to be willing to assist with a payment arrangement of the
arrears over the remaining contract period which runs until 2026. She
says that, according to the respondent’s consultant, the purpose of
the correspondence was to determine which payment arrangement
would be most suitable for he r. She avers that she provided
information and the address where the v ehicle was kept for
evaluation, as requested by the respondent. However, she avers that
whilst still waiting for the respondent to revert, she received a text
message from a recovery expert on 17 October 2023 ( still well within
the 6 months period of the order of Mogotsi AJ), informing her of the
court order of 27 September 2023, and a warrant for delivery of the
vehicle. She was unaware of the default judgment application before
17 October 2023. The respondent did not produce further
correspondence. She filed her rescission application as aforesaid in
November 2023.
19.2 She submits that she was not in wilful default of the order of Mogotsi
AJ. She was not aware of the default judgment application. She
contends that she had good prospects, and was willing, to come to an
arrangement wit h the respondent, and if the respond ent’s
representatives had made contact with her, she would have adhered
to an arrangement, essentially contending that she would have been
able to pay in terms of an arrangement.
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19.3 In argument she also relied on the fact that , as the order of 8 May
2023 made provision that she could make payment within six months,
she intended to make arrangements with the respondent within such
six months, but before arrangements could have been concluded, the
respondent simply proceeded to obtain the court order.
19.4 She avers that the vehicle was repossessed on 3 October 2024 . The
statement of account relied on by the respondent shows storage fees
debited from early December 2024, and the vehicle was therefore
evidently repossessed whilst the rescission application was still
pending. On 8 October 2024 she made a payment of R190 000.00
(this payment is not disputed by the respondent). She avers that it was
paid from her pension. This payment substantially reduced the
outstanding amount, yet it did not extinguish all the arrears. She also
avers that she received correspondence from the respondent 8
October 2024 which stated that the vehicle was valued for only
R56 000.00. I did not understand her to concede the value of the
vehicle. She complains that, despite her willingness to make payment,
the vehicle was still retained by the respondent.
[20] In its answering affidavit the respondent confirms that it indeed responded on
26 May 2023 to the second applicant’s letter of 12 May 2023. From this letter,
attached to the respondent’s answering affidavit, it is evident that the
particulars of the address where the vehicle was being kept were requested .
However, it was indicated that an immediate payment of 50% would be
required for an arrangement, as well as further documents which were
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requested. The deponent on behalf of the respondent refers to this letter. The
letter the letter indicates that if the information required were not received “we
will be proceeding to finalise legal action”. No mention of the period of six
months was mentioned in such correspondence.
[21] In the answering affidavit of the respondent reference is made to the order of
8 May 2023. It is sta tes that the applicants ’ failure to make payments within
six months “ lead to the Respond ent applying for default judgment ”. The
deponent on behalf of the respondent submits that the respondent was “legally
and procedurally entitled to the order granted on 27 September 2023” and that
the application should consequently be dismissed. For reasons already
mentioned, t hese statement s are incorrect, and indeed misleading, as the
application for default judgment was made well before the six months period
had ran out.
[22] It appeared from the record on Case lines that no returns of service in respect
of the default judgment application of 27 Septem ber 2023 were filed, except
in respect of the third applicant. Returns of service in respect of the other
applicants were not on record when the order of 27 May 2024 was granted.
Returns of service filed in respect of the first and second applicants were dated
in February 2023, before the default judgment application was even lodged in
August 2023. Mr Lotter could not explain this and suggested that the
respondent’s attorney be allowed an opportunity to file return s of service, if
they exist, in respect of the other applicants, for purposes of the 27 September
2023 application. As I was of the view that it could possibly have a bearing on
the exercise of my discretion, I issued directives to the limited effect that if
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such returns exist, it could be submitted under oath, and I also afforded the
second applicant an opportunity to respond thereto. Returns of service were
produced by the respondent’s attorney under oath . One return of service
indicated that the default judgment application was served on the first
applicant by affixing it to the premises at its domicile address, but a return of
service produced in respect of the second applicant, also by affixing the
application to the gate, indicated that it was served at her “registered address”.
The second applicant filed an affidavit and responded under oath that she
never received service or notice of the application before the order, and that
the respondent was aware of her actual address, which appears from
correspondence received by her from the respondent. She provided copes of
correspondence indication that the respondent had her actual address of
residence. There is no reason to doubt h er evidence that she did not receive
the application. It stands to reason that if she did, she would have attended to
the matter as she did prior to the 8 May 2023 application. Her presence on 27
September 2023 was effectively precluded as she did not receive the
application and did not have knowledge thereof. It remains unexplained why
these returns were not filed on record when the judgment was granted on 27
September 2023, and why returns wer e on record showing service dates
before the application was lo dged. The issuing of the default judgment
application and actions taken by the respondent pursuant to such application
were in my view in any event unlawful and tainted as it was done contrary to
a court order.
[23] Mt Lotter submitted that available facts suggest that if a rescission is granted,
it will merely delay the inevitable. He referred to the fact that the action was
Page 14
not opposed, and the payment history which appeared from a statement
(transaction history) which was not disputed by the second applicant, which
indeed shows that the amount outstanding was in fact not paid within 6 months
after the order of 8 May 2023. It shows that an amount of R190 000.00 was
paid in October 2024, apparently after the vehicle was possessed, but a
substantial amount still remains to be paid. I revert to this below.
[24] Consonant with his view that the order of 27 September 2023 was made
against all the applicants, Mr Lotter also submitted that if a rescission is
ordered, it should only be in respect of the second applicant.
RULE 42(1)
[25] In terms of Rule 42(1) the court may, in addition to any other powers it may
have, Mero motu or upon the application of any party affected, rescind or vary
an order erroneously sought and erroneously granted in the absence of a party
affected thereby. It is not necessary to show good cause for this this subrule
to apply.3
[26] An order will be erroneously sought and erroneously granted if there existed
at the time of its issue a fact which the court was unaware of, which would
have precluded the granting of the judgment and which would have induced
the court, if aware of it, not to grant the judgment.
3 See for example Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (SA 466 € at 471 H; Gassama v
Mercedes-Benz Financial Service SA (Pty) Ltd2023 (1) SA SA141par [29].
Page 15
[27] As the respondent’s counsel conceded during argument that the order of 27
September 2023 was erroneously sought and erroneously granted , and as it
was not disputed that it was granted in the absence of the applicants , the
jurisdictional facts are present for relief in terms of rule 42(1)(a).
[28] In my view the concession was unavoidable, in view of the order of 8 May
2023. In my view the inference is justified that the learned judge would not
have made an order on 27 September 2023 if she was aware of the order of
8 May 2025 . Although the order was on record on Case lines , neither the
default judgment application nor counsel’s practice note alerted the learned
judge to the pre -existing order. The learned judge may not have noted the
order or have not considered the import of the 6 months period in the order of
8 May 2023. The fact that it was erroneously sought or erroneously granted is
also supported by the fact that the order made on 27 September 2023 did not
rescind or vary the order of 8 May 2023, and as the orders are contradictory.
[29] In my view rule 42 (1)(b) may also be applicable as there exists an ambiguity
created by the order of 27 September 2023. Although the order itself,
considered on its own, is not ambiguous on the face of it, it does create an
ambiguity to the extent that it was made in the 6 months period provided for in
the order of 8 May 2023. The two orders are contradictory, if regard is had to
the six months period. This is especially so as the order of 8 May 2023 was
not rescinded or varied.
Page 16
[30] It is trite that court orders should be adhered to. It is a well-established rule
that once a court has duly pronounced a final judgment or order, it only has
the power in limited circumstances to set aside or vary it.
[31] In Zuma v Secretary of the Judicial Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public Secor
Including Organs of State and Others,4 the Constitutional Court observed:
“[97] … There must be an end to litigation, and it would be intolerable and
could lead to great uncertainty if courts could be approached to
reconsider final orders made.
[98] There is a reason that rule 42, in consolidating what the common law
has long permitted, operates only in specific and limited
circumstances. Lest chaos be invited into the process of
administering justice, the interest of justice requires the grounds
available for rescission to remain carefully defined. In Colyn, the
Supreme Court of Appeal emphasised that ‘the guiding principle of the
common law is certainty of judgments. Indeed, a court must be guided
by prudence when exercising its discretionary powers in terms of the
law of rescission, which discretion, as expounded above, should be
exercised only in exceptional cases, having ‘regard to the principle
that it is desirable for there to be finality in judgments.”
4 2021 (11) BCLR 1263 (CC) at paras [97] – [98].
Page 17
[32] In Zuma5 the Constitutional Court held that once an applicant has met the
requirements for rescission, a court is endowed with a discretion to rescind its
order. The wording of Rule 42 postulates that a court “may”, not “must”,
rescind or vary an order. The Rule is merely an empowering section and does
not compel the court to set aside or rescind anything. The discretion must be
exercised judicially.
[33] The respondent’s counsel strongly relied on Nkosi v ABSA Bank Ltd6 where
the court exercised its discretion against rescission despite the fact that the
applicant has met all the jurisdictional requirements of Rule 42(1)(a), because
a rescission would have had no practical effect and merely caused delay. In
that matter the applicant was not given a notice as required in terms of section
129 of the National Credit Act, 34 of 2005. He however did receive the
summons, and th e notice and track trace reports attached . He entered an
appearance to defend, failed to plead and was notified of hearings in court on
three separate occasions before default judgment was granted against him.
He failed to attend court, and he then waited until default judgment was
entered to raise only one defence, namely a failure to be provided with a
section 129 notice. In that matter he disputed neither his indebtedness nor
his breach of the relevant loan agreements. He was also absent at the hearing
of his application , but his application for rescission and his founding and
replying affidavits were considered by the court.
5 Supra at para [53].
6 2023 JDR 2070 (GP)
Page 18
[34] Vivian AJ held that it could hardly be said that the applicant had made a
determined effort to place his case before the court and held that he should
exercise his judicial discretion against rescinding the order (as he was of the
view that it will have no practical effect and merely cause delay ). He pointed
to the fact that the court’s roll is notoriously busy, and that litigants who do not
exercise their right to be heard when properly notified, cannot expect as of
right to be granted rescission of judgment based on a defence which will in all
likelihood only achieve a delay. He found the applicant did demonstrate a real
intention to take advantage of any p ause created by the notice, and he does
not say that he would have done so had he received the notice. Vivian AJ
was of the view that it would simply be another matter clogging the court’s roll.
He found that it would not be in the interest of justice to rescind the order.
[35] I have considered Nkosi and other cases where the failure to give notice in
terms of section 129 of the National Credit Act was the basis of rescission
applications. In Mphuthi v Mercedes Benz Financial Services (Pty) Ltd ,7
Vivian AJ dealt with another matter where a section 129 notice in terms of the
National Credit Act was not received by the applica nt. The learned judge
exercised his discretion to rescind a default judgment, in circumstances where
the applicant’s default could not be said to be wilful or due to gross negligence,
and where the applicant said she did not receive summons which was served
by affixing it to the applicant’s door and her subsequent conduct confirmed
this assertion. The court held that the rescission of the judgment would place
the applicant in a better position to reach a settlement with the respondent.
7 2025 JDR 3730 (GP).
Page 19
[36] Williams v Shackleton Credit Management (Pty) Ltd ,8 was also a case
where a section 129 notice was not duly given to the applicant. Contrary to the
finding in Nkosi, Bishop AJ held9 that the court had no discretion to decline
rescission in circumstances where the requirements of Section 42(1)(a) have
been complied with. 10 Bishop AJ’s expressed an understanding of Rule
42(1)(a) that if there was an error that is evident from the papers that precluded
the grant of default judgment, then the judgment was erroneously sought and
erroneously granted, and a rescission must follow. He opined that the
absence of a defence is irrelevant, and that in such circumstances a court
would not have a discretion to refuse a rescission. He did however not refer
to Zuma11.
[37] Although Bishop expressed sympathy for the pragmatic approach, rather the
formal approach12, he found that he was compelled to rescind where an error
was evident on the papers which precluded a default judgment . He however
stated13 that if he was wrong that he did not have a discretion, he would have
exercised his discretion to rescind , as an opportunity to negotiate after
judgment is not equivalent to negotiating after judgment, as a credit provider
would understandably be hesitant to compromise on what is owed with a court
order in its favour, and as the applicant indicated in its founding affidavit that
he would have taken advantage of the opportunity presented by section 129.
8 2024 (3) SA 234 (WCC) at para [60].
9 2024 (3) SA 234 (WCC).
10 Id at para [59].and [60].
11 Supra n 4.
12 Williams, supra n6. Compare his discussion at par [58].
13 Williams, supra n6 par [65].
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[38] In Nkosi14 the learned judge also referred to Sebola and Another v Standard
Bank of South Africa Ltd15 where the Constitutional Court held that a section
129 notice in terms of the National Credit Act should be interpreted with
section 130 which makes it clear that an action instituted without prior notice,
is not void, but the proceedings have life, and must be adjourned. The bar to
proceedings is therefore not absolute in case of non -compliance with section
129 notice requirements, but only dilatory. 16
[39] In Kgomo and Another v Standard Bank of South Africa and Others 17
Dodson J held that a judgment was erroneously sought and erroneously
granted in the absence of compliance with the notice requirements in terms of
section 129. The Court analysed the judgments of the Constitutional Court 18
in Ferris and Another v FirstRand Bank and Another19, Sebola and
Another v Standard Bank of South Africa Ltd and Another20 and Kubina
v Standard Bank of South Africa 21, and came to the conclusion that strict
compliance with section 129 remain s the order of the day, and that section
14 Supra, n 4 par
15 2012 (5) SA 142 (CC) par [53].
16 In Nkosi, supra n 6 Vivian AJ also referred to Van der Merwe v Bon aero Park 1998 (1) SA 697 (T)
at 709 D – Where a summary judgment application was served only 8 days before judgment. Maritz
AJ refused to rescind the judgment as he was of the view that if referred back for hearing, summary
judgement would still be granted.
17 2016 (2) SA 184 (GP
18 At paras [35] to [58]The Court analysed the judgments of the Constitutional Court in in Ferris and
Another v FirstRand Bank and another, Sebola and Another v standard Bank of South Africa Ltd and
Another 2012 (5) SA 142 (CC) and Kubina v Standard Bank of South Africa 2014 (3) A 56 (CC), and
came to the conclusion that strict compliance with section 129 remain the order of the day, and that
section 130(4)(b) peremptorily requires the court to adjourn the proceedings. The judgment was
rescinded.
19 2014 (3) SA 39 (CC)
20 2012 (5) SA 142 (CC)
21 2014 (3) SA 56 (CC)
Page 21
130(4)(b) peremptorily requires the court to adjourn the proceedings. The
judgment was rescinded. 22
[40] In Cohen N.O. and Another v Deans,23 the Supreme Court of Appeal referred
to Standard Bank of South Africa Ltd v Roestof ,24 in which matter it was
held that a technical defect due to some obvious and manifest error which
causes no prejudice to the defendants, can be overlooked.
[41] The Supreme Court of Appeal also referred to the decision in Shackleton
Credit Management (Pty) Ltd v Macrozone Trading 88 CC and Another,25
where a different approach was followed. The court dealt with the suggestion
that a defective summary judgment application could be cured if the defence
dealt with the merits of the claim. Wallis J found that it was incorrect. The fact
that a defence had been held out and argued, was found not to cure the defect
in the particulars of claim or the summary judgment application.
[42] In Macrozone26, Wallis J held as follows:
“[25] Insofar as the learned judge suggested that a defective application
can be cured because the defendant or defendants have dealt in detail
with their defence to the claim set out in the summons that is not in
my view correct. That amounts to saying that d efects will be
overlooked if the defendant deals with the merits of the defence. It
22 A similar approach was followed in Buys v Changing Tides 17 (Pty) Ltd [2013] ZAWCHC150; 2013
JDR 2286 (WCC).
23 2023 JDR 1216 (SCA).
24 2004 (2) SA 492 (W) at 496 F – H.
25 2010 (5) SA 112 (KZP).
26 Id, par 25
Page 22
requires a defendant who wishes to contend that the application is
defective to confine themselves to raising that point with the
concomitant risk that if the technical point is rejected, they have not
dealt with the merits. It will be a bold defendant that limits an opposing
affidavit in summary judgment proceedings to technical mattes when
they believe that they have a good defence on the merits. The fact
that they set out that defence does not cure the defects in the
application and to permit an absence of prejudice to the defendant to
provide grounds for overlooking defects in the application itself seems
to me unsound in principle. The proper starting point is the
application. If it is defective, then cadet quaestio. Its defects do not
disappear because the respondent deals with the merits of the claim
set out in the summons.”27
[43] In Cohen the court held that whether one follows the approach in Roest of or
Microzone, the defect in the particulars of claim, the reliance on an incorrect
trust deed, was not merely a technical defect, but went to the heart of the
claim.
[44] In Pienaar N.O. v Nano Inks KZN (Pty) Ltd and Others ,28 the courts held
that the failure to comply with Rule 28(2) was a fundamental procedural flaw
that cannot be overlooked. The defendant was not provided with the requisite
notice of an intended amendment, and the defendant was thereby denied the
27 See also Cohen N.O. and Others v Deans supra at paras [24] – [26].
28 Supra at para [41].
Page 23
opportunity to object. In that matter the court held that there would be no
prejudice if the rescission is granted and the default judgment was set aside.
[45] Mindful of the approached followed in the aforesaid decisions, in my view the
facts and considerations in the present matter are substantially different from
matters where the absence of compliance with a notice requirement was the
reason for rescission, or where a requirement such as service was not
complied with. The matter is also not in the nature of summary judgment
proceedings. I refer to the following:
45.1 In the first place, I am of the view the non -compliance with a court
order is on a different footing than a mere technical defect such as a
notice requirement or service. Court orders are not mere technical
stumbling blocks to relief. Court orders are enforceable and should be
complied with29. The applicants obtained rights in terms of the order
of 8 May 2023, and they could rely thereon that the court would be
adhered to.
45.2 The default judgment application was made contrary to clear
provisions of the 8 May 2023 order. In my view the application was
unlawful. The respondent and its attorneys were well aware of the
order, yet they proceeded with a default judgment application which
did not even mention the existence of the order of 8 May 2023 . The
application was signed on 20 July 2023 and filed early August 2023,
with the date of set-down already indicated as 27 September 2023. It
29 Vantage Goldfields SA (Pty) Ltd and Others v Aromantic (PTY) Ltd 2023 (4) SA 568 (SCA) pat [18].
Page 24
was launched prematurely , from the outset, without any reasonable
explanation for such conduct on its papers. This was done despite
the fact that the order of 08 May 2023 only allowed for an application
to be made if no payment was received after the period of six months
45.3 The order of 8 May 2023 was made by agreement . The default
judgment application and the order of 27 September were made
contrary to an agreement between the parties. The respondent acted
in breach of such agreement when making the application at variance
with the order of 8 May 2023.
45.4 The court order makes no provision for any circumstances which
would have justified the judgment before the expiration of the six-
month period. The court order cannot be reasonably understood in
any other wa y than that it provided the applicants with a six-month
period for payment and that an application could only be made
thereafter. The applicants cannot be blamed for accepting that they
would have had six months to make payment or engage with the
respondent to perhaps make a payment arrangement. They were also
entitled to rely thereon that no steps w ould be taken against them
within the 6 months period, or contrary to the order of 8 May 2023.
45.5 The order of 8 May 2023 was never rescinded or varied. When the
order of 27 September was granted, it created an untenable situation
that there existed two conflicting orders. This is not comparable to the
Page 25
mere non-compliance with a technical requirement such as in Nkosi
and Bon aero Park.
45.6 The order of 27 September 2023 had the effect that it denied the
applicants’ rights in terms of the court order of 8 May.
45.7 As appears from Sebola30 a f ailure to adhere to a court order has
different consequences than a failure to comply with the section 129
notice requirements.
45.8 The second order created an ambiguity or contradiction in respect of
the same subject matter.
45.9 There is no proof that the first and the second applicants actually
received notice of the default judgment that resulted in the order of 27
September 2023. The second applicant says it was not received.
45.10 It is evident from the circumstances that the court would not have
granted the order of 27 Septemb er 2023 if it was aware of the order
of 8 May 2023. The application for default judgment did not mention
the order of 8 May 2023.
45.11 As indicated above i t appears from the record that no r eturns of
service were on record before the court in th e application on 27
September 2023 in respect of first and second applicants.
30 Supra n 16.
Page 26
45.12 If the order of 27 September 2023 is left to stand, there will be two
conflicting orders on record in the same matter.
45.13 In the present matter it cannot be said that the judgment of 27
September was granted whilst the applicants ‘s were in wilful default
or that they were guilty of gross negligence. This is evident from the
order of 8 May.2023. The second applicant said she did not receive
knowledge. The second applicant’s conduct rather show a willingness
and desire to engage with the respondent to make arrangements for
payment.
EFFECT OF A RESCISSION
[46] Mr Lotter requested that if a rescission is granted, it should only be in respect
of the second applicant. In my view the order of 27 September 2023 was
granted against the first applicant. Howe ver, due to the suretyships of the
second and third applicants, and the accessory nature thereof, they do have
an interest in the proceedings against the first applicant, and any outcome will
affect their rights. In my view it is not desirable to let the order stand in respect
of one applicant, and not the other.
[47] The respondent’s counsel submitted that if the order is rescinded, the
respondent will simply proceed again to apply for default judgment, as the six
months period had now elapsed, and the result would simply be that the court
would grant default judgment again, as the applicants are unable to make
payment of the amount claimed. He also argued that this should be
considered against the background that the applicants have not disputed that
Page 27
they owe amounts to the respondent and have not defended the action. The
applicant’s complaint is essentially that they should have been allowed the full
six months to negotiate a payment arrangement, as they were willing to pay
and would have been successful to achieve an arrangement. Mr Lotter also
relied on the fact that the vehicle had already been repossessed and that if
the order is rescinded, the vehicle would have to be returned, if it has not
already been sold.
[48] The respondent presented me with a sta tement containing the payment
history. The correctness thereof was not disputed. It appears therefrom that
the payments were not exemplary. A conspectus of the papers filed shows
that an amount of approximately R190 000.00 was actually paid shortly after
the vehicle was repossessed in 2024. But it still left a substantial balance, due
to interest However, it must be borne in mind that the applicants were not
afforded the full opportunity to make payment within the 6 mo nths period. A
huge amount of R190 000.00 was paid, according to the second applicant
from her pension monies in 2024 . This at least illustrates a willingness to
make payment, and she has also averred in her papers and provided proof of
attempts to engage with the respondent before and within such six -month
period. She has also expressed the desire and willingness in ar gument to
engage further with the respondent and to make payment or arrange for
payment. Although the payment history may suggest that the applicants
would have difficulty to make the full payment due, it is in my view not excluded
that the applicants would have been able to pay a negotiated amount or that
they could have been able to negotiate payments or make payments within
Page 28
the six-month period. The amount of R190 000.00 which was paid, is at least
an indication of a willingness to make payment.
[49] The matter must be considered against the background that the applicants
were denied the opportunity to act in terms of the court order of 8 May 2023.
The payment of R190 000.00 was made well after the order of 27 September
2023. However, i f regard is had to the statement of account (transaction
history) on which the respondent relies, the arrear balance on the first
applicant’s account was about R117 000.00 on 5 September 2023, and
around R124 000 .00 on 20 October 2023. If it is considered that the second
applicant was willing and able to pay an amount of R190 000.00 from her
pension, it cannot be excluded that the applicants would have been able to
pay a substantial amount within the six months period, negotiate terms of
payment, or could bring the arrears up to date, if the respondent had not acted
prematurely. She did not ignore the issue but actively engaged with the
respondent.
[50] As to the legal consequences of the removal of the vehicle, I am of the view
that this in itself cannot serve as a reason why a resci ssion should not be
granted in case. As indicated, it appears that the removal took place whilst the
application was pending. The present application may not have complied with
applicable rules in all respects, but it could not simply have been ignored. The
respondent took no steps in terms of rule 30. The respondent was responsible
for the order of 27 September 2023, and it c ollected the vehicle whilst the
present application is pending.
Page 29
[51] To allow the order of 27 September 2023 to stand, would be tantamount to
allowing the respondent to escape the consequences of its own unlawful
conduct in violation of a court order. In my view it is not in the interest of justice
that a creditor such as the respondent be allowed to act in contravention of a
court order, and then later say that its conduct must be left to stand as it has
now become a fait accompli.
[52] The fact that an order was granted on 27 September 2023 created uncertainty,
and after such judgment, it can be assumed that the respondent would have
been less willing to negotiate and come to an arrangement.31 If the judgement
is rescinded, it will offer the applicants a further opportunity to negotiate a
settlement or payment terms, and a further default judgment application may
well be unnecessary.
[53] In my view, a failure to rescind the judgment of 27 September 2023 would be
undesirable, and the court guard against setting a precedent that creditors
could apply to court at variance with that was agreed between the parties, and
then, after judgment was granted in error, simply contending that the order
should be left to stand on the basis that the debtor is not in a position to make
payment. This, in my view would not be in the interest of justice.
31 See for example Williams supra par 65.1 and Phuti supra par [41] where the possibility of
negotiations after a rescission order was taken into account when exercising the court’s
discretion to rescind.
Page 30
[54] Considering all the circumstances of this matter, and mindful of the authorities
mentioned herein, I am of the view that the I should exercise my discretion to
rescind the default judgment.
[55] As to the question of costs , the appearance on behalf of applicants was in
person, and I am of the view that the legal representatives briefed by the
second applicant are not entitled to costs. The respondent was not successful
in avoiding the rescission. In the circumstances I make no order as to costs.
An order is made in the following terms:
1. The default judgment granted by Malatsi-Teffo AJ on 27 September 2023 is
rescinded.
____________________________
STONE AJ
ACTING JUDGE OF THE HIGH COURT
On behalf of the first/second applicants: Adv Ensheathe / In person
On behalf of the respondent: Adv Lotter
Page 31
Date of hearing: 9 May 2025.
Date of Judgment: 3 October 2025