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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case no. 52097/2019
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 17 NOVEMBER 2025
SIGNATURE:
In the matter between:
VOLKMAR PETER FURWEGER 1st Applicant
(Identity no. 6[...])
KIM MICHELLE FURWEGER 2nd Applicant
(Identity no. 6[...])
and
STANDARD BANK OF SOUTH AFRICA Respondent
(Registration no: 1962/000738/06)
JUDGMENT
The judgment and order are published and distributed electronically.
PA VAN NIEKERK, AJ
INTRODUCTION:
[1] Applicants, who are married to each in community of property, apply for the
rescission of a default judgment granted against them in favour of the Re spondent.
Respondent is a Commercial Bank duly registered in terms of the Laws of the
Republic of South Africa. Respondent instituted action against Applicants claiming
that instalments in respect of a home -loan agreement are in arrears, and claimed
payment of the outstanding amount in terms of such agreement as well as an order
that the property forming the subject of the agreement be declared executable.
[2] In the Notice of Motion the Applicants seek an order in the following terms:
"1. Granting the Applicants condonation for the late filing of the application
for rescission of judgment; (sic)
2. Ordering a stay of the warrant of execution;
3. An order in terms of which the default judgment as granted against the
Applicants be rescinded;
4. That the Respondent be ordered to pay the costs of this application, in
the event that the application is opposed;"
[3] The default judgment referred to i n the Notice of Motion was granted on 22
March 2024 by Mooki J. In that default judgment, an order was granted in favour of
Respondent in its capacity as Plaintiff against the Applicants in their respective
capacities as First - and Second Defendants for payment of the amount of R1 849
871.97 with interest at the rate of 10.25% per annum from 6 June 2019 to date of
payment, both dates inclusive. It was further ordered that a certain immovable
property as fully and properly described in the default judgmen t order, situate at
Witkoppen, Gauteng, be declared executable for the aforesaid amount and that the
Registrar be authorised to issue a writ of execution in terms of Rule 46 as read with
Rule 46A for the attachment of the property with a reserve price set at R1 890
000.00. In terms of the default judgment order, the operation of the order was
suspended for a period of six months.
[4] Default judgment was granted after the action as set out above was instituted
and Applicants then caused a Notice of Intentio n to Defend to be served on the 13th
of November 2019, but thereafter failed to serve a plea. On 5 June 2020 the
Respondent's attorney of record (Plaintiff in the default judgment application) caused
a Notice of Bar to be delivered on Applicants' attorneys of record directing that a plea
had to be delivered within 5 days from service of the Notice of Bar failing which the
Applicants would be in default of such pleading and would be ipso facto barred.
[5] No plea was subsequently filed by Applicants whereaft er Respondent applied
for default judgment in terms of Rule 31(2)(a) and Rule 46A, which application for
default judgment was issued from this court on 12 November 2019 and served on
Applicants. The notice of set -down of the default judgment application wa s similarly
served on the Applicants whereafter the Applicants' attorney of record withdrew on
27 February 2024. The notice of set -down of the default judgment application was
then electronically served on the Applicants on 27 February 2024. As will be ref erred
to hereunder, it is common cause that the Applicants personally attended court when
the default judgment order was granted and was present in court at the time when
the default judgment order was granted.
APPLICANTS GROUNDS FOR RESCISSION:
[6] In the Founding Affidavit the Applicants allege that they fell into arrears on the
payments due in terms of the home-loan agreement when the Second Applicant "lost
her job". In the Opposing Affidavit it is illustrated that the Applicants fell in arrears
during 2019 and that Respondent dispatched default notices in terms of Section 129
of the National Credit Act 34 of 2005 around the 4 th of June 2019. Since that date,
Applicants failed to effect any payments in terms of the Home Loan Agreement upon
which the Respondent's cause of action was found in the action which resulted in the
default judgment.
default judgment.
[7] Applicants further allege in the founding affidavit that they were present in
court on 22 March 2024 but did not hear the judgment given by the court, and that
the Respondent's Advocate then explained to them after the hearing that the order
was suspended for a period of six months. It is then alleged that, being a lay person,
the First Applicant was under the impression that the judgment was postponed for a
period of six months. Applicants further explain that, during July 2024, the First
Applicant sought legal advice and was advised to obtain the court order to establish
"... exactly what the order was that was given by the court ". First Applicant then
avers that he accessed the (court online) profile on 16 July 2024 and noted what the
exact terms of order was.
[8] The application for rescission of the default judgment was thereafter launched
on 13 August 2024, which therefore implies that the Applicants, on thei r version,
became aware of the contents of the default judgment order four months after the
order was granted, and then one month later, launched the application for rescission
of the default judgment order.
[9] Applicants further aver that they have a bona fide defence to the default
judgment order and the totality of the averments to support the averment of a bona
fide defence are set out by First Applicant in paragraph 8 of the Founding Affidavit
which reads:
"8.
BONA FIDE DEFENCE:
8.1 I do admit th at I am in arrears with my bond payments but it is my
humble submission that I wrote several letters to the Respondent's attorneys
indicating to them that the interest was incorrectly calculated on my arrears;
8.2 It is a well -established principle (in dup lum rule) in our law that the
interest cannot surpass the arrears. In this case it has. It is my submission
now and I address it (sic) on several occasions to the Respondent's legal
representatives that the interest was calculated incorrectly"
[10] Under t he heading of " Stay of Execution " Applicants aver that it is in the
interest of justice and that it would be fair to both parties that the Warrant of
Execution be stayed "indefinably” which presumably should be read as " indefinitely".
It is further submitt ed by Applicants that the stay of the Warrant of Execution should
It is further submitt ed by Applicants that the stay of the Warrant of Execution should
endure at least until "... the correct amount of interest was calculated”.
[11] Under the heading " Condonation" it is curtly alleged that the Applicant, as a
layman, did not fully comprehend the terms of the order until his legal advisor
explained same to him when he gained access to the Case Lines profile. Applicant
then proceeds to submit the following in paragraph 11.3 of the Founding Affidavit:
"I further submit that I was not in wilful default of this order as no one made
me aware of the order nor was this order ever served upon me by the
Respondent's attorney of record'.
APPLICABLE LEGAL PRINCIPLES:
[12] In the Heads of Argument filed on behal f of Applicants it was submitted that
the application is brought under the provisions of Rule 42(1) as well as the common
law.
[13] In terms of Rule 42(1) the court may 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 to such an ambiguity, error or omission, or (c) an
order or judgment granted as a result of a mistake common to the parties. In my view
the provisions of Rule 42(1) do not assist the Applicants, for the following reasons:
[13.1] The order for summary judgment was not erroneously sought or
granted in the absence of any party affected thereto. The order was granted in
terms of the provisions of Rule 31(2)(a) after the Applicants failed to serve a
plea, was barred by way of a notice and became ipso facto barred having
failed to comply with the Notice of Bar. These notices were duly served on the
Applicants, and so was the application for default judgment. In the application
for default judgment notice was duly given that Respondent will apply for
default judgment for payment of the amount of R1 849 871.90 with interest,
which is the same amount as ordered in th e judgment. Respondent thus
followed due process in terms of the rules to obtain the judgment.
followed due process in terms of the rules to obtain the judgment.
[13.2] The application for default judgment was supported by an affidavit
deposed to by a functionary of the Respondent and the amount of R1 849
871.90 was prove n by way of a certificate and affidavit, in terms of the
provisions of the underlying loan agreement as comprehensively set out in the
application for default judgment.
[14] At all relevant times the Applicants were aware of the amount, and the
computation thereof, that would be claimed during the proceedings to obtain default
judgment as the application for default judgment was served on them, and they took
no steps to oppose that application.
[15] There is further no ambiguity or patent error or omissi on in the default
judgment order as a result of which neither Rule 42(1)(b) nor Rule 42(1)(c) assist the
Applicants.
[16] It then remains to consider whether the Applicants have shown sufficient
cause for a rescission order to be granted in terms of the co mmon law. In Van
Heerden v Bronkhorst1 it was held as follows:
"[19] That brings to the relief under the common law. An applicant for
rescission of judgment taken by default against him is required to show good
cause. [18] Whilst the courts have consistently refrained from circumscribing a
precise meaning of the term 'good cause', [19] generally courts expect an
applicant to show 'good cause' (a) by giving a reasonable explanation of his
default; (b) by showing that his application is bona fide; (c) by show ing that he
has a bona fide defence to the plaintiff's claim which, prima facie, has some
prospect of success".
[17] The aforesaid principles under which a court will rescind an order on good
cause shown is a restatement of various judgments which consiste ntly held that the
applicant has to show the following:
[17.1] a reasonable explanation for the default;
[17.2] that the application is bona fide;
1 (Case no. 846/19) [2020] ZASCA 147 (13 November 2020)
[17.3] a bona fide defence.
[18] In my view t he Applicants failed to satisfy the common law requirements for
the rescission of the default judgment granted against them, for the following
reasons:
[18.1] Applicants failed to show good cause for their default. The founding
affidavit does not disclose certain material facts, namely that Applicants were
initially represented by attorneys, failed to file a plea, was placed under bar
and that the application for default judgment was served on them. These facts
are disclosed by Respondent in the opposing af fidavit. No explanation for
these omissions are offered by Applicants. Furthermore, there is a complete
lacuna in the Applicants' Founding Affidavit in relation to the time when they
attended court on 22 March 2025 when the default judgment order was
granted, until approximately four months later when they enquired as to the
contents of the order. The Founding Affidavit is further silent as to the reason
why the Applicants sought further legal advice during July 2025, having
attended court some four months earlier after being served the application for
default judgment. The absence of a proper explanation for this time delay and
the vague reference to the Applicants obtaining legal advice on the contents
of the order clearly does not satisfy the requirement of a reasonable
explanation.
[18.2] Applicants further dismally failed to provide any factual basis which
exhibits a bona fide defence. The mere reference to an alleged miscalculation
of interest is a bold averment not substantiated by any facts. The same
applies to the reference to the " in duplum rule ". The Founding Affidavit in
support of the application for default judgment contained particulars on the
computation of the amount of R1 849 871.90 claimed in the application for
default judgment, and the Applicants therefore could have raised any such
defences to the computation of that amount which may have exhi bited a bona
defences to the computation of that amount which may have exhi bited a bona
fide defence at that time. It is a trite princincle that facta probanda in motion
proceedings must be supported by facta probantia.
CONCLUSION:
[19] Considering the aforesaid, the application for rescission stands to be
dismissed. It therefor e follows that the application for the stay of execution should
similarly be dismissed as a result of which the following order is made:
1. The application is dismissed;
2. Applicants are ordered to pay the costs to be taxed on scale B.
PA VAN NIEKERK AJ
Acting Judge of the High Court
Gauteng Division, Pretoria