RE PUBLIC O F SOUTH AF R ICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 9105/2021
(1)
(2)
(3)
REPORTABLE: Y ES /NO
OF INTER EST TO THE JUDGES: Y ES /NO
RE V ISED.
DATE : 20 October 2025 SIGNA TU RE ..
In the matter between:
THE DEPARTMENT FOR SPORTS ARTS AND
CULTURE , LIMPOPO PROVINCE
And
PHOLILE BUSINESS SOLUTIONS CC
In re:
PHOLILE BUSINESS SOLUTIONS CC
And
APPLICANT
RESPONDENT
PLAINTIFF
2
THE DEPARTMENT FOR SPORTS ARTS AND
CULTURE , LIMPOPO PROVINCE
JUDGMENT
DU PLESSIS AJ:
Introduction:
DEFENDANT
[1] Before this Co urt is an opposed application in terms w hereof the applicant seeks
to have the merits and quantum orders granted against it, rescinded.
[2] The Applicant applies for the follow ing relief:
2.1 That the order against Applicant/De fendant on the 5th of February 2024
be rescinded.
2.2 That the order against Applicant/De fendant on the 6th of February 2024
be rescinded.
2.3 That the costs be aw arded to the Applicant only in the event of
opposition.
3
[3] The ma in issue to be decided is w hether the applicant has established that there
exists good cause for the rescission of these orders.
Background:
[4] It is common cause that the main matter w as set dow n for hearing on the 5th day
of February 2024.
[5] On the said date the applicant failed to appear at the Court and default judgment
w as granted against the applicant on the merits only.
[6] The applicant's did not provide an explanation as to w hy he did not attend Court,
he merely stated that he phoned his opponent at 10:09 to inform him that he w as
on his w ay to court, but that he w as unable to reach the respondent's attorney.
[7] The applicant only argued that he then w ent to Court but that the Court w as
empty upon his arrival.
[8] It is important to note that the time on w hich the Court proceedings w ould
commence w as stipulated in the notice of setdow n as 1 0am. All practitioners
are expected to be present at the time stipulated in the set dow n in order for the
Court to call the matters.
[9] Due to the fact that the applicant w as not present w hen the matter w as called,
the Court proceeded to grant the default judgment on the merits.
4
[1 O] The respondents attorney contacted the applicant's attorney and informed him
of that default judgment w as granted and that the matter w as postponed to the
follow ing day, 6 February 2024 for the hearing of the quantum .
[11] The attorneys of the respondent also served the order on the offices of the state
attorney. The order informed the attorney for the applicant that the hearing of the
quantum of the matter w as set dow n to start at 9am on 6 February 2024.
[12] The applicant informed the Co urt that its attorney arrived at Court on 9:30am on
the 6th of February 2024 and found on the roll on the notice board that the matter
w as heard at 9am .
[13] The applicant's attorney contacted the attorney for the respondent and w as
informed that the hearing of the quantum proceeded at 9am and judgment w as
granted againts the applicant on the quantum as w ell.
[14] On both occassions the judgments w ere therefore granted in absentia due to the
applicant and its legal representatives' failure to attend Court, despite being
informed of the time on w hich the proceedings w ould commence .
Legal Framework:
[15] The basis on w hich this application is brought before this Court, is Uniform Rule
31 (2)(b) that provides as follow s:
"(b) A defendant may within 20 days after acquiring knowledge of such
iudgement1 apply to court upon notice to the plaintiff to set aside such
1 My em phasis.
5
judgment and the court may , upon good cause shown, set aside the
default judgement on such terms it deems fit."
[16] The wording of Rule 31(2)(b) makes reference to 'such judgment.' In order to
understand what 'such judgment' is it is necessary to take on step back and look
at Ru le 31 (2)(a).
[17] R ule 31 (2)(a) provides as follows :
"(a) Whenever in an action the claim or, if there is more than one claim, any of
the claims is not for a debt or liquidated demand and a defendant is in default of
delivery of notice of intention to defend or of a plea. the plaintiff may set the
action down as provided in subrule (4) for default iudgment2 and the court may,
after hearing evidence, grant judgment against the defendant or make such
order as it deems fit."
[18] In other words, the reference to 'such judgeme nt' in Rule 31 (2)(b) refers to a
default judgment as set out in Ru le 31 (2)(a). Such default judgment being
granted based on a defendant's default to deliver a notice of intention to defend
or of a plea.
[19] R ule 31 (2)(b) is thus not the correct basis upon wh ich the applicant could base
this application for rescission of judgment.
2 My emphas is.
6
[20] Un iform Ru le 42 also makes provision for rescission of judgements. It provides
as follow s:
"(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-
(a) an order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b) an order or judgment in which there is an ambiguity, or a patent error or
omission, but only to the extent of such ambiguity, error or omission;
(c) an order or judgment granted as the result of a mistake common to the
parties."
[21] This rule makes provision for cases in w hich the judgment w as granted, w as
sought or granted erroneously and is not applicable to the facts in this
application. The applicant can therefore also not rely on this to obtain the
rescission of the judgment against it.
[22] Lastly, an application for rescission may be brought in terms of the common law .
The common law provides that a judgement debtor aggrieved by an order or
judgement granted in his / her absence must bring the application for rescission
w ithin a reasonable time, and he / she m ust show good cause by giving a
reasonable explanation for the delay and show ing that application for rescission
w as bona fide and show ing a bona fide defence to the claim w ith prima facie
prospect of success.3
3 Ratshitanga and another v Madima N.O and others (35748/2018)[2023] JHC 76 at 46.
7
[23] In Chetty v. Law Society, Transvaal4 the Court held as follows:
"But it is clear that in principal and in the long-standing practice of our Court two
essential elements of "sufficient cause" for rescission of a judgment by default
are:
(i) that the party seeking relief must present a reasonable and acceptable
explanation for his default; and
(ii) that on the merits such party has a bona tide defence which, prima facie,
carries some prospect of success ....
It is not sufficient if only one of these two requirements is met; for obvious
reasons a party showing no prospect of success on the merits will fail in an
application for rescission of a default judgment against him, no matter how
reasonable and convincing the explanation of his default. And ordered judicial
process would be negated if, on the other hand, a party who could offer no
explanation of his default other than his disdain of the Rules was nevertheless
permitted to have a judgment against him."
[24] It is therefore necessary for the applicant to adduce evidence satisfying the two
requirements as prescribed by the Court.
[25] The applicant explained the events that led up to the judgments to this Court, but
does not provide this Court w ith an explanation why the legal practitioner did not
attend the Court for hearing on both the 5th - and the 6th day of February 2024.
[26] The state attorney was properly served with the notice of setdown for the hearing
of the 5th of February 2024 and was definitely informed of the time at which the
hearing wou ld commence , yet the representative of the applicant chose not to
arrive on time to be in attendance.
4 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 765 at A - E .
8
[27] It is also common cause that the respondent properly informed the state attorney
of the judgement w hich w as granted on the 5th day of February 2024 and served
the order w ith the date and time of the next set dow n, being 6 February 2024 at
9am . The respondent also informed the applicant's legal representative of this
by w ay of an ema il as w ell as during a telephone conversation on the 5th day of
February 2024.
[28] Yet on the 6th day of February 2024 the applicant's legal representative once
again did not attend Co urt on time for the commencemen t of the scheduled
hearing. The applicant's legal representative does not provide an explanation for
his failure to attend Co urt as per the order w hich w as served upon him.
[29] The applicant has not provided a reasonable explanation for his default and
w hen this Court considers the facts before it, it seems as if the only explanation
for the applicant's default is its disdain for the Rules of Court and disrespect for
the authority of the Court.
[30] In respect of the second requirement, the applicant had to adduce evidence that
it had a bona tide defence, w hich has a prima facie prospect of success.
[31] The applicant argued that the contract between the parties, and upon w hich the
respondents claim relies, has ended by effluxion of time. How ever, the
respondent show ed to this Court that the action w as based on a different contract
- there is a difference in the contract numbers w hich the parties referred to.
[32] Despite this, the applicant's plea contains a bare denial and the applicant has
not offered any defence to the claim against it in the ma in case.
9
[33] The applicant admitted during argument that the plea contained a bare denial
but argued that a bare denial should not preclude the applicant from being
granted a rescission of judgment.
[34] This Co urt does not agree w ith the argument of the applicant. The applicant is
required to take the Court into its confidence, convincing the Court that it does
have a bona fide defence to the claim against it.
[35] The applicant has failed to convince this Court that it has a bona fide defence to
the action against it. In addition thereto it has also not provided this Court w ith
any explanation for its default.
[36] On this basis, the Co urt finds that the applicant has failed to meet the
requirements as set out for the rescission of the judgements against it, therefore
the applicant is not entitled to the relief claimed.
[37] The default practice in aw arding costs is that costs ordinarily follow the result,
but that the issue of costs is in the discretion of the court.5 This Court finds no
reason for the costs to be aw arded otherwise.
Order:
[38] In the result the following order is m ade:
1. The application is dismissed w ith costs.
5 Pu blic Protector v South African Reserve Bank 2019 (6) SA 253 (CC ) at (224], (227] and (228];
Limpopo Legal So lutions v Eskom Ho ldings (Soc ) Limited 2017 (12) BC LR 1497 (C C) at (20] ("Eskom ").
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
FOR THE RESPONDENT
INSTRUCTED BY
DATE OF HEARING
DATE OF JUDGMENT
10
S DU PLESSIS
ACTING JUDGE OF THE HIGH COURT ,
LIMPOPO DIVISION, POLOKWANE
Adv. Mothibi
State Attorneys
tmasete@justice.gov.za
Adv. Riley
Maselesele Inc
info@maseleseleinc.co.za
02 April 2025
20 October 2025