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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)

CASE NO: 3478 /2023

Reportable

YES/NO

In the matter between:

NAXA TRADING (PTY) LTD First Applicant
NCEBAKAZI BHEKEZULU Second Applicant
and
VOLTEX (PTY) LTD First Respondent
SHROSBREE TRUSTEES Second Respondent
___________________________________________________________________

Judgment
___________________________________________________________________
Cengani-Mbakaza AJ
Introduction

[1] This is an opposed application for the rescission for a final order of
liquidation granted by this court on 14 May 2024. The impugned order reads
thus:
1. The Rule Nisi be and is hereby made absolute.
2. The cost of this application shall be costs in the liquidation.

[2] The first applicant (N axa) is a company duly registered in terms of the
Company Laws of the Republic of South Africa. It has its address and principal
place of business at No 2 […] W[...] Drive, Fortgale, Mthatha (the registered
address). The company deals with plant hiring. The s econd applicant (Ms
Bhekezulu) is identified as a businessperson, the sole director of the first
applicant.

[3] The 1 st respondent (Voltex) is a company , which has been duly
incorporated with limited liability in accordance with the company laws of the
Republic of South Africa. It has its registered address at Freestone Office Park,
1[...] P[...] Road, Sandton. Voltex is one of the largest suppliers of electric
equipment and components in South Africa. It is a wholly owned subsidiary of
Bidvest Group Limite d, which is listed on the Johannesburg Stock exchange.
Voltex trades under several trading styles and division including Atlas Cables,
Cabstruct Johannesburg, Phambili interface and Techni -Lamp. The second
respondent is a liquidator cited as an interested party in the proceedings.

The background facts
[4] The legal dispute between Voltex and Naxa stems from a disputed credit
agreement (the agreement) concluded by both parties on 18 November 2021.
Voltex claims that Naxa is indebted to it in the amount of R453 611.05 arising
from the purchase of goods.

[5] Voltex avers that according to the agreement, Naxa would purchase
goods from it on credit. As part of the agreement, the terms and conditions were
incorporated thereto. Voltex asserts that it duly complied with all its obligations,
the goods were delivered during the period of October 2021 to March 2022.
However, Naxa failed to pay the stated amounts within 30 days from the date of
Voltex’s statements.

[6] On 23 August 2023, Volte’s attorneys a ddressed a letter to Naxa, a
statutory letter in terms of s 345 of the Companies Act 61 of 1973 (the
Companies Act), demanding payment in compliance with the agreement. Naxa
received the letter as per Sherrif’s return of service dated 1 September 2023.

[7] Despite demand, Naxa failed to pay the amount allegedly owed. On 29
September 2023, Voltex filed an application to place Naxa under provisional
winding- up. Voltex also applied that the service of the rule nisi be effected at
the registered office of Nax a, by one publication in the Daily Dispatch
newspaper and by registered post. The interim order was returnable on 14
November 2023.

[8] The application papers for the provisional winding - up were served at
Naxa’s registered address as per the Sherrif’s re turn of service. The interim
order was granted on 19 March 2024 and Naxa was placed under provisional
winding- up. The order contained directives for service which were complied
with.

[9] In compliance with the court’s directives, the interim order was
published twice in the Daily Dispatch newspaper on 3 April 2024 and on 26
April 2024. The interim order was further served on Naxa’s registered address.

The interim order was further served upon the SARS at 3-3[...] P[...] F[...] Park,
P[...] F[...] Road, Chiselhurst, East London , on 15 April 2024 and again on 25
April 2024. The interim order was further affixed to the notice board as per the
court’s directives.

[10] It is common cause that on 16 April 2024, the matter was postponed to
the 30 April 2024. There was no opposition in all the mentioned dates and the
final order was granted on 14 May 2024.

Naxa’s case
[11] In support of the application for the rescission of the final court order
dated 14 May 2024, Ms Bhekezulu asserts that the main application did not
come to her attention and was not aware of it. She indicates that she only
became aware of the court order when her attorneys of record informed her.

[12] Her attorneys undertook to investigate the circumstances that led to the
granting of the final order and revert. She also instructed her attorneys to
negotiate a settlement of the debt, with the aim of having the liquidation order
rescinded by consent. Briefly, her attorneys of record uplifted the file in court
and sent a letter to Voltex’s attorneys negotiating a settlement. No response was
received.

[13] Ms Bhekezulu avers that Naxa or its representative was never served
personally with the rule nisi order. Instead, the return of service demonstrates
that on 13 March 2024, the main application was served by way of affixing to
the main door of the given address operating as Mangaliso guest house. The
interim order was served again at the same address to a person who did not give
his name. Naxa avers that the final order was therefore erroneously granted.

[14] In his argument, Naxa’s counsel contended that the manner in which the
sheriff served the main application was irregular. It was impermissible for the
sheriff to affix a copy of the main application at the main door of a ‘given
address’. The form of service opted for by the sheriff, so it was argued, is only
permissible in instances where a litigant has chosen domicilium citandi et
executandi. Even in those instances, the duty is upon the sheriff to serve process
by delivering or leaving a copy thereof in the manner by which, in the ordinary
course, the process would come to the attention and be received by the intended
recipient.

[15] Naxa’s representative also asserts that the letter of demand was served to
a domestic worker. She further avers that no agreement was concluded between
Naxa and Voltex. Naxa never entered the doors of Voltex in any branch in
Mthatha. In disputing the agreement, Ms Bhekezulu also claims that the
signature appearing at page 24 of the purported agreement is not hers.

[16] She went to Ngangelizwe Police station to lay a criminal case of fraud.
She gave police officers a list of Naxa’s employees to investigate the case. It
transpired that the agreement was allegedly entered into by one of Naxa’s
employees without her permission. According to Naxa, Voltex failed to do a
proper verification before granting the credit. In a nutshell, Ms Bhekezulu
contends that the terms and conditions of that particular agreement are not
binding on Naxa.

Voltex’s case
[17] In its opposition Voltex contends that given the fact that Naxa has been
finally liquidated, it ought and should have joined the Master of the High Court
and all its creditors and the liquidators who were appointed to attend to the

winding-up. These parties, so it asserted, have a legal interest in the outcome of
the application for rescission of the final liquidation order.

[18] Voltex avers that Naxa has failed to show a bona fide defence and there
are no prospects of success in the main application . According to Voltex, there
is no single iota of evidence suggesting that Naxa is solvent ; no documentary
evidence was presented to demonstrate Naxa’s financial position.

[19] Voltex disputes the allegations of fraud , asserting that in a telephonic
conversation between the attorneys, a settlement offer was discussed. Moreover,
a letter was dispatched to Voltex discussing the payment plan , and there was
never any suggestion that the agreement emanated from fraud , which was
eventually reported to the police.

[20] Voltex further argues that Naxa failed to provide a satisfactory and
reasonable explanation for default in that despite numerous correspondences
that were sent to Naxa, it failed to corporate. Voltex refers, inter alia, to a letter
of demand dated 23 August 2023 which was sent to Naxa’s email address. In
summary, Voltex avers that the main application was properly served and the
interim as well as the final orders were correctly granted.

The preliminary issues: non-joinder
[21] In its papers N axa did not adequately address this issue.
Notwithstanding this, it needs to be established whether the Master of the High
Court and all the creditors have direct and substantial interest in the proceedings
before this court. The other determining factor i s whether these parties are
likely to be affected by the outcome of the case. The question of prejudice is
also a consideration. In Transvaal Agricultural Union v Minister of Agriculture

and Land Affairs 1, the Supreme Court of Appeal (SCA) adopted the following
test:
‘In Van Winsen, Cilliers and Loots Herbstein & Van Winsen’s The Civil Practice of the
Supreme Court of South Africa 4th ed at 172 the learned authors supply a useful summary
of the approach of the Court in the Amalgamated Engine ering case in determining, by
way of two tests, whether a third party has a direct and substantial interest in the outcome
of litigation. Concerning the two tests, the learned authors state as follows:
‘The first was to consider whether the third party wou ld have locus standi to claim relief
concerning the same subject -matter. The second was to examine whether a situation
could arise in which, because the third party had not been joined, any order the Court
might make would not be res judicata against him, entitling him to approach the Courts
again concerning the same subject-matter and possibly obtain an order irreconcilable with
the order made in the first instance.’

[22] It is discernible from the papers filed that after the liquidation order was
obtained, Voltex took the necessary steps to implement the order. For obvious
reasons, the master of the High Cou rt became involved in the process. As a
matter of principle, creditors are primary interested parties in a liquidation
process. This is so because the liquidation process is a credit -driven process
designed to sell a company’s assets and distribute the proceeds among the
creditors in accordance with their legally determined priority.

[23] In casu, the joinder of Ms Bhekezulu as proposed by Naxa’s couns el is
insufficient. Despite it being a rescission application, the failure to join the
Master of the High Court as well as Naxa’s creditors renders the application
fatal. This proposition is fortified by the fact that the final order was already
obtained and the next procedural steps had already taken place , and obviously
the outcome of this application is likely to affect all the relevant parties.

the outcome of this application is likely to affect all the relevant parties.

1 2005 (4) SA 212 (SCA) at para 66.

The applicants’ locus standi
[24] The debate of non -joinder also raises the issue of the applicants’ locus
standi, as argued by Voltex’s counsel. Despite this being vehemently opposed,
it suffices to mention that the SCA’s decision in Dr WAA Gous (Johannesburg)
v HR Computek (Pty) Ltd and Another2 provides context. It establishes that only
a liquidator, creditor or member can bring a rescission application under s 354
(1) of the Companies Act.

[25] Section 354 of the Companies Act provides that:
‘(1) The Court may at any time after the commencement of a winding -up, on the application
of any liquidator, creditor or member , and on proof to the satisfaction of the Court that all
proceedings in relation to the winding -up ought to be stayed or set asid e, make an order
staying or setting aside the proceedings or for the continuance of any voluntary winding -up
on such terms and conditions as the Court may deem fit.
(2) The Court may, as to all matters relating to a winding -up, have regard to the wishes of the
creditors or members as proved to it by any sufficient evidence.’ (accentuation added)
Notwithstanding the aforesaid, I proceed to deal with main application in turn:

The legal framework governing the application for rescission
[26] Gleaning from Naxa’s founding affidavit, the application is brought in
terms Rule 42(1) of the Uniform Rules of Court. In the alternative, Naxa relies
on Rule 31(2)(b). Rule 42(1)(a) provides that the High Court may, in addition to
any other powers it may have, mero motu or upon the application of any party
affected, rescind or vary an order or judgment erroneously ought or erroneously
granted in the absence of any party affected thereby. In Colyn v Tiger Food

2 (909/2023) [2025] ZASCA 103; 2025 (6) SA 89 (SCA) (15 July 2025)

Industries Ltd ta Meadow Feed Mills (Cape) 3, Jones AJA (with Olivier JA and
Cameron JA concurring) held:
‘[5] Rule 42 caters for mistake. Rescission or variation does not follow automatically upon
proof of a mistake. The Rule gives the Courts a discretion to order it, which must be
exercised judicially.
[6] Not every mistake or irregularity may be corrected in terms of the Rule. It is, for the most
part at any rate, a restatement of the common law. It does not purport to amend or extend the
common law. That is why the common law is the proper context for its interpretation.
Because it is a Rule of Court its ambit is entirely procedural.’[footnotes omitted].

[27] This principle was restated in Zuma v the Secretary of the Judicial
Service Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector including Organs of the State and Others 4
(Zuma),where the Constitutional Court (CC) stated:
‘[53] It should be pointed out that once an applicant has met the requirements for rescission, a
court is merely endowed with the discretion to rescind its order. The precise ruling of rule 42,
after all, postulates that a court ‘may’, not ‘must’, rescind or vary its order -the rule is merely
an ‘empowering’ section and does not compel the court ‘to set aside or rescind anything’.
This discretion must be exercised judicially.’

[28] Clearly, the purpose of Uniform Rule 42 is to correct expeditiously and
obvious wrong judgment or order . A judgment is considered erroneously
granted if, at the time of granting it, there were facts unknown to the court and
these facts, if known, would have barred the granting of the judgment. 5 In casu,
after consideration and in the absence of facts suggesting that the order was
granted erroneously, I conclude that there was no mistake in the granting of the
order dated 14 May 2024.

3 2003 (6) SA 1 (SCA); see also Theron NO v United Democratic Front (Western Cape Region) and

3 2003 (6) SA 1 (SCA); see also Theron NO v United Democratic Front (Western Cape Region) and
Others) 1984 (2) SA 532 (C) at 536G. and Tshivhase Royal Council and Another v Tshivhase and Another;
Tshivhase and Another v Tshivhase and Another 1992 (4) SA 852 (A) at 862J - 863A.
4 [2021] ZACC 28.
5 Rossiter &Others v Nedbank Ltd (96/2014) 2015 ZASCA 196 (1 December 2015) at para 16.

[29] The next issue for determination pertains to whether Naxa has ma de a
case for the rescission of the order under Rule 31(2)(b) of the Uniform Rules of
Court. Rule 31(2)(b) which is also applicable to provides:
‘A defendant may within 20 days after acquiring knowledge of such judgment apply to court
upon notice to the pl aintiff to set aside such judgment and the court may, upon good cause
shown, set aside the default judgment on such terms as it deems fit’.

[30] The legal position is that the applicant is required to provide a reasonable
explanation for the default and demonstrate that it has a bona fide defence to the
main case. Although gross negligence may be condoned, wilful default is fatal.
Referring to various authorities 6, in his body of work 7, the learned author
Harms, states that the bona fide defence needs to be stablished prima facie only
and it is not necessary to deal fully with the merits of the case or to prove the
case. It is trite that the court has a wide discretion in evaluating ‘g ood cause’ in
order to ensure that justice is done between the parties. 8 A good cause can
compensate for a poor explanation and vice versa.9

[31] In considering whether the default was wilful, the case of Harris v ABSA
Bank (Pty) LTD Volksas, 10serves as a guide. In this case the following was
stated:
‘Headnote: 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

6 Standard Bank of South Africa Ltd v El- Naddaf 1999 (4) SA 779 (W) at 784; see also Trapel Farms CC and
Others v Rodel Financial Services (Pty) Ltd 2855/2010) [2011] ZAKZPHC 59 (20 October 2011)
at para19.
7 Harms, Civil Procedure in the Superior Courts, Service Issue 52, Vol1, B-204.
8 Wahl v Prinswil Beleggings (Edms) Bpk 1984 (1) SA 457 (T).
9 Zealand v Milborough 1991 (4) SA 836 (SE).
10 2006 (4) SA 526 (T).

the steps required to avoid [E] the default. Such an applicant must deliberately, being free to
do so, fail or omit to take the step which would avoid the defa ult and must appreciate the
legal consequences of his or her actions. A decision freely taken to refrain from filing a
notice to defend or a plea or from appearing will ordinarily weigh heavily against an
applicant required to establish sufficient cause. However, it is not correct [F] 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 established must not be unduly restricted. 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’.

[32] Rule 31(2)(b) is a sequel to Rule 31(2)(a) of the Uniform Rules of Court
which provides:
‘Whenever in an action the claim or, if there is more than one claim, any of the claims is not
for a debt or liquidated demand and a defendant is in default of notice of intention to defend
or of a plea, the plaintiff may set the action down as provided in subrule 4 for default
judgment and the court may. After hearing evidence, grant judgment against the defendant or
make such order as it deems fit.’

[33] Given the ci rcumstances, the reliance on Rule 31(2)(b) of the Uniform
Rules of Court is misplaced, as none of the prerequisites listed in terms of this
Rule were present when the liquidation application was launched.

[34] The next issue to consider is whether this application has prospects of
success under common law. In Zuma11, the CC emphasised the requirements for
the rescission of the judgment in terms of the common law as follows:
‘[71] The requirements for rescission of a default judgment are two -fold. First, the applicant must furnish a

reasonable and satisfactory explanation for its default. Second, it must show that on the merits it has a bona fide
defence which prima facie carries some prospect of success. Proof of these requirements is taken as showing
that there is sufficient cause for an order to be rescinded. A failure to meet one of them may result in refusal of
the request to rescind.’
‘Thus, the existing common law test is simple: both requirements must be met’.

11 Fn 4 above.

[35] It is undisputed that all the liquidation papers including the interim order
were served at Naxa’s registered address. On 31 August 2023, the letter of
demand was served on an adult person at the address. Other documents
including the noti ce of motion and founding affidavit were served on another
adult person on 05 October 2023. Notably, there were indicators that Naxa
Trading had vacated the address.

[36] An argument was raised that Voltex’s manner of service was
impermissible. This argument is detrimental to Naxa’s case, given the fact that
the address at which the sheriff effected service of the liquidation papers is, in
fact, Naxa’s registered address. This proposition is supported by the Companies
and Intellectual Property Commissi on (CIPC) search report regarding Naxa
Trading, as reflected at pages 105 to 110 of the court’s index bundle of
documents.

[37] Evidently, Naxa registered the said address for the purposes of receiving
all notices and communications, as required by the company laws. I agree with
Voltex’s counsel that Naxa’s omission to amend its registered address details
was deliberate, showing a lack of regard for the legal process.

[38] Notably, in an affidavit that she made to the police, Ms Bhekezulu stated
that she became aware of the frozen bank accounts on 15 April 2024, prior to a
final order being granted on 14 May 2024. This suggests th at Naxa and/or Ms
Bhekezulu had personal knowledge of the liquidation application.

[39] Moreover, the interim order was served in accordance with the court’s
directives which were complied with. Therefore, in the circumstances, Naxa has
failed to provide a satisfactory and reasonable explanation for the default.

[40] The final issue is whether Naxa has shown a bona fide defence which
carries prima face prospects of success. A bona fide defence necessitates full
disclosure of the nature, grounds and material facts relied upon to support the
defence. Naxa’s defence is predicated on fraud allegation, based on its
purported lack of knowledge of the agreement. However, the presentation of the
case number and supporting affidavit to the police is inadequat e considering the
following :
(a) Naxa avers that upon discovering that its accounts were frozen and could no
longer operate, it became aware of the court order.
(b) Police obtained the statements in relation to the allegations of fraud on 22
May 2024.
(c) The next day, Naxa sent a letter to Voltex proposing settling the debt and
rescinding the final order by consent. Notably, the letter had no mention of the
fraud allegations and this issue was never raised subsequently.

[41] All these facts contradi ct the claim that the agreement was fraudulent.
In my opinion, settling the debt implied acknowledgement of the agreement,
undermining the allegations of fraud. Accordingly, Naxa has failed to establish
a bona fide defence with reasonable prospects of succ ess. Consequently, the
application for the rescission of the order by default must fail.


Order
[42] The following order shall issue:
1. The application for the rescission of the order dated 14 May 2025
is dismissed with costs on Scale A.

______________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT




APPEARANCES:

Counsel for the applicants : Adv S Genukile
Instructed by : Whitesides Attorneys
Makhanda

Counsel for the Respondents : Adv G W Brown
Instructed by : Wheeldon Rushmere
Makhanda

Date heard : 10 October 2025
Date delivered : 29 January 2026