In the matter between:
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
MOTSHIDISI SELINA SETHLARE
and
MOEKETSI PETRUS LEFU
Not Reportable
Case no: A29/2023
APPELLANT
RESPONDENT
Neutral citation: Seth/are v Lefu (A29/2023) [2026] ZAFSHC 7 (14 January 2026)
Coram: REINDERS et DANISO JJ
Heard: 4 August 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 11 h00 on 14 January 2026
Summary: Application for condonation for late filing of the notice of appeal , record
of appeal and reinstatement of appeal - gross non-compliance with court rules and
failure to provide reasonable explanation for non-compliance - condonation for the
late filing of the notice of appeal dismissed - no basis to consider the remainder of the
orders sought.
2
ORDER
1 The late filing of the respondent's answering affidavit is condoned.
2 The application for condonation of the late filing of the notice of appeal is dismissed
with costs.
JUDGMENT
Daniso J (Reinders J concurring)
[1] This is an opposed appeal against the whole judgment of the Regional Magistrate,
Bloemfontein delivered on 27 May 2022 in which the appellant's application for rescission
of the default judgment granted in favour of the respondent on 15 October 2021 was
dismissed with costs.
[2] The notice of appeal in the court a quo was delivered on 24 November 2022,
approximately six months after the date of the judgment appealed against. The appeal has
also lapsed due to the appellant's failure to timeously apply for the assignment of the date
for the hearing of the appeal within 60 days after delivery of the notice of appeal and to
lodge the record. It is in that regard that the appellant also seeks condonation for late filing
of the notice of appeal, the reinstatement of the appeal and condonation for the late
lodgment of the record. Leave to adduce further evidence in the course of the appeal is
also sought.
[3] The chronology of the events pertinent to this matter is generally common cause.
The default judgment emanated from the action instituted by the respondent, as plaintiff,
on 22 July 2021 against the appellant , as defendant , for damages in the amount of R369
025.60, together with interest and costs. The claim arose from latent structural defects in
the immovable property the appellant sold to the respondent in terms of a sale agreement
concluded by the parties on 21 November 2019 . The action was undefended and , as a
result, default judgment was granted in favour of the respondent. The appellant's
rescission application was lodged during January 2022. It was premised on the grounds
that summons did not come to her attention as it was served at her previous address which
was at that stage occupied by the respondent. The court a quo was satisfied that the
was at that stage occupied by the respondent. The court a quo was satisfied that the
appellant sufficiently explained the reason for her default. The application was dismissed
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on the grounds that, except to aver in her founding affidavit that she has a bona fide
defence to the respondent's claim, the appellant failed to disclose the actual defence as
provided for in the Magistrates' Courts rule 49(3).
[4] In addition to the determination of the appellant's condonation applications and the
appeal, there is a preliminary issue which needs to be addressed namely, the respondent
seeks condonation for the late filing of his answering affidavit to the application for
condonation .
[5] The reasons for the late filing of the answering affidavit are set out in his attorney's
affidavit who explains that the respondent was served with the application for condonation
on 6 December 2023. The answering affidavit was due by 18 January 2024; however, it
was only filed on 1 February 2024, approximately ten days late. The delay is attributed to
the unavailability of counsel and closure of the offices of the respondent's attorneys' offices
due to the festive season and the miscalculation of the applicable time periods for the filing
of the answering affidavit.
[6] At the commencement of the proceedings, the parties indicated that they were
desirous in having the matter dealt with on its merits considering that the appeal has also
lapsed. Having considered the age of the matter, the fact that the delay of ten days is not
extreme and that no prejudice is indicated or detected in condoning the respondent's
answering affidavit, we hold that it would be in the interests of justice and of the parties, as
well that this matter is advanced, by condoning the respondent's late answering affidavit.
[7] In terms of the Magistrates' Courts rule 51(3), the notice of appeal had to be
delivered in the court a quo within 20 days after the date of the of the judgment appealed
against. The notice of appeal was filed approximately six months later on 24 November
2022, coupled with an application for condonation. The respondent opposed the
2022, coupled with an application for condonation. The respondent opposed the
application for condonation on the grounds that it constituted an irregular step as
condonation ought to have been filed in the high court where the appeal lies. Pursuant to
the appellant's failure to cure the defective step, the respondent moved to obtain an order
to strike out the application for condonation in terms of the Magistrates Courts rule 60A.
The order upholding the respondent's objection in this regard was granted on 27 November
2023.
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[8] The application for the condonation of the late filing of the notice of appeal was
thereafter filed in this Court on 6 December 2023, followed by an application for
condonation of the late lodgment of the record approximately 11 months later, on 8
November 2024. The applications were opposed by the respondent and subsequently
enrolled for hearing by the respondent due to the appellant's failure to take any further
steps to enroll the applications and the appeal for hearing. The applications, together with
the appeal, served before Naidoo J and Opperman J on 25 November 2024. They ordered
that the appeal and the application for condonation be struck from roll on the basis that the
appeal had lapsed. The application for the reinstatement of the appeal was thereafter filed
on 5 December 2024.
[9] The explanation for the appellant's failure to comply with the court rules is attributed
to lack of financial means to fund the appeal. It is the appellant's case that she was
informed about the judgment by her erstwhile Legal Wise appointed attorney Mr Lennox
from Messrs Lovius Block Attorneys on 28 May 2022. At this time, up to 23 June 2022, she
was unable to attend to the appeal due to work related commitments. During July 2022,
she set about obtaining copies of the contents of the court file in order to appoint an
alternative legal representative as she was not satisfied with the manner in which Mr
Lennox dealt with her matter. On the first day tha{ she went to court, she was informed that
the file was missing. On the next day, she was told that the file had been located but there
was no paper to print the copies. When returned to court with the printing paper, the court
clerk was unavailable to assist her. Eventually when she was provided with the copies of
the file contents, she went to Messrs Lovius Block' offices only to find that Mr Lennox had
resigned and the owner of the firm was in Cape Town. She was informed that she will be
resigned and the owner of the firm was in Cape Town. She was informed that she will be
contacted once her file had been located. It was after a few days that she was provided
with the file. She then went to Legal Wise to request assistance with a legal representative.
She was informed that she would no longer be assisted as her case was finalised.
[1 O] On 30 July 2022, she consulted with her current attorneys of record, Messrs Seobe.
A deposit of an amount of R35 500 was required in order to instruct counsel to assist with
the appeal. Due to financial obligations which include school fees for her two minor
children, transport and other household expenses, her salary of R29 000 was not enough
to cover the required deposit. She paid the deposit on 14 November 2022 after obtaining
loans from her younger sister, the bank and a cash loan institution. The notice of appeal
was thereafter filed on 24 November 2022.
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[11] A month after the notice of appeal and the application for condonation was filed in
the court a quo, the respondent filed a notice to oppose the application for condonation on
the grounds that it ought to have been filed in the high court where the appeal lies and this
is despite the fact that it was the appellant's intention to deal with it in the high court not in
the court a quo. A period of 11 months elapsed from the date of the respondent's opposition
and subsequent Magistrates' Courts rule 60A application to the date of the handing down
of the judgment on 27 November 2023, resulting in a further delay as the appellant had to
wait for the respondent's application to be finalised.
[12] The appeal had to be prosecuted by 20 February 2023. The delay in prosecuting
the appeal and the lodgment of the record is also attributed to the respondent's rule 60A
application and lack of funds. The first part of the record, volume 1, was filed on 16
November 2023. She was unable to file the remaining part volume 2, because she retired
from her employment on 30 June 2024 and, as a result, she had to wait for payment of her
pension fund which she received in September 2024. The remaining part of the record was
filed on 30 October 2024.
[13] It is the appellant's case that she has good prospects of success in the appeal as
the default judgment was granted despite the fact that she was not served with the
summons, the result is that she was denied access to justice. The appellant further submits
that, in granting the default judgment , the court a quo did not properly apply its mind to the
facts and the documents that were placed before it otherwise it would have noticed that
the respondent was not entitled to the judgment as in terms of clause 15 of the sale
agreement, the property was sold voetstoots. There was also no proof that payments were
made in terms of the quotations and invoices relied upon for the quantum. She concedes
made in terms of the quotations and invoices relied upon for the quantum. She concedes
that the voetstoots and the other defences were not averred in her founding affidavit filed
in support of the rescission application. She explains that, as a lay person, she relied on
her previous attorney to advise her accordingly but the attorney failed to even advice her
of her right to file a replying affidavit and it is for that reason that she also seeks an order
to lead this evidence on appeal.
[14] Relying on Lodhi 2 Properties Investments CC and anotherv Bondev Developments
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(Pty) Ltcfl and Fraind v Nothman, 2 it is argued on behalf of the appellant that a judgment
granted in the absence of a party without notice of the proceedings having been given such
judgment is granted erroneously thus liable to be set aside in terms of rule 42 (1 )(a).
[15] The appellant contends that she stands to suffer serious prejudice if condonation is
not granted as she will have to pay the respondent for damages and costs of demolishing
the property and build it afresh or making major renovations which are unrelated to the
alleged defects while the respondent viewed the property on several occasions before
purchasing it without pointing out the defects whereas, the respondent does not lay any
basis why he would be prejudiced should condonation be granted to the appellant. Based
on all these reasons, the appellant contends that there was no willful dilatory in filing the
notice of appeal. It would be in the interest of justice that this court exercises its discretion
in favour of granting condonation.
[16] The respondent's grounds of opposition are briefly as follows. The application for
condonation has been brought very late and there is paucity regarding the reasons and
the specific dates in respect of the delay in appointing a new legal representative. The
appellant has also relied on inadmissible hearsay evidence in relation to the delay
attributed to lack of funds in that, she has averred that she only became able to pay the
required deposit for legal costs after she was loaned funds however no confirmatory
affidavit from the loan providers has been filed.
[17] The respondent further states that the appellant is solely responsible for the 11
months delay emanating from the proceedings launched by the respondent in opposing
the application for condonation of the notice of appeal lodged in the court a quo as it was
fatally defective. Despite conceding on the papers that it had to be filed in the court where
fatally defective. Despite conceding on the papers that it had to be filed in the court where
the appeal lies, the appellant went on to resist the respondent's application to set it aside
with the result that the matter was argued in the court a quo and consequently struck out
with a cost order on 27 November 2023.
[18] The appellant has repeatedly ignored and disregarded the rules and procedures of
this Court. This application is the appellant's fourth bite of the proverbial cherry. Already
1 Lodhi 2 Properties Investments CC and another v Bondev Developments (Pty) Ltd [2007] ZASCA 85; (2007]
SCA 85 (RSA) ;2007 (6) SA 87 (SCA) para 24.
2 Fraind v Nothman 1991 (3) SA 837 (W).
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by 8 November 2021, she was aware of the default judgment granted against her. She
only lodged the rescission application late on 17 January 2022. The ineptitude was
condoned by the court a quo. Following the striking out of the abortive application for
condonation on 27 November 2023, the appellant filed another application for condonation
in this Court on 6 December 2023 but failed to enroll it for hearing.
[19] It is the respondent's case that the explanation for failing to prosecute the appeal
and to lodge the record is also a woefully inadequate attempt to breathe life into an appeal
that is abortive ab initio. Except for the notice of appeal filed with in the court a quo there
is no notice of appeal filed in this Court, accordingly there is no appeal to be reinstated.
[20] The respondent disputes that the appellant has good prospects in the appeal. He is
adamant that summons was served at the appellant's chosen domicilum address, a fact
that she admits. It was the appellant's responsibility to give formal notice of her amended
domicilum address. In her founding affidavit, she also failed to plead defence she intended
to raise in the event of rescission being granted for that reason, there would be no point in
granting condonation. The application for condonation and to lead further evidence is
simply an attempt to remedy those deficiencies. The application constitutes an abuse of
process and no good cause has been shown for condonation.
[21] The respondent states that he is prejudiced by the appellant's failure to comply with
the court rules. It has been 31 months since the respondent obtained the judgment forming
the subject matter of this purported appeal, the appellant's rescission application was
unsuccessful, still the respondent has not been unable to execute on a judgment granted
in his favour. The delay has negatively impacted on his finances to litigate, the
administration of justice and the principle of finality. Based on all these reasons,
administration of justice and the principle of finality. Based on all these reasons,
condonation must be dismissed with costs.
[22] The delay in the filing of notice of appeal is indeed extreme. Despite the substantial
ineptitude , full details covering all the dates and reasons for the delay have not been
furnished to enable this Court to understand how it came about and to assess the
responsibility.3
3 Uitenhage Transitional Local Council v South African Revenue Service [2003] ZASCA 76; [2003] 4 All SA
37 (SCA); 2004 (1) SA 292 (SCA); 66 SATC 265 para 6.
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[23] Except to fleetingly aver that it was in July 2022 that she embarked on a quest to
obtain copies of court file and to seek alternative legal representation from Legal Wise,
there are no specifics in terms of the several dates she alleges she went to court, to the
office of her former legal representative and to Legal Wise. There is also no explanation of
the delay from 14 November 2022 when she paid the deposit to 24 November 2022 when
the notice of appeal was ultimately filed accompanied by an application for condonation.
[24] The application for condonation was defective. The Magistrates' Courts rule
60(5)(a) is clear on this aspect: condonation for non-compliance with the period prescribed
in Magistrates Courts rule 51 (3) is within the exclusive jurisdiction of the court where the
appeal lies. It was pointed out, in Commissioner, South African Revenue Service v Van
der Merwe, 4 that:
'What calls for an explanation is not only the delay in the timeous prosecution of the appeal, but
also the delay in seeking condonation. An appellant should, whenever she realizes that she has
not complied with a rule of this court, apply for condonation without delay.'
The appellant's attribution of the 11 months delay to the respondent for exercising his right
to oppose the defective condonation application is unreasonable.
[25] The situation is exacerbated by the appellant's pattern of engaging in a series of
violation of the court rules which include the filing of a defective condonation application in
the court a quo in contravention of Magistrates' Courts rule 60(5)(a), the failure to timeously
apply for the assignment of the date for the hearing of the appeal within 60 days after
delivery of the notice of appeal and to lodge the record as required by Uniform Rule
49(6)(a) and ?(a), respectively.
[26] It has been held that strong prospects of success on appeal may trump and
unsatisfactory explanation.5 In this matter, the appellant's allusion to good prospects of
unsatisfactory explanation.5 In this matter, the appellant's allusion to good prospects of
success on the appeal is devoid of any merit. The issue relating to the defective service of
the summons has already been determined in her favour in the court a quo.
[27] On the available facts, it is indisputable that the appellant's founding affidavit in
support of the rescission application. did not disclose her intended defence to the
4 Commissioner, South African Revenue Service v Van der Merwe [2015] ZASCA 86; 2016 (1) SA 599 (SCA);
[2015] 3 All SA 387 (SCA); 77 SATC 405 para 12.
5 Mosselbaai Boeredienste (Pty) Ltd v 0KB Motors CC [2023] ZASCA 91 .
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respondent's claim. The Magistrates' Courts rule 49 (3) deals with rescission and variation
of default judgments, in this regard it provides thus:
'Where an application for rescission of a default judgment is made by a defendant against whom
the judgment was granted, who wishes to defend the proceedings, the application must be
supported by an affidavit setting out the reasons for the defendant's absence or default and the
grounds of the defendant's defence to the claim.'
[28] The appellant has provided contradictory versions regarding the non-disclosure of
her defence in the rescission application. While she blames her former attorney for not
advising her to do so and request leave to adduce the evidence on appeal, on the other
side, she insists that, in terms of Uniform Rule 42 (1 )(a), the non-disclosure of her defence
should not have been taken into account in the determination of the rescission application
because the default judgment was granted erroneously. That aside, the appellant's upturn
reliance on Uniform Rule 42(1 )(a) and the related authorities is misplaced as the provisions
of Uniform Rule 42 deals with the variation and rescission of orders granted in the high
court. The criterion for a rescission application in the Magistrates' Courts is the explanation
of both the default and the grounds of the defendant's defence to the claim. The court a
quo was therefore correct in dismissing the appellant's recission application.
[29] The appellant's sluggishness and gross violation of the court rules militate against
the appellant's contention that the matter is important to her and that she is desirous of
advancing it to finality.
[30] It is axiomatic that gross non-compliance with court rules and the failure to provide
reasonable explanation has an adverse effect upon the administration of justice and the
interests of the respondent.
[31] The Constitutional Court, in Grootboom v National Prosecuting Authority and
[31] The Constitutional Court, in Grootboom v National Prosecuting Authority and
Another(Grootboom) ,6 long-established that all these factors are of relevant consideration
in condonation applications cumulatively with the interests of justice which cannot be
merely raised rhetorically but require the court to exercise its discretion judicially upon a
consideration of all the facts of the case and fairness to both sides. This condonation
6 Grootboom v National Prosecuting Authority and Another [2013) ZACC 37; 2014 (2) SA 68 (CC); 2014 (1)
BCLR 65 (CC); (2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) para 50; Mulaudzi v Old Mutual Life Assurance
Company (South Africa) Ltd and Others (2017] ZASCA 88; (2017) 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA)
para 26.
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application dismally falls short of the requirements contemplated in Grootboom; it stands
to be dismissed.
[32] In the light of the above reasons, no proper case has been made out for condonation
of the late filing of the notice of appeal. The appellant is thus not entitled to the remainder
of the orders she seeks.
Costs
[33] With regard to costs, there is no reason why the costs should not follow the result.
[34] In the result, the following is made:
1 The late filing of the respondent's answering affidavit is condoned.
2 The application for condonation of the late filing of the notice of appeal is dismissed
with costs.
I concur and it is so ordered.
JUDGE OF THE HI
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Appearances
For the appellant: B S Mene SC with N Phakama
Instructed by: S M O Seobe Attorneys, Bloemfontein
For the respondents : J Donnelly-Bornman
Instructed by: Kramer Weihmann Inc, Bloemfontein.