About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 102
|
|
Minister of Police v Ngcingwane and Others (2021/26452) [2026] ZAGPJHC 102 (21 January 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Numbers:
2021/26452
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES / NO
(3)
REVISED: YES / NO
In
the matter between:
MINISTER
OF POLICE
Applicant
And
AKHONA
NTOMBIFUTHI NGCINGWANE
First
Respondent
TITSWALO
PORTIA KHOZA
Second
Respondent
MOKGADULLEN
SENYOLO
Third
Respondent
JUDGMENT
MZUZU, AJ
Introduction
[1]
This is an application for rescission of a default judgment in terms
of rule 42 (1)(a) of the Uniform Rules of Court.
The default judgment
that was granted on the 4 October 2023 by Judge Fisher.
[2]
The respondents oppose this application on the basis that the
application does not meet the requirements for granting
of a
rescission, further that the application is made in bad faith and is
being used as a vehicle to delay finalisation of the
matter.
Background
[3]
The
respondents served on the applicant a notice in terms of rule 35 (3)
and requested the applicant make better discovery. The
applicant did
not discover until an order to compel was made by Mudau J.
[1]
[4]
The applicant alleges that it complied with Mudau J’s order.
The respondents, however, were not satisfied with the
applicant’s
response and accordingly approached the court with an application to
strike out, this served before Fisher J.
Judge Fisher granted an
order finding that the applicant in the present application was in
default of the court order issued by
Mudau J on 25 April 2023.
Facts
[5]
The applicant submitted in summary the following:
When all the parties in
this action had filed and served upon each other their discovery
affidavits, the respondents brought an
unopposed rule 35(3)
application, the application was heard on the 25
th
of
April 2023, the order was granted and called on the applicant
(respondent then) to reply to the applicant rule 35(3) notice.
[6]
On the 1
st
of June 2023, the state attorney handling this
matter sent the respondents correspondence, confirming that he had
already previously
complied with their rule 35 (3) request.
[7]
The respondents replied to the letter on the 6
th
of June
2023, requesting the state attorney to send proof of service of same.
They did not, however, deny receipt of the rule 35
(3).
[8]
The applicant contends the reason why the respondents could not deny
having received the replying affidavit is because
they had already
received it on 10 March 2023. In any event, the applicant resent it
to them.
[9]
Despite the respondents’ initial denial of not receiving a
response to their rule 35(3) request, on 13 June 2023,
they
acknowledged receipt of same but advised that they would still be
persisting with the application to strike out.
[10]
Even if one were to assume in favour of the respondents, that they
had not received the replying affidavit prior to 7
June 2023, which
the applicant denies, it was nevertheless impermissible and wholly
irregular for the respondents to persist with
the application. This
is so because, in order to sustain an application to strike out, the
respondents were required to allege
non-compliance with their rule
35(3) request and the court order placing the applicant on terms. The
allegation could not be made,
as compliance had in fact occurred.
[11]
The respondents falsely averred that the applicant failed, neglected
and or refused to comply with the court order which
directed them to
provide requested information/documents…”. Nothing
whatsoever was said about the replying affidavit
in compliance with
the court order. Instead, the impression given was that the applicant
has to date, ignored the court order.
[12]
The state attorney entered its notice of intention to oppose and
briefed counsel to appear on the day the matter was
set down,
however, the applicant’s counsel did not appear in court.
[13]
The respondents thereafter proceeded in the absence of counsel for
the state attorney, without collegially informing
the state attorney
that there was no representative appearing on behalf of the
applicant.
[14]
Therefore, the court order placing the applicant in default of Mudau
J’s order was, with respect, erroneously sought
and granted.
The court was unaware that the respondents’ rule 35(3) request;
as well as Mudau J’s order had already
been complied with, as
implied above.
Respondents’
version in summary
[15]
The respondents’ version is this: they served on the applicant
a notice in terms of rule 35(3) and requested the
applicant make
better discovery. The applicant ignored this notice until an order
compelling better discovery was made by Mudau
J.
[16]
That court order was served on the applicant by hand and by email.
Following the applicant’s failure to comply
with the order
issued by Mudau J, the respondents approached the court for an order
striking out the applicant’s defence
in terms of the applicable
directives.
[17]
The application to strike out and its notice of set-down were served
on applicant.
[18]
The court order striking out the applicant’s defence was served
on the applicant. No steps were taken by the applicant
in response
thereto.
[19]
On 27 June 2024, the respondents instituted default judgment
proceedings arising from the order by Fisher J dated 4 October
2023.
This application was set down for hearing on 25 November 2024 but was
removed from the roll at the request of the applicant
after it
indicated that there were intentions to settle the matter out of
court.
[20]
The applicant failed to settle the matter and as a result, the
respondents proceeded with default judgement.
[21]
On 21 February 2025, the applicant was served with a notice of
set-down of the default judgment application. The matter
was set down
for hearing on 3 April 2025. The applicant thereafter launched the
present application, which had the effect of delaying
the
finalisation of the matter.
[22]
The applicant has not provided the court with evidence in support of
common-law rescission beyond what is pleaded.
[23]
The issue for determination therefore is whether the applicant has
made out a case for rescission.
Legal
Framework and Analysis of the Evidence
[24]
It is trite law that in determining the case for rescission, two
elements need to be proven:
a.
The party seeking the relief must present a
reasonable and acceptable explanation for his default; and
b.
On
the merits, such party has a bona fide defence which,
prima
facie
carries some prospects of success.
[2]
[25]
Rule 42 is
confined to the rescission of an order erroneously sought or
erroneously granted in the absence of a party affected thereby.
[3]
[26]
Regarding
what “an order erroneously sought” relates to, the court
in
Freedom
Stationery Pty Ltd and others v Hassam and others,
[4]
approved its earlier decision in
Lodhi
2 Properties Investments CC and another v Bondev Developments Pty
Ltd
[5]
where it was explained thus:
“
As, the phrase
‘erroneously granted’ relates to the procedure followed
to obtain the judgment in the absence of another
party and not the
existence of a defence to the claim…”.
[6]
[27]
In
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 and Others,
[7]
the apex court explained that ultimately, an applicant seeking to
argue that the judgment was granted erroneously must show that
the
judgment against which they seek a rescission was erroneously granted
because:
“
[t]here existed at
the time of its issue a fact of which the judge was unaware, which
would have precluded the granting of the judgment,
and which would
have induced the Judge, if aware of it, not to grant the
judgment”.
[8]
[28]
Once the requirements for rescission have been met, the court has
discretion to rescind its order.
[29]
The legal position is thus: an applicant seeking the rescission must
show that the judgment against which they seek a
rescission was
erroneously granted because there existed at the time of its issue, a
fact of which the judge was unaware which
would have precluded the
granting of the judgment, and which would have induced the judge, if
aware of it, not to grant the judgment.
[30]
It is trite
that when a rescission application is brought, the applicant must
meet the jurisdictional requirements for the rescission,
set out in
rule 42(1) (a) or the common law, before a court can exercise its
discretion to rescind an order.
[9]
[31]
Even where the specific prerequisites are satisfied, a court must
still be persuaded that it is in the interests of justice
to exercise
its discretion to entertain the matter.
[32]
The applicant relies, in the first instance, on rule 42,
alternatively, on the common law for rescission.
[33]
Rule 42 provides as follows:
“
(1) The court may,
in addition to any other powers it may have,
mero motu
or
upon the application of any party affected, rescind or vary:
(a)
An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
an
order or judgment in which there is an ambiguity, or a patent error
or omission, but only to the extent of
such ambiguity, error or
omission;
(c)
an
order or judgment granted as the result of a mistake common to the
parties.
(2) Any party desiring
any relief under this rule shall make application therefor upon
notice to all parties whose interests may
be affected by any
variation sought.
(3) The court shall not
make any order rescinding or varying any order or judgment unless
satisfied that all parties whose interests
may be affected have
notice of the order proposed.”
[34]
As already
noted above, even after the requirements for rescission have been
met, a court is merely endowed with a discretion to
rescind or not.
The precise wording 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.
[10]
This discretion must be exercised judicially.
[11]
[35]
It is trite law that an applicant who invokes this rule must show
that the order sought to be rescinded was erroneously
sought or
erroneously granted in his or her absence. Both grounds must be shown
to exist.
[36]
Ultimately, an applicant seeking rescission must show that the
judgment they seek to rescind was erroneously granted
because “there
existed at the time of its issue a fact of which the judge was
unaware, which would have precluded the granting
of the judgment and
which would have induced the Judge, if aware of it, not to grant the
judgment.”
[37]
In
Lodhi
2
Properties Investments CC v Bondev Developments (Pty) Ltd,
[12]
the Supreme Court of Appeal stated the following:
“
A court which
grants a judgment by default like the judgments we are presently
concerned with, does not grant the judgment on the
basis that the
defendant does not have a defence: it grants the judgment on the
basis that the defendant has been notified of the
plaintiff’s
claim as required by the rules, that the defendant, not having given
notice of an intention to defend, is not
defending the matter and the
plaintiff is in terms of the rules entitled to the order sought. The
existence or non-existence of
a defence on the merits is an
irrelevant consideration and, if subsequently disclosed, cannot
transform a validly obtained judgment
into an erroneous one
.”
[13]
[38]
Even if the applicant was entitled to rely, in a rescission
application, on a defence not pleaded in a plea (which, for
the
reasons stated above, it is not), and even if such reliance were
sufficient to satisfy the “error” requirement,
the
applicant would still be required to demonstrate that the court would
have reached a different decision had it been furnished
with one or
more of those defences at the time.
[39]
As stated
in
Chetty
:
[14]
“
[A] distinction is
drawn between ‘the rescission of default judgment, which had
been granted without going into the merits
of the dispute between the
parties, and the rescission of final and definitive judgments,
whether by default or not, after evidence
had been adduced on the
merits of the dispute’… In the case of a default
judgment granted without going into the merits
of the dispute between
the parties, the Court enjoyed the relatively wide powers of
rescission…”.
[15]
[40]
Based on all the submissions made, I find that the default judgment
by Fisher J was erroneously granted.
[41]
As for the costs of this application the fairest order in my view
would be that each party to pay its own costs.
Order
[42]
In the result, the following order is made
:
1. The application
for a rescission of a default judgment granted by Fisher J is granted
and set aside.
2. The applicant is
granted leave to defend the action.
3. Each party to
pay its own costs.
N MZUZU
Acting Judge of the High
Court,
Johannesburg
Appearances
For
the Applicant:
Instructed
by:
Z
Mokatsane
State
Attorney (Johannesburg)
Respondents:
Instructed
by:
HC
Makhubele
HC
Makhubele Inc
Date
of Hearing:
Date
of Judgment:
27
August 2025
21
January 2026
[1]
The order by Mudau J reads as follows:
The
respondent is hereby ordered in terms of rule 35(7) to reply to the
applicants rule 35(3) notice within 5 days from the date
of the
service of this order on the respondent attorneys of record.
[2]
See
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A) (“
Chetty
”).
[3]
See
Rule 42(1)(a).
[4]
[2018]
ZASCA 170; 2019 (4) SA 459 (SCA).
[5]
[2007]
ZASCA 85
; 2007 (6) SA (SCA) at para 25-27 (“
Lodhi
2
”).
[6]
Id at para 18.
[7]
[2021]
ZACC 28
;
2021 (11) BCLR 1263
(CC); 2021 JDR 2069.
[8]
Id at para 62.
[9]
Minister
of Correctional Services v Van Vuren
;
in re
Van
Vuren v Minister for Correctional Services
[2011] ZACC 9; 2011 (10) BCLR 1051 (CC); 2012 (1) SACR 103 (CC).
[10]
De
Wet v Western Bank Ltd
1979
(2) SA 1031
(A) (De Wet) at 1034F and
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills
(Cape)
[2003] ZASCA 36
;
2003 (6) SA 1
(SCA) at para 5, see also
Theron
N.O v United Democratic Front
(Western Cape Region)
1984 (2) SA 532
(c).
[11]
In
Chetty
above
fn 7 at 761D the court held as follows: “broadly speaking, the
exercise of a court’s discretion [is] influenced
by
considerations of fairness and justice, having regard to all the
facts and circumstances of the particular case”. One
of the
most important factors to be taken in to account in the exercise of
discretion, so the court in
Chetty
found at 760H and 761E, was whether the applicant has demonstrated
“a determined effort to lay his case before the court
and not
an intention to abandon it for it appears that [an applicant’s]
default was willful or due to gross negligence,
the court should not
come his assistance”. And as stated in
Naidoo
v Matlala
N.O
2012 (1) SA 143
(GNP) at para [4], a court will not exercise its
discretion in favour of a rescission application if undesirable
consequences
would follow.
[12]
Lodhi 2
above fn 10
.
[13]
Id
at para 27.
[14]
1985
(2) SA 756 (A).
[15]
Id 761G-I.