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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 6406/2024
In the matter between
THE STANDARD BANK OF SOUTH AFRICA LIMITED APPLICANT
(Registration Number: 1962/000738/06)
and
THABO JOHANNES MALEFANE RESPONDENT
(Identity Number: 6[...])
Neutral citation: The Standard Bank of South Africa Ltd v Thabo Johannes
Malefane (6406/2024) [2025] ZAFSHC 322 (16 October 2025)
Coram: MHLAMBI J
Heard: 28 August 2025
Delivered: 16 October 2025
Summary: Application for rescission of default j udgment – Uniform
Rules of Court – rules 31(2)(b) and 42(1)(a) – common law – debt review in
terms of the National Credit Act 34 of 2005 – requirements – personal service of
summons – failure to establish good cause.
ORDER
The application is dismissed with costs.
JUDGMENT
MHLAMBI, J
[1] This is an application to rescind a default judgment issued by this Court on 27
December 2024. The applicant stated in the founding affidavit under the heading
'Good Cause' that the judgment was issued in error. One of the grounds cited is that
he did not receive the summons and, therefore, was not in willful default for failing to
file a notice to defend. He had approached a debt counselor under s 86 of the National
Credit Act 34 of 200 5 (the NCA), and the debt review process was unlawfully
terminated. He never received the termination notice outlined in s 86(10) from the
plaintiff, which could have led to the reinstatement of that review under s 86(11). He
continues to pay the disputed account under the debt review program, even after the
judgment was granted.
[2] The respondent opposed the application, stating that the applicant’s last
payment toward settling the outstanding debt was made on 11 April 2025. The
applicant referred the credit agreement to a debt collector for review, a process that
was terminated by the respondent under the provisions of s 86(10) of the NCA. On 12
September 2024, the respondent issued a notice under s 86(10) to the applicant,
informing him of the upcoming termination of the debt review process. The notice was
sent to the appl icant’s chosen mailing address via prepaid registered mail on 12
September 2024, and an email was also sent to the debt counselor and the National
Credit Regulator on the same date . Despite the default notice, the applicant failed to
remedy the breach of the agreement. The respondent was entitled to cancel the
agreement as it did.
[3] The respondent further stated that the application for rescission was filed under
rule 31(2)(b) of the Uniform Rules of Court, and challenged the claim that the
judgment was granted in error because the applicant did not receive the summons.
The applicant failed to demonstrate a basis for the relief requested in the rescission
application because he was personally served with the combined summons by the
sheriff on 14 November 2024. The return of service explicitly noted that the summons,
particulars of claim, and annexures were personally served on the defendant , with
their nature and urgency explained . The applicant's sworn statement that he did not
receive the summ ons was a misrepresentation, and his failure to appear to defend
was intentional.
[4] Furthermore, the applicant failed to specify the date he became aware of the
default judgment, and the application, on its face, was filed outside the prescribed time
limits of the Uniform rules. The current application included no request for condonation
for its late service, making it defective.
[5] In his replying affidavit, the applicant stated that he became aware of this
default judgment when he referred the disput e to the mediator, as per the mediatio n
notice he attached as JD2. This notice of mediation for the applicant, dated 24
January 2024, was issued before the judgment was granted on 27 December 2024.
[6] He stated further that
‘[M]y default stems from the fact that I was not aware of the action against me as I did not
receive the summons, even from the person who the R espondent alleges that the summons
were left with of which by that time the summons were issued , I have already referred the
matter to be resolved through the mediation process. I have appointed a neutral person, the
matter to be resolved through the mediation process. I have appointed a neutral person, the
mediator to assist on this confusion as I am of the view that I am currently under debt review
and the Respondent is still receiving monthly payments via debt review program.’
The distribution statement indicated that payments were made up to 13 May 2025. He
only became aware of the s 86(10) notice when the mediator directed him to get a
copy of the summons from the court file.
[7] It is unclear why and when a copy of the summo ns was requested or what
happened afterward. What is clear is that the mediator knew a summons had, at
minimum, been issued. It is uncontested that the s 86(10) notices were sent out, as
the respondent argues.
[8] Uniform rule 42(1) provides that a court may, 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.’
[9] Uniform rule 31(2)(b) states that a defendant may, within 20 days of learning
about such judgment, request the court upon notice to the plaintiff to set aside a
default judgment by giving notice to the plaintiff. The court may, for good cause, set
aside the default judgment on terms it considers appropriate.
[10] I was referred to the decision in Lodhi 2 Properties Investments CC v Bondev
Developments (Pty) Ltd ,1 where it was held that a judgment to which a plaintiff is
procedurally entitled in the absence of the defendant cannot be considered 'granted
erroneously' merely because a subsequently disclosed defence exists. The presence
or absence of a defence on the merits is irrelevant, and if disclosed later, it cannot turn
a valid judgment into an erroneous one.
[11] In Chetty v Law Society, Transvaal,2 the court stated that in terms of the
common law, it has the power to rescind a judgment obtained on d efault of
appearance, provided sufficient cause therefor has been shown. Sufficient cause
entails two essential elements, which are: (1) that the party seeking relief must present
a reasonable and acceptable explanation for his default, and (2) that on the merits,
a reasonable and acceptable explanation for his default, and (2) that on the merits,
such party has a bona fide defence which, prima facie , carries some prospect of
1 Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd [2007] ZASCA 85; [2007] SCA
85 (RSA); 2007 (6) SA 87 (SCA) para 27.
2 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764J.
success. It is not sufficient if only one of these 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 granted against him, no matter how
reasonable and convincing the explanation of his default.
[12] Proper and personal service was effected on the applicant and he failed to
enter an appearance to defend. He has failed to show that he is entitled to rescind the
default judgment either in terms of the Uniform rules or the common law.
Consequently, his application stands to fail and he should be liable for the costs,
including the costs of counsel.
[13] Therefore, I make the following order:
The application is dismissed with costs.
_________________________
J J MHLAMBI
JUDGE OF THE HIGH COURT
Appearances
For the appellant: TJ Malefane
Instructed by: In Person
For the respondent: NA Feza
Instructed by: Noordmans Attorneys