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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)
In the matter between:-
JACOB CHARLES MNISI
and
MAQANDASHI ELIAS MATHABA N.O.
RODAH LINDIWE MGWENYA N.O.
MENZI JOHN NYAMBI N.O.
ISAAC SITHOLE N. 0.
SMILE ZANDILE NKOSI N.O.
HENDRY SIPHO LAMOLA N.O.
MAHLEKISANE MOSA CHIRWA N.O.
BONGANI KENNETH SHAKOANE N.O.
JOSIAH NDABAMBI MOKOENA N.O.
AGNES NTOMIKAYISE MAVUSO N.O.
HLUPHEKA SALMINAH NOHALE N.O.
FANYANA ENOCH BHEMBE N.O.
1
CASE NUMBER: 1050/2021
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHTH RESPONDENT
NINETH RESPONDENT
TENTH RESPONDENT
ELEVENTH RESPONDENT
TWELFTH RESPONDENT
JUDGMENT ( LEAVE TO APPEAL)
GREYLING-COETZER J
[1] On 2 September 2022 this court dismissed the applications application for
recission of default judgement in terms of Rule 42(1)(a). The aforesaid judgment was
delivered ex tempore. Resulting in the inability to transcribe the record of proceedings
this court on request received on 13 August 2025 reconstructed its ex-tempore judgment.
The circumstances relevant thereto has been fully set out in the reconstructed ex
tempore judgment dated 13 August 2025 and need not be repeated herein.
[2] Aggrieved by the dismissal of the recission application, the applicant now applies
for leave to appeal to be granted to the full bench of this division.
[3] The facts that lead up to this point was equally set out in the reconstructed ex
tempore judgment dated 13 August 2025 and need not be restated safe to highlight that
the main action came before court as a default judgment. The default judgment was
granted by Roelofse AJ on 19 July 2021. The applicant there after launched the recission
application in February 2022, which was dismissed as set above by this court.
[4] The grounds relief on by the applicant is as follows:
1.
During the ex-tempore judgment handed down on 2 September 2022 the learner
judge held the following:
"I am not persuaded that it was a requirement of the respondent to annex the
facta probantia which it would ordinarily in a trial have relied on in the form of a
bank statement. Although in the particulars of claim it is alleged that the plaintiff
seeks damages, it is tried the damages are nqt automatically considered to be
2
illiquid. Damages, when it requires n<? intervention or grappling by the court in
order to establish same or perfectly liquid as in this case."
"Here the exact amount was pleaded to the cent and there was nothing for the
Court to establish therefore the Court granting the judgment was not required
to receive evidence as envisaged in terms of Rule 31(2) before granting the
order. This is in any event always remains an aspect in the discretion of the
Court."
2.
2. 1 In holding the above the court urged in dealing with a claim for a sum of money
alleged to have been stolen from the trust by the defendant as it would any
other claim for damages.
2.2 A claim for a sum of money alleged to have been stolen does not constitute a
claim for a debt or liquidated amount in terms of Rule 31 (2)(a).
2.3 In the absence of prima facie evidence not only of the defendant's
indebtedness and the amount of liability the plaintiffs require the assistance of
the court to determine liability on the amount thereof.
3.
3. 1 In paragraph 18 of the plaintiff's particulars of claim the plaintiff pleads that the
defendant disputes his liability towards the plaintiff
3.2 Once a debt is disputed then it is no longer liquid for purposes of default
judgment.
3.3 Considering paragraph 3.1 and 3.2 supra, the Court erred in not giving any
consideration to the fact that it was common cause between the parties at the
time that the default judgment was sought that the date was disputed by the
defendant.
3
[5] It is unclear where the quotation above as it appears per paragraph one of the
Application for leave to appeal emanates from, as same does not derived from the
reconstructed ex tempore judgment dated 13 August 2025, Which was reconstructed
on the request of the applicant as the record of proceedings of 2 September 2022 was
untraceable and could not be transcribe, it matters not.
[6] It is evident from paragraph 3 of the application for leave to appeal and so
confirmed in the heads of argument filed on behalf of the applicant that is the
applicants contend that: (1) the claim as pleaded was not liquidated and that this court
erred in finding that it was and (2) this court erred in not considering that it is common
cause that the applicant disputed the amount that was alleged to be stolen.
'
[7] The relevant portion of Section 17 of the Superior Court Act, 2013 provides
that leave to appeal may only be granted where the judge or judges concerned are of
the opinion that the appeal would have a reasonable prospect of success; there is
some other compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration and where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal would lead to a
just an prompt resolution of the real issues between the parties.
[8] In the matter of Ramakatsa and Others v African National Congress and
Another, 1 and dealing with the relevant provisions of the Superior Courts Act, held as
follows:
"[10] ... leave to appeal may only be granted where the judges concerned are of the
opinion that the appeal would have a reasonable prospect of success or there
are compelling reasons which exist why the appeal should be heard such as
the interests of justice. "2
[9] This court in Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd,3
concerning the provision of Section 17(1 )(a)(ii) of the Superior Courts Act, pointed out
2
3
2
3
(Case number: 72412019) [2021] ZASCA 31 (31 March 2021)
Nova Property Holdings Limited v Cobbett & Others [2016) ZASCA 63: 2016 (4) SA
317 (SCA) par [8]
[2020] ZASCA 17; 2020 (5) SA 35 (SCA)
4
/
that " ... if the court is unpersuaded that there are prospects of success, it must still enquire
into whether there is a compelfing reason to entertain the appeal. Compelling reason would of
course include an important question of law or a discreet issue of public importance that will
have an effect on future disputes. However, this Court correctly added that 'but here too the
merits remain vitally important and are often decisive' ... The test of reasonable prospects of
success postulates a dispassionate decision based on the facts and the law that a court of
appeal could reasonably arrive at a conclusion different to that of the trial court. In other words,
the appellants in this matter need to convince this Court on proper grounds that they have
prospects of success on appeal. Those prospects of success must not be remote, but there
must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that
there are prospects of success must be shown to exist.'"'
[1 O] In respect of the first ground, the applicant submitted that there are conflicting
judgments pertaining to the question whether a claim for a debt or liquidated demand
where the claim is that the sum of money was stolen from the plaintiff. On this basis it
is contended that it is in the interest of the pubic that legal certainty be obtained.
[11] In this respect the applicant relies on Du Toit v Grobler 1947 (3) SA 213
(SWA) (Du Tait), Brown Bros and Taylor (Pty) Ltd v Smeed 1957 (2) SA 498 (C)
(Brown) and Colrod Motors (Pty) Ltd v Shula 1976 (3) SA 836 (W) (Colrod) to
demonstrate same. Eloff J in Colrod declined to follow Du Toit and followed the
position in Brown.
[12] In respect of the second ground, it is contended on behalf of the applicant that
although the respondent pleaded that the money was stolen by the applicant per the
particulars of claim, the respondent went further and placed its own cause of action in
particulars of claim, the respondent went further and placed its own cause of action in
dispute by pleading that the applicant contends that the transferred were authorized
by a traditional leader, Chief Dhlamini. Therefore, it was argued on the respondent's
own pleadings the claim was disputed, and default judgment should not have been
granted. Further that the cause of action was no theft of money but a condictio sine
cause. It was submitted that once the claim was disputed (even by the respondent
itself) the default court is then to enquire into the claim before the judgment was
granted. According to the applicant a dispute of fact pertaining to the authority of Chief
4 Smith v S [2011] ZASCA 15
5
Dhlamini was present on the particulars of claim.
[13] In opposing the application for leave to appeal the respondents contend that
ground 1 has no merit in that the applicant misinterprets Section 17(1 )(a)(ii) of the
Superior Courts Act, 2013 and that the mere existence of a historic divergence in case
law does not constitute a compelling reason for the appeal to be hears. It was
submitted that the applicant failed to demonstrate that this court was patently incorrect
or erred in law, by electing to apply the reason in Brown oppose to Du Toit.
[14) In respect of ground 2 the respondents' content equally has no merit as the
issue of authorization was dealt with. It is also submitted that the respondents did not
"place their claim in dispute" by disclosing the anticipated baseless defence of
authority to the court in its particular of claim.
[15] Having carefully considered the parties argument, I find myself in agreement
with the respondent in respect of the first ground. The fact that court in Du Tait adopted
a different position than the courts in Brown and Colrod does not establish a
compelling reason to allow an appeal. Departure from a position held by an earlier
court is not novel. Nor is it unheard of that a court after considering the specific facts
before it elected not to follow that found in an earlier case.
[16] The position in Colrod was subsequently followed and Du Tait departed from
in Nedcor Bank Ltd v Behardien 2000 (1) SA 307 (C)5 (Nedcor) where the court
held: "Co/rod Motors {Pty) Ltd v Bhula 1976 (3) SA 836 {W) is clear authority for the
proposition that a claim for a specific amount of money wrongfully and unlawfully
misappropriated by the defendant from the plaintiff is liquidated within the meaning of Rule 32
of the Uniform Rules of Court. I agree with the view expressed in that decision that the decision
in which a different view is expressed, ~namely that of Du Toil v Grob/er 1947 (3) SA 213
in which a different view is expressed, ~namely that of Du Toil v Grob/er 1947 (3) SA 213
(SWA), ought not to be followed, for the reasons given by E/off J, as he then was."
[17] This courts reliance on Brown is aligned with that of the courts in Colrod and
Nedcor. It held that the claim was a liquidated monetary claim. The amounts were
5
See also Van der Westhuizen NO v K!(~ynhans 1969 (3) SA 174 (0), and on appeal sub nomine
Kleynhans v Van der Westhuizen NO 1970 (1) SA 565 (0).
6
specifically pleaded together with the date on which it was alleged to have been
unlawfully withdrawn from the Trust account. The term 'debt or liquidated demand' can
be equated with a claim for a fixed, certain or ascertained amount or thing, and
includes a liquidated claim as known at common law.
[18] The second ground of appeal suffers a similar fate. No challenged served
before the default court. In default proceedings, the court is tasked with determining
whether the plaintiff is procedurally entitled to the order, in the absence of the claim
being defended. In action proceedings a dispute is foreseen and pleading such a
foreseen defence take the matter no further. It does not oust the default courts
authority to grant default judgment by its mere mention as contended for by the
applicant. Nor does it not trigger the default court to consider such a defence as a
possibility, in the absence of the claim being defended.
[19] The applicant has failed to demonstrate that the appeal has reasonable
prospect of success or that a compelling reason exists, as contemplated by Section
17 of the Superior Courts Act, 2013.
[20] It warrants mention that this application for leave to appeal was instituted
approximately three years after the delivery of the ex-tempore judgment. The applicant
accordingly sought condonation for the late filing of the application. The events that
unfolded following the delivery of the ex-tempore judgment, together with the steps
taken by the applicant to obtain the record of proceedings and to secure the
transcription of the ex-tempore judgment, are set out in the reconstructed extempore
judgment dated 13 August 2025. Upon circulation of the reconstructed ex tempore
judgment, the applicant acted promptly in filing its application for leave to appeal. The
application for condonation was not opposed, appropriately so in my view.
[21] In light of the prevailing circumstances the applicant is entitled to condonation
[21] In light of the prevailing circumstances the applicant is entitled to condonation
for the belated filing of the application for leave to appeal.
[22] I make the following order: -
1. The late filing of the application for leave to appeal is condoned.
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2. The application f~r leave to appeal is dismissed with costs.
Hearing date: 23 October 2025
Date of Judgment: 29 January 2026
FOR THE APPLICANT:
FOR THE RESPONDENT:
Adv DH Hinrichsen
Instructed by CAVANGH & RICHARDS INC
C/O PIETER SWANEPOEL ATTORNEYS
E-mail: stella@crlawchambers.co.za
stephan@vilsswan.co.za
Adv SM Van Vuren
Instructed by NEETHLING & VOSLOO
ATTORNEYS
E-mail: stephan@nvinc.co.za
8