THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 507/2024
In the matter between:
DEON SMITH FIRST APPLICANT
ELLEN LOUISE SMITH SECOND APPLICANT
NADELEI CC THIRD APPLICANT
and
SASFIN BANK LTD FIRST RESPONDENT
SUNLYN (PTY) LTD SECOND RESPONDENT
Neutral citation: Deon Smith and Others v Sasfin Bank and Another (Case no
507/2024) [2025] ZASCA 198 (19 December 2025)
Coram: MEYER, MA TOJANE and MOLEFE JJA and CLOETE and
NUKU AJJA
Heard: 06 November 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
2
website and released to SAFL II. The date and time for hand -down of the
judgment is deemed to be 19 December 2025 at 11h00.
Summary: Section 17(2)(f) of the Superior Courts Act 10 of 2013 –
reconsideration application – Uniform Rules of Court – refusal of application for
rescission of two default judgments granted by the registrar- whether applicants
met threshold requirement – whether requirements for rescission met.
ORDER
__ ___
On appeal from: Gauteng Division of the High Court, Pretoria (Mooki AJ
sitting as court of first instance):
The reconsideration application in terms of section 17(2)(f) of the Superior
Courts Act 10 of 2013 is struck from the roll with costs.
JUDGMENT
__ ___
Cloete AJA (Meyer, Matojane and Molefe JJA and Nuku AJA concurring):
Introduction
[1] This is an application in terms of s 17(2)(f) of the Superior Courts Act1 for
reconsideration of an order by two Judges of this Court . They refused a petition
in terms of s 17(2)(b) of the Act for leave to appeal against an order of the Gauteng
Division of the High Court, Pretoria (the high court), which dismissed an
application for rescission of two default judgments granted against the applicants.
[2] The registrar of the high court granted the default judgments in favour of
the first respondent (Sasfin) in terms of rule 31(5) of the Uniform Rules of Court
1 No 10 of 2013.
3
(the rules), for payment of R515 623.78 , interest thereon at 11% per annum
calculated from 1 Apri l 2020, and costs on the scale as between attorney and
client. The first default judgment was granted on 30 July 2021 jointly against the
first and third applicants, Mr Smith and Nadelei CC (the CC), respectively. The
second was granted on 5 August 2021 against the second applicant (Mrs Smith)
jointly and severally together with Mr Smith and the CC. Unless otherwise
indicated, I refer to them collectively as the ‘applicants’.
[3] The applicants applied for leave to appeal against the high court’s order,
which application was dismissed. As already indicated, two Judges of this Court
refused their subsequent petition in terms of s 17(2)(b) of the Superior Courts
Act. Their application in terms of s 17(2)(f) of the Act was thereafter granted by
the President of this Court . The parties were also directed to address the merits
at the hearing if so required.
Threshold requirement for reconsideration in terms of s 17(2)(f)
[4] Section 17(2)(f) was amended with effect from 3 April 2024 2. It provides
inter alia that on application to her, the President of the Supreme Court of Appeal
may refer a decision on petition back to t his Court for reconsideration and, if
necessary, variation, in circumstances where she is of the view that a grave failure
of justice would otherwise result, or the administration of justice may be brought
into disrepute (these are refer red to as ‘exceptional circumstances ’). It bears
mention that the President is constrained to reach that view on the limited
information and submissions placed before her in chambers.
[5] The applicants are required to demonstrate to the reconsideration Court that
at least one of these exceptional circumstances is present. Their existence is a
jurisdictional fact. If either is not established, that puts an end to the matter, and
jurisdictional fact. If either is not established, that puts an end to the matter, and
2 The subsection was amended by s 28 of the Judicial Matters Amendment Act 15 of 2023.
4
we need not consider whether the refusal to grant leave on petition was correctly
decided, much less whether the judgment and order of the [high court] are
correct.’3 Put differently, s 17(2)(f) ‘is not a mechanism for a disappointed
litigant to secure another opportunity fo r appeal but rather a safeguard to avoid
manifest injustice.’4 Recently, in Godloza and Another v S 5 , the Constitutional
Court emphasised that merely because separate judicial officers in one Division
or Court arrive at different conclusions on the same, or substantially similar, facts,
this does not, without more, meet the exceptional circumstances threshold.
Grounds advanced by applicants to meet the exceptional circumstances
threshold requirement
[6] The applicants maintain that the exceptional circumstances present are as
follows. First, they assert that there were two conflicting outcomes, one being
their rescission application (which was dismissed) and the other ‘in a similar and
closely related matter ’ in the same division of the high court, where rescission
was granted. However, they failed to place any facts before this Court (or indeed
the high court) in relation to that other matter , and thus no more need be said
about this
[7] Second, they attack the high court judgment on the following grounds ,
namely that: (a) the test for rescission was incorrectly applied, resulting in ‘undue
hardship’ to them ; (b) the defence raised by them of a simulated transaction met
the established ‘bona fide’ test; (c) despite their rescission application not having
been ‘pinned’ to any of the recognised grounds (namely rule 31(2)(b), rule 42 or
the common law), the high court should nevertheless ‘have considered the facts
presented in the affidavits and measured the application ’ on each of th ose
3 Bidvest Protea Coin Security (Pty) Ltd v Mandla Wellem Mabena 2025 (3) SA 362 (SCA) paras 9 and 15-17.
4 Road Accident Fund v Sarah Wilson Lewis [2025] ZASCA 174 (18 November 2025) para 25, referring to Anvit
v First Rand Bank Ltd [2014] ZASCA 132 (23 September 2014).
5 Godloza and Another [2025] ZACC 24 (5 November 2025) paras 46 – 52.
5
grounds; and (d) contrary to the conclusion of the high court, they had not been
in wilful default of entry of appearance to defend.
Background
[8] On 18 November 2019 the CC, duly represented by Mr Smith, concluded
a written Master Agreement of Hire (master rental agreement ) with Technofin
(Pty) Ltd (Technofin) . Ex facie that agreement, Technofin rented certain
equipment to the CC for a n initial period of 60 months commencing on 18
November 2019, at a monthly rental of R9 829.05 inclusive of VAT. In terms of
clause 2.2 of the master rental agreement , it was acknowledged and agreed that
at all times the equipment would rem ain Technofin’s property. Clause 15
provided that Technofin was entitled, without notice, to cede any of its rights in
terms of the master rental agreement to a third party. Technofin ceded its rights
to the second respondent, Sunlyn (Pty) Ltd (Sunlyn), which in turn ceded them to
Sasfin.
[9] Clause 21 of the master rental agreem ent is the ‘sole memorial’ clause,
namely that no amendments thereto would be binding unless recorded in writing
and signed by the parties. It is not suggested by the applicants that any such
amendments were effected. At the time of conclusion of the master rental
agreement, Mr and Mrs Smith executed written deeds of suretyship (referred to
as guarantees) in terms of which they bound themselves as sureties and co -
principal debtors, jointly and severally with the CC , in favour of Technofin or
any third party as cessionary for all amounts owing under the master rental
agreement.
[10] Consequent upon the CC’s breach of its payment obligations under the
master rental agreement, Sasfin issued summons against the CC, alternatively
against the applicants jointly and severally, for payment of the capital sum due,
6
as well as interest and costs on the scale as between attorney and client , as
provided therein. After service of the summons and upon expiry of the dies
induciae Sasfin applied for, and was granted, default judgment.
[11] At all material times Mr and Mrs Smith were married to each other and
were co-members of the CC. Their application for rescission was launched on 21
April 2022, thus about 9 months after the default judgments were granted. Mr
Smith deposed to the founding affidavit in both his personal capacity and on
behalf of the other applicants, and Mrs Smith deposed to a confirmatory affidavit.
According to them they were not in wilful default of entry of appearance to
defend, since the first occasion on which they became aware of the default
judgments was when Mrs Smith attended at the office of their erstwhile attorney
on 22 March 2022 for an unrelated matter and was informed thereof ‘in passing’.
The unidentified individual who allegedly conveyed this information to her did
not depose to a confirmatory affidavit.
[12] It is common cause that service of the summons was effected by the sheriff
on 3 June 2021 at the residential address of Mr and Mrs Smith by affixing a copy
to the principal gate, and on a consultant of the CC, a Ms Weppelman, at its
principal place of business. The applicants accept that this was effec tive service
as contemplated by the rules. Their complaint however is that prior to 22 March
2022, the summons did not come to their attention, and despite the sheriff’s return
of service reflecting that its contents were explained to Ms Weppelman, she could
not recall having received it , although she might have followed their ‘standard
operating procedures’ by opening a file and forwarding the summons to their
erstwhile attorney.
[13] In her confirmatory affidavit, Ms Weppelman merely alleged that she had
read the founding affidavit of Mr Smith and confirmed its contents insofar as they
7
related to her. She thus failed to take the court into her confidence about what
exactly she had done to refresh her memory , including whether or not sh e had
opened an internal file as required by her employer as ‘standard operating
procedure’, which no doubt would have provided a record of the steps taken by
her after service of the summons, as well as when those steps were taken.
[14] The applicants also contended that the two orders granted by the registrar
were ‘vastly different in both substance and form ’, because one imposed joint
liability (on Mr Smith and the CC) and the other imposed joint and several
liability on Mrs Smith together with Mr Smith and the CC. This, according to
them, gave rise to an ‘untenable’ situation because two different orders were
granted in the same action with different legal consequences.
[15] As to the merits of the defence they wished to raise, the applicants alleged
the following. The CC had needed to raise capital and did so by way of
refinancing some of its own equipment. Assisted by an en tity, Trend Office
Solutions (Pty) Ltd (Trend), the CC ‘facilitated’ the conclusion of a refinance
agreement with Technofin , in the form of a loan which the CC would repay
monthly whilst providing that equipment as security for the loan.
[16] The applicants did not dispute that the CC concluded the master rental
agreement with Technofin upon which Sasfin relied for its cause of action against
the CC, nor did they dispute the existence or terms of the two deeds of suretyship
executed by Mr and M rs Smith respectively. They alleged , however, that the
master rental agreement was a simulated transaction, as it did not reflect the true
agreement. Absent from Mr Smith’s founding affidavit were the essential
averments about who represented the parties in concluding that ‘refinanc ing’
agreement, when it was concluded, where it was concluded, and indeed whether
8
or not the monthly loan instalments had been paid. The founding affidavit
contained the most skeletal allegations on this score.
[17] Sasfin’s answering affidavit was deposed to by Mr Kughen Govender, its
litigation manager. He explained it was merely an oversight that Sasfin’s attorney
had not applied simultaneously for default judgment against all three applicants.
After both were granted, warrants of execution against movable property were
issued by the registrar on 10 August 2021 , but were met with returns of non -
service at the Smiths’ residential address . On 21 September 2021, Sasfin’s
attorney telephonically contacted the Smiths at their place of business to discuss
the matter with them. The attorney was informed that the Smiths were away
travelling, but was provided with their email addresses.
[18] Sasfin’s attorney addressed an email to Mr and Mrs Smith at both those
addresses on 23 September 2021. That email, which was annexed to Sasfin’s
answering affidavit, informed them of the default jud gments; annexed the two
default judgment orders; ad vised them of the failed attempts to execute against
their movable property; and requested engagement on a possible settlement of the
judgment debt without the need for further costs to be incurred.
[19] Although no response was received directly from either Mr or Mrs Smith
(in the replying affidavit they both claimed to have not received the email) , a
notice of intention to defend was delivered by the applicants’ erstwhile attorney
on their behalf on 14 October 2021. This resulted in Sasfin’s attorney advising
him on 19 October 2021 of the default judgment s already granted against his
clients.
[20] In the interim it was established that the Smiths were still occupying their
residence, and re-issued warrants of execution were accordingly served on them
9
by the sheriff on 18 October 2021, which yielded nulla bona returns. There is a
dispute over whether personal service of the reissued warrants occurred. The
sheriff’s returns of service reflect this, but Mr and Mrs Smith deny it was the case.
They sought to make something of it.
[21] However nothing turns on this. The applicants cannot escape the following
undisputed facts. First, by 14 October 2021 at the latest, their erstwhile attorney
was already in possession of the information necessary to draft and deliver a
notice of intention to defend on their behalf. That information was not provided
to him by Sasfin’s attorney , but the applicants did not reveal how their own
attorney came to be in possession thereof. Second, by 19 October 202 1, that
attorney was aware that default ju dgments had been granted against his clients.
It was these pertinent facts that called for a reasonable and satisfactory
explanation by the applicants, enabling the court to properly assess not only wilful
default but also undue delay. No explanation was provided.
[22] Returning to the merits of the defence which the applicants sought to raise
in the event of rescission being granted, they alleged that Trend had agreed with,
or advised, them that the master rental agreement would in truth be a ‘refinance
agreement’. Apart from the fact that the applicants failed to identify Trend’s
employee who was allegedly the source of this information , Trend was not a
contracting party to the master rental agreement , but merely the supplier of the
equipment in question. Sasfin correctly submitted that the applicants were silent
on how the CC came to a cquire ownership of the equipment for ‘refinancing’
purposes in the first place, something which would have been known to them and
which one would have expected them to disclose.
[23] Ms Chantal Booysen and Ms Mariana Van Heerden of Technofin deposed
to affidavits confirming the following. Ms Booysen was the Technofin
10
representative who hand-delivered the master rental agreement and deeds of
suretyship for signature by Mr and Mrs Smith in her presence. She saw the
equipment being installed , and confirmed this to be the case with Mr Smith.
Thereafter Ms Booysen delivered the master rental agreement to Ms Van Heerden
for counter-signature. Both confirmed under oath that neither had agreed with the
applicants that the master rental agreement was a ‘refinance agreement’.
[24] Sasfin also produced documents and email communications between Trend
and Technofin leading up to the conclusion of the master rental agreement, which
demonstrate that its purpose was always the rental of new equipment by the CC.
Moreover, Mr Lourens Klopper, a director of Trend, deposed to an affidavit in
which he confirmed that: (a) he was the individual who dealt with the applicants
regarding the supply of the new equipment; (b) at no stage did he represent to,
or agree with, the applicants that th e master rental agreement was a ‘refinance
agreement’; ( c) Trend was the owner of the equipment prior to its sale to
Technofin; and (d) Trend’s technicians installed that equipment at the CC’s
premises pursuant to the conclusion of the master rental agreement.
[25] In the applicants’ replying affidavit none of the evidence put up by Sasfin
was disputed, either seriously or at all. Instead the applicants retreated to raising
baseless technical points and attempting to shift blame on to their erstwhile
attorney, who was again deprived of the opportunity to place his version before
the court. The ineluctable inference is that they had no persuasive response to the
weight of evidence against them.
Discussion
[26] The only real difference between an application for rescission of a default
judgment brought in terms of rule 31 (2)(b), and one brought under the common
law, is the period in which such an application must be brought after knowledge
11
of the judgment is obtained. Rule 31(2)(b) prescribes 20 days, whereas under the
common law , the application must be brought within a reasonable time.
Otherwise, in both instances the applicant must : (a) give a reasonable and
satisfactory explanation for their default; and (b) show that on the merits there is
a bona fide defence which prima facie carries some prospect of success.6 From
the summary of evidence set out above , there is little doubt that the applicants
failed to meet either requirement, and certainly not the threshold of s 17(2)(f).
[27] The applicants’ reliance on rule 42 is also misplaced, since the orders
granted by the registrar were neither erroneously sought nor granted. The ir
complaint about the different effects of the two orders is without substance. The
orders are capable of being read in harmony with each other. If anything, the first
order is to the benefit of Mr Smith and the CC. Their joint liability thereunder is
limited to each being liable f or 50% of the judgment debt , despite the terms of
the master rental agreement and the deed of suretyship executed by Mr Smith.
[28] The applicants did not seek condonation for the late filing of their
application for rescission, since they adopted the stance that the period between
22 March 2022 and 21 April 2022 was a reasonable one. However they were
required to furnish an explanation for the delay, at least between 19 October 2021
(when their erstwhile attorney was advised that default judgment s had already
been granted) and 21 April 2022 (when their application for re scission was
launched). This is a substantial delay of some 6 months.
[29] In any event, while one of the factors to be taken into account in
considering whether to grant condonatio n is an applicant’s prospects of success
on the merits ., and strong prospects may excuse an inadequate explanation for
6 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 [2021] ZACC 28; 2021(5) SA 327 (CC); 2021 (11) BCLR
1263 (CC) para 71.
12
delay (to a point) 7, the merits of the applicants’ defence in the present instance
are so weak that inevitably they were nonetheless bound to fail.
Order
[28] In the result, the following order is made:
The reconsideration application in terms of section 17(2)(f) of the Superior Courts
Act 10 of 2013 is struck from the roll with costs.
_____________________________
J CLOETE
ACTING JUDGE OF APPEAL
7 Valor IT v Premier, North West Province and Others [2020] ZASCA 62; [2020] 3 All SA 397 (SCA); 2021 (1)
SA 42 (SCA) para 38.
13
Appearances
For applicant: J Sullivan
Instructed by: Waldick Inc, Centurion
Symington & De Kok Inc, Bloemfontein
For respondent: N Lombard
Instructed by: Wright Rose-Innes Inc, Johannesburg
Phatshoane Henney Attorneys, Bloemfontein.