SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2022-053070
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 20/11/2025
SIGNATURE:
In the matter between:
FERDINAND DIPPENAAR Applicant
And
ZTE CORPORATION SOUTH AFRICA (PTY) LTD Respondent
In Re:
ZTE CORPORATION SOUTH AFRICA (PTY) LTD Plaintiff
And
BROAD SPECTRUM MINING (PTY) LTD First Defendant
FERDINAND DIPPENAAR Second Defendant
FIRSTRAND BANK LTD Third Defendant
T/A FIRST NATIONAL BANK
JUDGMENT
TD SENEKE, AJ
INTRODUCTION
1. The applicant brought an application to seek the following orders:
“1. That the default judgment granted against the applicant on 30 July 2 024
under the above Case Number 2022 -053070 in favour of the respondent be
and is hereby set aside.
2. That the applicant be given leave to file and serve a notice of intention to
defend the main action within ten (10) days from date of the order referred to
in paragraph 1 above.
3. That the respondent be ordered to pay the costs of the application in the
event of same being opposed.”1
ISSUES TO BE DETERMINED
2. Was the service proper? The applicant denies receiving the summons; the
respondent alleges that the summons was served at a place where the defendant
was employed as a director and had an office.2
3. Is there a bona fide defence?
3.1. the respondent’s position is that the applicant is responsible for the
misappropriation of funds belonging to the respondent.
3.2. the applicant states that the money was not paid to him but to a
company he worked for and the money was used to pay third parties for
expenses.3
1 Caseline 009-2 to 009-3
2 Caseline 014-16
3 Caseline 014-16
4. When did BSM first discover that the money paid to it belonged to the
respondent? When did the respondent first discover that the bank account it paid into
belonged to BSM?4
5. Had the alleged claim against the applicant prescribed when summons was
served?5
6. Was the money paid to the applicant? Did the applicant appropriate the
money?6
7. Did BSM trade recklessly and if so did this cause the applicant to be
responsible for the loss suffered by the respondent?7
BACKGROUND
8. The respondent issued summons against the applicant. The particulars of
claim stated:
9. On or about 15 September 2016, the respondent placed a purchase order
with a company known as Radio Network Solutions (Pty) Ltd (RNS) for the supply of
equipment.8 RNS duly accepted the above purchase order from the respondent.
10. On or about 20 September 2018, and pursuant to the above purchase order
the respondent paid the sum of R1 688 686.29 to the bank account listed in the
purchase order held at First National Bank, namely the account held under account
number 6[...], which the respondent believed was the bank account of RNS. This
account shall be referred to herein as the “FNB account”.9
4 Caseline 014-16
5 Caseline 014-16 to 014-17
6 Caseline 014-17
7 Caseline 014-17
8 Caseline 002-6
9 Caseline 002-6
11. Unbeknown to the respondent, the FNB account was no longer held under the
name of RNS, but had been transferred to, and was at that stage held under the
name of Broad Spectrum Mining (Pty) Ltd (BSM).10
12. As a result, the payment made by the respondent that was intended to be
made to RNS instead reached BSM, which was not the intended recipient.11
13. The amount was not owing to BSM, which nevertheless appropriated the
erroneous payment.12
14. In the alternative to the above, the applicant appropriated the erroneous
payment, alternatively caused the erroneous payment to be appropriated.13
15. On or about 15 January 2020, at a meeting held between, among others, the
respondent and BSM, duly represented by its director, Mr Nathan M ohammed, and
its legal representative, Mr Premjith Supersad, admitted that:
15.1. BSM received the payment from the respondent which was intended
for RNS.
15.2. BSM appropriated the sum erroneously received.
15.3. The respondent was entitled to have the i ncorrect payment returned to
it by BSM.
15.4. BSM would refund the full amount to the respondent.14
16. Notwithstanding demand, BSM, alternatively the applicant, has failed to
refund the sum due and payable to the respondent in accordance with the
agreement reached on 15 January 2020 among the parties.15
17. On 13 June 2023, the respondent obtained default judgment against the
applicant.
10 Caseline 002-6
11 Caseline 002-6
12 Caseline 002-6
13 Caseline 002-6
14 Caseline 002-7
15 Caseline 002-7
18. On 10 September 2024, the applicant initiated the current application for
rescission.
CASE FOR THE APPLICANT
The applicant states that:
19. This application for rescission is brought in terms of Rule 42 of the Uniform
Rules alternatively the common law. The criteria are that the applicant shows lack of
wilful default when he failed to defend the summons and that he has a bona fide
defence against the action brought by the respondent, ultimately that the judgment
was erroneously sought or erroneously granted.16
Basis of Rescission
Reasonable explanation for the default
20. During July 2024, the applicant was contacted telephonically by a Captain
Monaiwa of the South African Police Services (SAPS) and informed the applicant
that to gether with his brother Benno Dippenaar were to attend the Sandton police
station as they were required to provide SAPS with information regarding a charge
against them.17
21. On or about 30 July 2024, the applicant together with his brother and attorney
Mr Andre Kruger of Fluxmans Inc (Fluxmans), attended the Sandton police station.18
22. Captain Monaiwa of the SAPS showed the applicant and his brother a copy of
the judgment that was in the docket.19
23. This was the first time that the applicant became aware of the judgment.20
16 Caseline 009-7
17 Caseline 009-7
18 Caseline 009-7
19 Caseline 009-7
24. The applicant immediately requested Fluxmans to obtain a copy of the court
file in respect of the judgment as the applicant did not have any other documentation
with regards to the judgment. Fluxmans despite numerous attempts to communicate
with the respondent’s attorneys of record telephonically were unable to reach them.
Fluxmans was only able to obtain access to the court’s digital platform in which the
judgment was granted on 30 July 2024.21
25. On 16 August 2024, after having obtained copies of all the process which led
to the judgment from the Cas eLines portal for the above matter, the applicant
consulted with his attorney, Mr Alex Peral from Fluxmans (Mr Peral), for purposes of
instructing him to bring this application.22
Service
26. The applicant states that:23
26.1. He has never received a sum mons under the above case number and
only became aware that the judgment was granted on 30 July 2024;
26.2. Based on the purported return of service on the applicant, it seems that
the respondent attempted to serve the summons on the applicant at 4 […] A[...]
Road, Bedfordview c/o Protax Group on 2 December 2022.
26.3. At the time of service, the applicant had no involvement in Protax
Group and it was not the applicant’s place of employment nor was he carrying
on business at that address or as part of Protax Group;
26.4. At that time of the purported service of the summons in the above
matter, the applicant was (and remain until today) a director of Protax
Business Advisory Service (Pty) Ltd, with its trading address being the
applicant’s residential address referred to above.
26.5. Albeit that Protax Business Advisory Service (Pty) Ltd’s registered
address as at 2 December 2022 was 4 [...] A[...] Road, Bedfordview, being the
20 Caseline 009-7
21 Caseline 009-7
22 Caseline 009-7 to 009-8
23 Caseline 009-8 to 009-9
address o f Protax Business Advisory Services (Pty) Ltd’s auditors, the
applicant was never provided with a copy of the summons by the Protax
Group, being Protax Business Advisory Services (Pty) Ltd’s auditors.
26.6. The applicant’s company Protax Business Advisory Service (Pty) Ltd is
a different company and separate legal entity from Protax Group. Protax
Group was Protax Business Advisory Service (Pty) Ltd’s auditors, and the
applicant can only surmise that the respondent perhaps believed that the
Protax Group and Protax Business Advisory Service’s (Pty) Ltd were one and
the same which is incorrect.
26.7. Protax Group had no authority to accept service on the applicant’s
behalf and in any event could not accept service of a summons on his behalf
when he was cited in his personal capacity. Protax Group did not provide the
applicant with a copy of the summons received by it on 2 December 2022, as
it was not obligated to as it was only the auditors of Protax Business Advisory
Service (Pty) Ltd and not an address where s ervice could be effected on his
personal capacity. The applicant was completely unaware of any such
summons against him.
26.8. In the circumstances, the applicant would not have been aware of any
summons being served as alleged in the return of service as the applicant
was not employed by Protax Group and for reasons unbeknown to him,
Protax Group failed to inform him of the summons served on its offices on 2
December 2022.
26.9. In the circumstances the application for default judgment was
erroneously sought and granted as the court was not aware that the address
for service on the applicant was not a valid address.
Bona Fide Defence
27. The applicant is not indebted to the respondent in the amount claimed or at all,
he did not receive the monies erroneously paid by the respondent and the
respondent has no cause of action against the applicant either in delict or in contract.
The applicant was simply a director of Broad Spectrum Mining (Pty) Ltd at the time.24
The applicant was simply a director of Broad Spectrum Mining (Pty) Ltd at the time.24
24 Caseline 009-9
28. In any event, it seems that at the time of the purported service of the
summons on the applicant, which was not valid for the reasons set out above, that
any claim the respondent alleged to have as against him had prescribed.25
29. In this regard, with reference to the respondent’s particulars of claim, on or
about 15 September 2018, the respondent alleges to have made an erroneous
payment of R1,688,686.29 to Broad Spectrum Mi ning (Pty) Ltd (BSM) thinking that it
was paying Radio Network Solutions (Pty) Ltd.26
30. During September 2018, being the month in which the respondent effected
the so called erroneous payment of R1,688,686.28 to BSM, the applicant was a
director of BSM. The applicant, however, resigned as a director and employee of
BSM in September 2019.27
31. The respondent alleges to have had a meeting between itself and BSM on or
about 15 January 2020 (the year after the applicant’s resignation as director).28
32. Based on what is recorded in the minutes of the meeting between the
respondent and BSM, and relied on by the respondent, BSM acknowledged its
liability towards the respondent for the repayment of th e amount of R1,688,686.28.
BSM was, based on the minutes, represented by its director Mr Nathan Mohammed
and its legal representative Advocate Premjith Supersad.29
33. It seems to have been an opportunistic approach adopted by the respondent
as it has no b asis to claim anything from the applicant in his personal capacity. The
respondent did not even cite any of the other directors of BSM and chose to only
target the applicant for unknown reasons.30
25 Caseline 009-9
26 Caseline 009-9
27 Caseline 009-10
28 Caseline 009-10
29 Caseline 009-10
30 Caseline 009-11
34. The respondent clearly attempted to introduce a new, no n-pleaded cause of
action, against the applicant in his personal capacity on the basis that the applicant
purportedly contravened the Companies Act alternatively, he together with BSM
purportedly appropriated the funds. This cannot be further than the trut h. The
respondent’s supplementary affidavit in support of default judgment states that
minutes of a meeting record that the applicant informed the respondent that the
monies were received by BSM and that he had said that he appropriated the
erroneous payment and used it for business expenses. The respondent states that
the meeting minutes are annexed to that supplementary affidavit as AP2. The
meeting minutes show that the meeting was held in January 2020 after the applicant
had resigned and also that he wa s not present at the meeting. The minutes also
record that BSM had thought that the payment was from a shareholder as they were
expecting monies from a shareholder to be invested and that is why they
appropriated t he monies for BSM expenses. Obviously the respondent (plaintiff)
confused the applicant with someone else who was at the meeting.
CASE FOR THE RESPONDENT
35. The respondent respectfully submits that summons were properly served on
the applicant for the purposes of Rule 4 of the Uniform Rules of Court, and that the
applicant was personally aware of the summons filed for the reasons set out below.31
36. On or about 28 November 2022, Mr Dali Ngalo of the respondent’s attorneys
telephoned the offices of Protax Group (Pty) Ltd, and spoke with the applicant’s
secretary, who confirmed that the applicant was employed at 4 […] A[...] Road,
Bedfordview, and indicated that he would be present in his office the following day.32
37. It bears mention that both Protax Business Advisory Service (Pty) Ltd, of
which the applicant is a director, and Protax Group (Pty) Ltd and Protax Business
which the applicant is a director, and Protax Group (Pty) Ltd and Protax Business
Advisory Service (Pty) Ltd, have their registered address situated at 4[…] A[...] Road,
Bedfordview. It may be that, when Mr Ngalo was advised that the applicant was
31 Caseline 010-4
32 Caseline 010-4
employed at that address, reference was made to his employment under Protax
Business Advisory Service and not Protax Group.33
38. Regardless of the name of the applicant’s employer, it would appear that,
insofar as the summons were served on the address at 4 […] A[...] Road,
Bedfordview, they would be served at the place where the applicant was normally
employed and where he held offices. Service would therefore be effective at this
address as per Rule 4(1)(a)(ili) of the Uniform Rules of Court.34
39. Had the sheriff been informed that the applicant no longer worked at 4[…] A[...]
Road, then the sh eriff would not be able to serve the summons in terms of Rule
4(1)(a)(iii) and would not have attempted to do so. The sheriff’s retu rn of service
would then show that service could not be effected at that address.35
40. There is nothing to suggest that the summons did not come to the attention of
the applicant. The respondent respectfully submit that the applicant deliberately
ignored the summons that were received to frustrate the proceedings brought
against him, and that he was in wilful default of the summons.36
41. The high watermark of the applicant’s case is that the applicant allegedly “had
no involvement in Protax Group” and that he was not carrying on business at the
address of 4[…] A[...] Road, Bedfordview.37
42. Given that the applicant is a director of Protax Business Advisory Services, he
may be said to be an employee of that company. Service on the registered address
of that company should ordinarily come to his attention.38
No Bona Fide Defence
33 Caseline 010-4 to 010-5
34 Caseline 010-5
35 Caseline 010-6
36 Caseline 010-6
37 Caseline 010-7
38 Caseline 010-7
43. The respondent’s claim against the applicant i s set out in paragraph 10 of the
particulars of claim in this matter. It was that the applicant, who was a director of
BSM, had personally appropriated the sum that was errone ously paid by the
respondent into the bank account of BSM.39
44. Over the course of September 2018 to December 2018, a number of
payments were made from BSM’s account to Protax Business Advisory Services, of
which the applicant was a director (and still is a director). This is clear from the bank
statements of BSM. These payments were made as follows:
44.1. 28 September 2018: R150 000.00.
44.2. 30 October 2018: R120 000.00.
44.3. 19 November 2018: R13 330.80.
44.4. 30 November 2018: R137 000.00.
44.5. 20 December 2018: R120 000.00.40
45. A sum of R540 330.80 was therefore paid out of BSM to a company controlled
by the applicant, for no ostensible purpose. Even more importantly, before the
erroneous payment was made by the respondent to BSM, BSM only had
approximately R4 000 in its account. This demonstrates that the monies that were
paid out were monies that belonged to the respondent, and which the respondent
could recover by way of a quasi-vindicatory claim.41
46. At worst for the respondent, the applicant was liable for trading recklessly
under section 22 of th e Companies Act 71 of 2008, or was guilty of breaching his
duties as a director and enriching himself at the expense of the company, under
section 77 of the Companies Act. He is liable under section 424 of the Companies
Act 61 of 1973.42
47. It is evident that the applicant transferred, or caused the transfer of, or
received, directly or indirectly, the funds belonging to the respondent. Because the
39 Caseline 010-8
40 Caseline 010-8 to 010-9
41 Caseline 010-9
42 Caseline 010-9
respondent’s claim is quasi -vindicatory, the claim has not prescribed, and the
respondent had (and still has) a strong claim against the applicant, and the applicant
has no bona fide defence to the claim.43
LEGAL FRAMEWORK
Reasonable explanation for default
48. In Harris v ABSA Bank Ltd Volkskas,44 the court stated that:
“[8] Before an applicant in a rescission of judgment application can be said to
be in “wilful default’’ he or she must bear knowledge of the action brought
against him or her and of the steps required to avoid the default. Such an
applicant must deliberately, being free to do so, fail or omit to take the step
which would avoid the default and must appreciate the legal consequences of
his or her actions.
[9] A decision freely taken to refrain from filing a notice to defend or a plea or
from appearing, ordinarily will weigh heavily against an applicant required to
establish sufficient cause. However, I do not agree that once wilful default is
shown the applicant is barred; that he or she is then never entitled to relief by
way of rescission as he or she has acquiesced. The Court’s discretion in
deciding whether sufficient cause has been establi shed must not be unduly
restricted. In my view, the mental element of the default, whatever description
it bears, should be one of the several elements which the court must weigh in
determining whether sufficient or good cause has been shown to exist. In t he
words of Jones J in De Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance
Co Ltd 1994 (4) SA 705 (E) at 708G,
‘. . . the wilful or negligent or blameless nature of the defendant's default now
becomes one of the various considerations which the court s will take into
account in the exercise of their discretion to determine whether or not good
cause is shown’.”
43 Caseline 010-9
44 2006 (4) SA 527 (T).
49. In casu, the applicant has explained that the summons was served on Protax
Group and not at his residential address as he was being sued in his personal
capacity. Protax Business Advisory Services of which applicant is a director’s
registered address is the same as that of Protax Group who are the auditors of
Protax Business Advisory Services.
50. The applicant is neither an employee of Protax Group nor Protax Advisory
Services. The respondent had a duty to ascertain that service was properly effected
in terms of Rule 4(1)(a)(iii) of the Uniform Rules of Court.
51. It is apparent in this matter that the respondent made assumptions that are
not supported by facts. The respondent assumed that the applicant was the
employee of Protax Business Advisory Services on the basis that he is a director.
The respondent assumed that the person that their attorney, Mr Ngalo spoke to was
the applicant’s secret ary and not his brother’s secretary. That the Dippenaar that
was being referred to was the applicant. These assumptions unfortunately resulted in
defective service. The confirmatory affidavits of Benno Dippenaar, Kristelle van der
Berg and Kerishe Chetty 45 support the version of the applicant that he was not the
employee of Protax Business Advisory Services and that Kristelle van der Berg was
not his secretary but was Benno Dippenaar’s secretary. This is a typical case of
miscommunication and failure to ascertain proper facts.
52. In Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector Including Organs of State
and Others 46 when dealing with the absence of an applicant in rescis sion
applications under Rule 42(1)(a), the Constitutional Court clarified that:
“[56] …However, the words “granted in the absence of any party affected
thereby”, as they exist in rule 42(1)(a), exist to protect litigants whose
presence was precluded, not those whose absence was elected. Those words
presence was precluded, not those whose absence was elected. Those words
do not create a ground of rescission for litigants who, afforded procedurally
regular judicial process, opt to be absent.
45 Caseline 011-65 to 011-67 and 011-76 to 011-77 and 011-69 to 011-70
46 2021 (11) BCLR 1263 (CC) (17 September 2021)
[57] At the outset, when dealing with the “absence ground”, the nuanced but
important distinction between the two requirements of rule 42(1)(a) must be
understood. A party must be absent, and an error must have been committed
by the court. At times the party’s absence may be what leads to the error
being committed. Naturally, this might occur b ecause the absent party will not
be able to provide certain relevant information which would have an essential
bearing on the court’s decision and, without which, a court may reach a
conclusion that it would not have made but for the absence of the informa tion.
This, however, is not to conflate the two grounds which must be understood
as two separate requirements, even though one may giv e rise to the other in
certain circumstances. The case law considered below will demonstrate this
possibility.
…
[60] … Whilst that matter correctly emphasises the importance of a party’s
presence, the extent to which it emphasises actual presence must no t be
mischaracterised. As I see it, the issue of presence or absence has little to do
with actual, or physical, presence and everything to do with ensuring that
proper procedure is followed so that a party can be present, and so that a
party, in the event that they are precluded from participating, physically or
otherwise, may be entitled to rescission in the event that an error is committed.
I accept this. I do not, however, accept that litigants can be allowed to butcher,
of their own will, judicial proce ss which in all other respects has been carried
out with the utmost degree of regularity, only to then, ipso facto (by that same
act), plead the “absent victim”. If everything turned on actual presence, it
would be entirely too easy for litigants to render void every judgment and
order ever to be granted, by merely electing absentia (absence).” (own
emphasis)
53. In this matter, I reach a conclusion that the applicant’s presence was
emphasis)
53. In this matter, I reach a conclusion that the applicant’s presence was
precluded due to defective service that was incorrectly effected on him whi ch did not
conform to the Uniform Rules.
Bona fide defence
54. In the Harris v ABSA Bank,47 Moseneke J stated as follows:
“[10] A steady body of judicial authorities has held that a court seized with an
application for rescission of judgment should not, in determining whether good
or sufficient cause has been proven, look at the adequacy or otherwise of the
explanation of the default or failure in isolation.
“Instead, the explanation, be it good, bad or indifferent, must be considered in
the light of the nature of the defence, which is an important consideration, and
in the light of all the facts and circumstances of the case as a whole”.”
55. The applicant stated that he is not indebted to the respondent in the amount
claimed or at all, he did not receive the monies erroneously paid by the respondent
and the respondent has no cause of action against the applicant either in del ict or in
contract. The applicant was simply a director of Broad Spectrum Mining (Pty) Ltd at
the time.
56. In any event, it seems that at the time of the purported service of the
summons on the applicant, which was not valid for the reasons set out above, that
any claim the respondent alleged to have as against him had prescribed.
57. In this regard, with reference to the respondent’s particulars of claim, on or
about 15 September 2018, the respondent alleges to have made an erroneous
payment of R1,688,686.29 to Broad Spectrum Mining (Pty) Ltd (BSM) thinking that it
was paying Radio Network Solutions (Pty) Ltd.48
58. It seems to have been an opportunistic approach adopted by the respondent
as it has no basis to claim anything from the applicant in his personal capacity. The
respondent did not even cite any of the other directors of BSM and chose to only
target the applicant for unknown reasons.49
Respondent’s dispute of bona fide defence
47 2006 (4) SA 527 (T).
48 Caseline 009-9
49 Caseline 009-11
59. The respondent relies on paragraph 10 of its particulars of claim that the
applicant has misappropriate the funds.
60. The respondent has also sought to introduce a new cause of action in
attempting to hold the applicant liable on the basis of some funds having been
transferred from BSM to Protax Business Advisory Services.
61. In his replying affidavit, the applicant dealt with this issue as follows, at
paragraph 37:
“Again we see the twisting of evidence by plaintiff’s deponent Avinash Pather
when he claims in the answering affidavit to th is application that it “is clear
from the bank statements of BSM” that “a number of payments were made by
from BSM’s bank account to Protax Business Advisory Services” and then he
cites the list of payments being R150 000, R120 000, R13 330, R137 000 and
R120 000 and concludes that “A sum of R540 330.80 was therefore paid out
of BSM to a company controlled by the applicant, for no ostensible purpose”.
This is not true. The bank statements show that the list of payments that
Pather cites were made to “Protax ”, meaning BSM’s accountants Protax
Financial Administrators (Pty) Ltd, a member of the Protax Group and a
company of which I am not and have never been a shareholder, director or
employee of and of which I have never been in control.”50
62. The respondent has also sought to introduce a new cause of action relating to
reckless conduct in the part of the applicant in terms of section 22 of the Companies
Act 71 of 2008.
63. The version of the respondent falls within the realm of speculation which lacks
factual basis. The respondent did not bother to verify the details of the account to
which the amounts were transferred from BSM to Protax Financial Administrator (Pty)
Ltd, a member of the Protax Group of which the applicant is not a director or has no
50 Caseline 011-11
interest therein. This speculation is contrary to the version of the applicant that the
funds were used for payroll and not for the benefit of the applicant. There are no
facts to support the speculative assertion that the applicant appropriated the funds.
64. The respondent has sought to rely on actio rei vindicatio to counter the
defence of prescription which has been raised by the applicant.
65. The cases such as Roestof v Cliffe Dekker Hofmeyer Inc51 have dealt with this
aspect decisively. There is no cl aim for actio rei vindicatio in respect of money. The
court held the following:
“Money paid into a bank account becomes the property of the bank. The
account holder usually becomes the creditor of the bank for the amount so
deposited into his account. Stolen money that is paid into the bank account of
a bona fide third party and which has become mixed with the money of the
third party cannot be claimed from the third party using the rei vindicatio.
Where the money is held in a dedicate d fund and is still identifiable as the
money that was deposited into the account, the original owner can obtain an
interdict to prevent the account holder from using the money until it can be
established who is entitled to it.”52
66. In the matter of Keet53 and Smit,54 both of which are Supreme Court of Appeal
cases, actio rei vindicatio has been invoked in the instance of claiming a moveable
like a motor vehicle or a tractor.
67. In the matter of Keet,55 the SCA held that:
51 (34306/2010) [2010] ZAGPPHC 219; 2013 (1) SA 12 (GNP) (15 December 2011)
52 English translation of the judgment which is in Afrikaans. The Law Reports: January 2013 (1) The
South African Law Reports (pp 1 – 322); [2012] 4 The All South African Law Reports December no 1
(pp 485 – 605) and no 2 (pp 607 – 689) Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of
law at Unisa.
53 Absa Bank Limited v Keet (817/2013) [2015] ZASCA 81; 2015 (4) SA 474 (SCA); [2015] 4 All SA 1
(SCA) (28 May 2015)
(SCA) (28 May 2015)
54 Ronel Noleen Smit v Calvin Kleinhans (case no 917/2020) [2021] ZASCA 147 (18 October 2021)
55 Absa Bank Limited v Keet (817/2013) [2015] ZASCA 81; 2015 (4) SA 474 (SCA); [2015] 4 All SA 1
(SCA) (28 May 2015)
“[20] In my view, there is meri t in the argument that a vindicatory claim,
because it is a claim based on ownership of a thing, cannot be described as a
debt as envisaged by the Prescription Act. The high court in Staegemann
(para 16) was correct to say that the solution to the problem of the
prescription is to be found in the basic distinction in our law between a real
right (jus in re) and a personal right (jus in personam). Real rights are
primarily concerned with the relationship between a person and a thing and
personal rights are c oncerned with a relationship between two persons. The
person who is entitled to a real right over a thing can, by way of vindicatory
action, claim that thing from any individual who interferes with his right. Such
a right is the right of ownership. If, how ever, the right is not an absolute, but a
relative right to a thing, so that it can only be enforced against a determined
individual or a class of individuals, then it is a personal right.”
68. In the matter of Smit,56 the SCA held that:
“[8] The objective of the rei vindicatio is to restore physical control of the
property to the owner, with ownership forming the basis for such a claim.
Three requirements must be met for the rei vindicatio to be successfully
invoked In this case it is common cause that the vehicle existed and that it
was in the possession of Mr Kleinhans, thus leaving Ms Smit to prove
ownership. In addition, it is incumbent upon her to prove that Mr Kleinhans’
right to be in possession of the vehicle was lawfully terminated.”
69. In the case in casu, I have no hesitation in coming to the conclusion that the
applicant has raised bona fide defence.
CONCLUSION
70. I make a finding that the applicant has made a case for rescission in terms of
Rule 42(1)(a) and accordingly, the ord er of 13 June 2023 is rescinded and the
applicant is afforded an opportunity to defend the summons.
56 Ronel Noleen Smit v Calvin Kleinhans (case no 917/2020) [2021] ZASCA 147 (18 October 2021)
The order:
I make the order in terms of the draft order which is uploaded on Caseline 013-4.
TD SENEKE AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
Appearances
For applicant : Advocate Rosalind Stevenson
Instructed by : Fluxmans Inc
For respondent: Advocate O Ben-Zeev
Instructed by : Teng (Hung-Han) Inc T/A Simplex Law