DEPARTMENT OF JUSTICE AND cmm1TUTIONAL DEVELDPMEIH
SPECIAL TRIBUNAL
CNR AMANDA AVENUE & RIFLE RANGE ROAD, OAKOfNf
,": i~~i
(r.-1~~ ,b
Sig_ni tu1eof
2026 -01- 12
C/A No: One
REGISTRAR
IN THE SPECIAL TRIBUNAL ESTABLISHED IN TERMS OF SECTION 2(1) OF
THE SPECIAL INVESTIGATING UNIT AND
SPECIAL TRIBUNALS ACT 74 OF 1996
(REPUBLIC OF SOUTH AFRICA)
CASE NO: WC0 l/2021
In the application between :
BABALWAMAGODA Applicant
and
SPECIAL INVESTIGATING UNIT Respondent
Jnre:
THE SPECIAL INVESTIGATING UNIT Plaintiff
and
BIG FIVE FARMING CO-OPERTATIVE LIMITED 3rd Defendan t
WEZIWE LYNETTE DLWENGU 2nd Defendant
:MPHOETH ELMALAOGA 3rd Defendant
1
MONELO GEORGE BONGO
VUYANI EDMUND VANYAZA
MANDULELI MZAYIYA
BABALWA MAGODA
MASHUDU JEANETH TSATSAWANE
MINISTER OF AGRICULTURE,
DEVELOPMENT AND REFORM
RURAL
THE GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL
MARTIN SAMBO
4th Defendant
5th Defendant
6°1 Defendant
7th Defendant
8th Defendant
9th Defendant
10th Defendant
11 TH Defendant
JUDGMENT ON THE RESCISSION OF JUDGMENT APPLICATION
Introduction
[ 1] The applicant is Ms Babalwa Magoda, the seventh defendant in action
proceedings instituted by the Special Investigation Unit (SIU). On 30 November 2022
judgment by default was granted against her in respect of claims B, C, D, E together
with interest. In respect of claim F on order was granted to set aside a settlement
agreement concluded at the General Public Service Sectoral Bargaining Council in a
labour related matter where the applicant's employment was reinstated by agreement.
She seeks an order that the judgment be rescinded in respect of those order made against
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her and that she be afforded twenty days to file her plea. The SIU opposes the rescission
application.
[2] The default judgment was granted in respect of four of the six claims against the
applicant jointly and severally with others being Claim B R45 million, Claim C
Rl37 139.79, Claim D R2 609 380.96 and Claim E R4 431 078.87 together with interest
on these claims.
[3] She also seeks to set aside the order in terms of which the respondent obtained a
declarator which set aside the settlement agreement concluded between the Department
of Rural Development and Land Reform and the applicant. The default judgment was
predicated on finding the settlement agreement was unlawful and invalid.
[ 4] The applicant contends that her application is bona fide and that she has met the
requirements whilst the respondent contends for the contrary.
Issues for determination
[5] It is necessary for the applicant to establish a number of facts on the available
evidential material.
5 .1 Good or sufficient cause to grant the rescission of the relevant orders.
5.2 A reasonable explanation for the default an unsatisfactory explanation
could be compensated by good prospects of success.
5 .3 Whether the applicant has a bona fide defence with prospects of success.
5.4 Whether the existence of wilful default is an absolute bar in an application
for rescission and whether it is necessary to consider various criteria
conjointly. Whether the enquiry is a simple one to punish or not to penalise
the litigant.
5.5 There is a further consideration and that is whether the judgment is
appealable. 1
1 Pitelli v Everton Gardens Projects CC 20 IO (5) SA I 71 (SCA)
3
The applicant's submissions.
[6] The applicant contends that her erstwhile attorney of record took advice from
counsel not to file a plea after having been served with the notice of bar. Instead counsel
advised that the jurisdiction of the Special Tribunal should be challenged by way of
review application in the High Court. She was advised that the challenge for lack of
jurisdiction of the Special Tribunal would be a better route to follow and if successful
would not necessitate an application to uplift the bar and file a plea.
[7] Quite clearly, she was ill advised. She asserts, however, that she was completely
reliant on the advice of her attorneys and legal team. The advice to bring a review
application in the High Court does corroborate her version on the advice she received,
in that a review application was filed in the High Court on 3 August 2022. She was
advised that all proceedings in the Special Tribunal would be stayed and if she was to be
successful in the High Court all the proceedings before the Special Tribunal would be
set aside.
[8] The President of the Special Tribunal found that the matters before the Special
Tribunal continued despite the High Court proceedings. The applicant was given an
opportunity to set aside the Bar and file her plea. The applicant was given an opportunity
to file an application for the upliftment of the bar after the case management meeting
which was held on 12 September 2022. Such application was not filed by the applicant,
again on legal representatives advice. The applicant's legal representatives emailed an
exception to the respondent's attorney. Whatsupp correspondence between the applicant
and her attorney show unequivocally that she was told she did not understand legal
procedure and that she was to leave matters in their hands.
[9] The respondent contends that she knew about the default judgment and is
criticised for relying on the advice of her erstwhile attorney. Her legal representatives
criticised for relying on the advice of her erstwhile attorney. Her legal representatives
also advised that there would be an opportunity to approach the Constitutional Court.
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[10) During all this process the applicant also faced dismissal from the Department,
her employer. After realizing that her legal matters were not being progressed the
applicant changed her legal team on 30 July 2024. There was no progress in the review
application in the High Court. Her current attorneys advised that the court review
application did not supersede the default judgment granted against her in the Special
Tribunal and she would have to proceed with this recession application. This advice she
obtained on 5 March 2025 when she consulted with her current attorney on the review
matter. As stated she had up to that point laboured under the impression that the High
Court review application would be able to set aside the default judgment.
[11) The.applicant brings the application in terms of the common law and asserts that
she has provided a reasonable explanation for the default, she has a bona fide defence
and that she asks the Special Tribunal to exercise a wide discretion and to grant the
recession. She also contends that she has good prospects of success. She asserts that as
chief director in the Department of Agriculture, Rural Development and Reform (the
Department), her duties did not include the acquisition of properties and appointment of
beneficiaries to those properties. This is done by the Department National Land and
Recapitalization control committee on the recommendation of the District and Provincial
land committees. Accordingly, she states she did cannot be held liable for the decisions
made.
[12] All she did was to conclude the first caretaker agreement with the third defendant,
Big Five Farming Cooperative Ltd, on behalf of the Department in order to safeguard
the property while the selection of beneficiaries was still underway. The particulars of
claim describe that a caretaker agreement makes provision for the appointment of a
person, organisation or NPO who would be responsible for looking after the farm
person, organisation or NPO who would be responsible for looking after the farm
acquired by the Department before the beneficiaries are identified. She describes that
this policy was in accordance with the Department' s proactive land and acquisition
strategy. Caretaker agreements were entered into before the land was actually
transferred. She did not enter into subsequent caretaker agreements. The Department
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entered into those agreements. When the subsequent caretaker agreements were entered
into she was no longer in the Provincial Department but in the National Department .
[13] She also points out that it was the Department that approved the operational
funding ofR7 090 021 .04. She was dismissed in 2017 accordingly the causes of action
pleaded in claims A, B and C are defective, based on the fact that she was not involved
in the acquisition of the property and the selection of Big Five as a beneficiary.
[ 14] The applicant submits that the respondent instituted action against her, despite the
fact that after challenging her dismissal, her employment was reinstated.
Notwithstanding the respondent pursued claim D (the Nexus Forensic Investigation
which recommended her dismissal) when she had successfully challenged her dismissal.
It also bears mention that counsel for the applicant addressed the court on an exception
at the case management hearing. On 6 January 2023 the applicant received a letter from
the Direct General to inform her that the default judgment had been granted and that her
employment had ended. On 24 January 2023 the applicant instituted urgent proceedings
in the High Court to suspend the operation and execution of the default judgment ,
pending. On 14 March 2024 a warrant of execution was executed against the applicant's
pension. On 31 May 2024 the High Court issued an order staying the warrant of
execution pending the determination of the review application.
[ 15] The applicant argues that the Special Tribunal did not have the jurisdiction to set
aside a settlement agreement entered into between herself and the respondent. This had
to be done in the Labour Court. She denies the assertion by the respondent that the
settlement agreement was not properly concluded. She points out that the Director
General sanctioned her reinstatement as well as the payment of her back pay.
The respondent's submissions
The respondent's submissions
[16] It is the respondent's case that the default judgment was not granted in the
applicant's absence. She was not precluded from defending the action. Instead she
elected to be absent. The respondent contends that she was afforded
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correct judicial process and she failed to comply with the directives of the Special
Tribunal.
[ 17] The respondent submits she has not given a reasonable explanation for her
rescission application. She has failed to set out a bonafide defence to the claims on which
default judgment was granted. The respondent contends that the Special Tribunal rules
do not expressly provide for rescission of judgements granted by the Tribunal and no
submission is made as to why the tribunal should grant at rescission. The respondent
also disputes her reliance on the common law since everything was done with her being
fully aware of the procedure.2 Justus error was only available in rare circumstances.
[ 18] The respondent contends that it must be in the interest of justice for a court to
exercise its discretion to entertain the matter as in the matter of Zuma 3• The explanation
is not reasonable the application is not made bona fide defense to the plaintiffs claim of
success see: Colyn4. Both requirements must be met.
[ 19] On the facts the respondent also points out that she was late in entering an
appearance to defend. She did not comply, and she was ipso facto barred on 29 July
2022. It was only seven months later she instituted the application proceedings in the
High Court. SIU brought an application for default judgment against her a case
management meeting was held from 12 September 2022 and the applicant was
represented by attorneys and counsel at the case management meeting. The President of
the Special Tribunal directed that the default judgment was not suspended and that the
applicant had to bring an application for the upliftment of the Bar by 26 September 2022
and deliver her answering affidavit in the default judgment application by 21 October
2022. The respondent emphasises that on 12 September 2022, the applicant had
knowledge of the action proceedings she knew she had been barred, she knew that the
Special Tribunal President had directed that the review application did not have the effect
Special Tribunal President had directed that the review application did not have the effect
2 Swadif(Pty) L1dv Dyke NO 1978 (]) SA 928 (A) at 939D-F
3 Zuma V Secretary of the Judicial Commission of enquiry into Allegations of State Capture, Corruption and Fraud in the
Public Sector including organs of State and Others 2021 (11) BCLR 1263 (CC)
4 Colyn v Tiger Foods Industries Ila Meadow Feed Mills (Cape) 2003 SAi SCA at 9C
7
of staying the proceedings and notwithstanding the applicant did not comply. On 28
November 2022 the applicant's attorney raised an objection.
[20] The President of the Tribunal expressed her deep concern about the manner in
which the applicant was being dealt with. Counsel excused themselves and the default
judgment proceeded. The matter was set down and default judgment was granted on 30
November and this order was circulated on 15 December 2022.
[21] It is the respondent's case that the applicant knew by 11 January 2023 that default
judgment had been granted. The applicant's attorneys launched an urgent application in
the High Court to stay the process and on 15 February 2023 the first urgent suspension
application was heard and struck from the roll for lack of urgency. On 5 October 2023
warrants were issued by the SIU against the applicant. There was a return of non-service
and by 14 March 2024 a warrant of execution on the government employees' pension
fund in satisfaction of the default judgement order was granted.
[22] The matter came before the Bargaining Council and 13 May 2024. On 12 June
2024 the matter was set down for oral evidence. On 22 May 2024 the applicant instituted
urgent proceedings as she only became aware of the warrant of execution against her
pension benefits on 13 May 2024. The High Court issued a stay. On 16 March 2025 the
Bargaining Council ordered that the dismissal was fair. Proceedings were instituted in
the Labour Court in June 2025 challenging the Bargaining Council's order. A settlement
agreement was reached and she was reinstated.
Legal Principles
[23] Under the common law, an applicant is expected to show sufficient cause (also
equated to good cause) for rescission of judgment by giving a reasonable explanation of
the default of appearance, showing that the application was made bona fide and showing
that she had a bona fide defence to the plaintiffs claim which prima facie has some
prospect of success.
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[24] An acceptable explanation of default must be present with evidence of reasonable
prospects of success on the merits.12 A weak explanation can however be cancelled out
by the defendant being able to put up a bona fide defence which had not merely some
prospect, but a good prospect of success. As set out in Harris 5 Moseneke J set out the
basic principles relating to a rescission of a judgment as follows:
"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 the steps required
to avoid the default. Such an applicant must deliberately, being free to do so, fail or omit to take
the steps which would avoid the default and must appreciate the legal consequences of his or
her actions." In the matter of Colyn v Tiger Food Industries Ltd tla Meadow Feed Mills it was
held that the principles of presenting a reasonable and acceptable explanation for default, on the
merits of the case, an applicant for rescission has to show a bona fide defence which, prima
facie, carry some reasonable prospects of success. Sufficient cause must also be shown which
means that, there must a reasonable explanation for the default; the applicant must show that the
application was made bona fide; and the applicant must show he has a bona fide defence which
prima facie has some prospects of success. The Court however has a discretion, according to the
matter ofTshivhase Royal Council v Tshivhase and Cairns' Executors to grant the relief 21954
(2) SA 345 (A) at 352G 3Chetty v Law Society, Transvaal 1985 (2) 756 (A) at 765A-C 4Supra
52003 (6) SA 1 (SCA) at 9C 61992 (4) SA 852 (A) at 862 719 12 AD 181 at 186 sought that
must be exercised judicially after considerations of all relevant circumstances. Where an
applicant was in wilful default or acted grossly negligent, the Court should not come to his aide.
This is not however an essential element for a rescission application to be refused, but it is an
essential ingredient of good cause to be shown. Negligence and/or wilful default on the part of
the Applicant is a ground that the Court must consider in exercising its discretion in decidi ng
whether good cause had been shown."
[25) Moseneke J found that wilful default was not an complete bar to rescission of
judgment. It had to be considered contextually. This dicta by Moseneke J was not
departed from in the matter of Fick 6 in the Constitutional Court. Both majority and
minority judgments in Fick did not depart from this principle. In other words, the
absence of wilful default is not an express requirement but has an impact upon whether
or not the applicant has shown 'sufficient cause'. Even if wilful default has been
5 Harris v Absa Bank Lid t/a Volkskas 2006 (4) SA 527 (T)
6 Government of the Republic of Zimbabwe v Fick and Others 2013 (5) SA 325 (CC)
9
demonstrated it is not a bar to the applicant applying for rescission, it is but one factor
which the court considers in deciding whether or not good cause has been established.
Foot notes omitted
[26] An important consideration is whether the default is a deliberate one, i.e. when a
defendant with full knowledge of the set down and of the risks attendant on his default,
freely takes a decision to refrain from appearing. 'Wilful' connotes deliberateness in the
sense of knowledge of the action and of the consequences, i.e. its legal consequences
and a conscious and freely taken decision to refrain from giving notice of intention to
defend, whatever the motivation for this conduct might be. In the context of the evidence
presented by the applicant her reliance on her attorneys cannot be interpreted as her
being in wilful default.
[27] Maeujean tla Audio Video Agencies v Standard Bank of SA Ltd 7 dealt with the
grounds advanced where the applicant in that case far from lacking knowledge he had
consciously, deliberately and intentionally acquiesced in the grant of the default
judgment, and it mattered not: it was on clear authority that a defendant, who knew that
default judgment was to be taken against him and did not demur but allowed the plaintiff
to take his course, was presumed to be in wilful default and was not entitled to rescission
of the judgment. However, the factual background and reasons as presented by the
applicant in this case, do not amount to a cavalier disregard of the unfolding default
procedure as referred to in the Maeujean case.
[28] Moseneke Jin Harris went on to approve of the following principle:
"An application for rescission is never simply an enquiry whether or not to
penalise a party for failure to follow the rules and procedures laid down for civil
proceedings in our courts. The question is, rather, whether or not the explanation
for the default and any accompanying conduct by the defaulter, be it willful or
for the default and any accompanying conduct by the defaulter, be it willful or
negligent or otherwise, gives rise to the probable inference that there is no bona
fide defence and hence that the application for rescission is not bona fide. The
7 1994 (3)SA8 01 (C)
magistrate's discretion to rescind the judgments of his court is therefore primarily
designed to enable him to do justice between the parties . He should exercise that
discretion by balancing the interests of the parties . .. He should also do his best
to advance the good administration of justice . 8
Factual matrix.
[29] The applicant filed a notice of intention to defend the action on 1 December 2021.
The applicant's legal representatives elected not to file a plea but rather to challenge the
jurisdiction of the Special Tribunal in the case management meeting. When this
challenge was rejected, the representatives of the applicant advised her that the
jurisdiction of the Special Tribunal had to be challenged by way of review application
in the High Court which advice the applicant followed by instituting the review
application on 3 August 2022. The applicant also launched two urgent applications to
obtain relief pending finalisation of the review and it is therefore not unreasonable for
the applicant to conclude that her legal matters were under control and that she held the
bona fide belief that the review application would set aside the proceedings of the
Special Tribunal.
[30] The applicant states that in retrospect she was ill advised of the consequences of
not filing a plea in the action and instead filing a review in the High Court. The applicant
was specifically advised that the review application would suspend the proceedings in
the Special Tribunal and she accepted the advice that the correct procedure was to
continue with the review in the High Court.
[31] The applicant acted upon the advice of her legal representatives at the time, albeit
that the advice was wrong. It cannot be disputed that the applicant was specifically
advised to trust her legal team and not to take the matter into her own hands. Her conduct
throughout showed a singular intention to defend all claims against her even her
dismissal from her employment. All of this she actively pursued.
dismissal from her employment. All of this she actively pursued.
8 See Harris ibid para 11
11
[32] It can never be inferred or found that the applicant simply acquiesced. She was
determined to place her case before the courts, even incurring the costs of a High Court
suit on several occasions. She was ill advised and this must be considered in conjunction
with her conduct and her prospects of success.
[33] The applicant has several important defences to the claims. In particular the
appointment of beneficiaries to the acquired properties was done by the Department's
National Land and Recapitalisation Control Committee on the recommendation of the
District and Provincial land committees. The applicant did not appoint, nor did she
recommend Big Five as a beneficiary.
[34] The applicant only entered into the first caretaker agreement which is in
accordance with the Department's Proactive Land Acquisition Strategy. The fact that the
property was acquired prior to the identification of the beneficiary is provided for in the
relevant policies. The caretaker agreement was entered into for the period of 1
December 2012 to 31 May 2013. Further caretaker agreements were not concluded by
the applicant. This is undisputed. The respondent complains that Big Five refused to
hand the Farm over to the Department on the expiration of the caretaker agreement on
31 May 2015. Sadly, utter maladministration of the Farm followed. The claim for
damages flows from the damage from that maladministration. The respondent does not
explain what steps other senior officials in the Department took to limit its damages or
to remove Big Five from the Farm in the period of two years that it claims it received no
income.
[35] The applicant was no longer with the Provincial department when Big Five was
appointed on 25 July 2013. She was at the provincial department. When the Department
approved the operational funding of R7 090 021.04, the applicant had already been
dismissed. Further she may succeed in opposing her liability in relation to the
dismissed. Further she may succeed in opposing her liability in relation to the
replacement of the vineyards and equipment. It is unclear whether the applicant was
required to supervise the agricultural operations as well.
12
[36] The applicant has successfully challenged her dismissal and can therefore not be
held accountable for expenses which were incurred in dismissing her. This includes the
costs of counsel claimed for the pre-disciplinary investigation and the disciplinary
hearing. The applicant argues that the settlement agreement could in any event only have
been considered or set aside in terms of the Labour Relations Act as the agreement
pertained to a labour issue. The Constitutional Court in Ledla 9has found that the Special
Tribunal is not a court oflaw and accordingly the Special Tribunal does not have inherent
jurisdiction to set aside agreements concluded in another jurisdiction . It is possible that
the applicant has a good defence on this aspect. The claim for the expense of the Nexus
Forensic Report is claimed from the applicant. This too may be successfully defended at
a trial in due course.
[3 7] In the result I have serious concerns about the correctness of the various orders
granted by default. At this stage I do not have make definitive findings, nor do my prima
facie views bind another court or a judge sitting on the Special Tribunal panel, but I do
have to consider the prospects of success on some of the orders granted by default. These
include setting aside the settlement agreement. The Special Tribunal is not a court of
law.10 It therefore does not have inherent jurisdiction.
[38] There are also concerns about the applicant being liable for the operating costs
when that decision was not within the scope of her employment. There are also concerns
about the applicant being liable for concluding the caretaker agreements when she only
signed the first one and was entitled to do so despite the land not yet been transferred
into the names of the beneficiaries. This step was a permissible practice. Further after
the departure of the applicant, the Department renewed the care taker agreement. There
is also the question of damages in relation to the destroyed vineyard. It is unclear whether
is also the question of damages in relation to the destroyed vineyard. It is unclear whether
the applicant could be held liable if her role was not to supervise the agricultural
operations.
9 Led/a Struct11ral Development (Pty) Ltd and Olhers v Special Investigating Unit 2023 (2) SACR I (CC)
10 Ibid 9
13
[39] These concerns bring me to the question where the judgments by default were
granted incorrectly and therefore are they appealable. In the light of the Supreme Court
of Appeal authority in Pitelli the applicant cannot appeal those orders as the rescission
order has not be granted. So, there is an impasse. The question of the importance of the
prospects of success remain an important consideration .
Conclusion.
[ 40] In the light of all the available evidential material, and primarily her reliance on
her legal team at the time, it cannot be found that the applicant was in wilful default and
no intention to defend the action. It has not been shown that she had the necessary legal
knowledge to gainsay the advice of her legal team which included counsel. It is correct
that she was aware of the ruling by the President of the Special Tribunal that she was to
bring an application to uplift the bar. An important context in testing wilfulness on her
part must be balanced by the fact that there she launched several High Court applications.
She did not remain supine nor did she fail to contact her legal team to make enquiries .
The whatsupp messages she produced show her concerns.
[ 41] The respondent criticised the absence of an affidavit by her previous attorneys of
record. It would be a rare event that previous attorneys of record would admit their poor
legal advice. The claims against the applicant runs into millions of rand and it is unlikely
that the attorneys would open themselves up to a damages claim for poor legal advice.
[42] Her concerns are also indicative that she never accepted the consequences of the
judgment by default. The applicant has reasonable prospects of success in a trial in due
course.
Costs.
[43] The question of costs of this opposed application is not a simple matter. Adv
Williams SC and her junior on behalf of the respondent put a lot of work into defending
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the judgment the SIU obtained by default. The arguments were carefully crafted and well
researched.
[ 44] The same amount of care, preparation and research was also evident in the way
Adv Pretorius presented on behalf of the applicant. Albeit that I am going to grant a
rescission order, at the end of the day, it is the applicant who is seeking an indulgence,
and she has succeeded.
[ 45] The opposition to the rescission was not unreasonable. The issues are complex.
Our country is fraught with corruption and holding onto a judgment obtained by default
is not unreasonable. Sadly, an agricultural project that could have yielded such good
results and provided ample employment opportunities even for young people has been
lost.
[ 46] This is matter where I exercise my discretion that each party should pay their own
costs.
As a result, the following order is made:
I The judgment dated 30 November 2022 granted by default is hereby
rescinded.
2 The applicant must file her plea within 20 court days of this order.
3 Each party is to pay their own costs.
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llEPARTMENT OF JUSTICE ANO CONSTITUTIONAL OEVElOPMEffT
SPECIAL TRIBUNAL
Ct.R AMANDA AI/ENUl & RIFLE RANGE ROAD, OAJ([)£NE
2026 -01- 12
C/A No: One
JUDGE M VICTOR
PRESIDENT OF THE SPECIAL TRIBUNAL
Appearances:
For the Applicant: Adv L Pretorius
Instructed by: Ndebele Du Plessis Attorneys
For the First Respondent: Adv Williams SC assisted by Adv M Adhikari
Instructed by: State Attorneys, Cape Town
Date of hearing: 08 September 2025
Date of judgment: 12 January 2026
Mode of delivery
This judgment is handed down by email transmission to the parties' legal representatives,
uploading on Caselines and release to SAFLII and AFRICANLII. The time of delivery
is deemed to be 13H00.
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