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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2024-103939
In the matter between:
IYH IMPORT EXPORT TRADING CC First Applicant
MUHAMED HUD PATEL Second Applicant
and
MASSUE (PTY) LTD First Respondent
CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY Second Respondent
In re:
MASSUE (PTY) LTD Applicant
and
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:
NO
(3) REVISED: NO
__________ _______________
DATE SIGNATURE
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IYH IMPORT EXPORT TRADING CC First Respondent
MUHAMED HUD PATEL Second Respondent
CITY OF JOHANNESBURG Third Respondent
METROPOLITAN MUNICIPALITY
Neutral Citation : Delivered: By transmission to the parties via email and
uploading onto Case Lines the Judgment is deemed to be delivered.
JUDGMENT
SENYATSI J
Introduction
[1] This is an application by the first and second applicants (collectively “the
applicants”) for the rescission of a default judgment granted by this court on
7 January 2025. In that judgment, the applicants were evict ed from the
commercial property situated at 4[ …] L[…] Street, M […] , Johannesburg
(“the property”), owned by the first respondent (“Massue”). The application
is opposed by Massue
Background
[2] The essential facts, which are largely common cause, are as follows:
(a) The applicants have been in occupation of the property since at
least February 2022 for commercial purposes.
(b) On or about 9 February 2022, the parties entered into a sale
agreement in respect of the property. A material term was that the
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purchase was conditional upon the first applicant securing a loan of
R2,600,000.00 within 75 days. Should it fail to do so, the
agreement would lapse, and the applicants were to vacate the
property within 60 days thereafter.
(c) The applicants failed to secure the loan. By letter dated 23 May
2022, Massue terminated the sale agreement and demanded that
the applicants vacate the property on or before 30 June 2022.
(d) The applicants did not vacate by 30 June 2022. It is common cause
that they have remained in occupation without the express or tacit
consent of Massue, without any lease agreement, and without any
other legal right to do so. Their occupation has been unlawful since
1 July 2022.
(e) Massue instituted eviction proceedings. The application and
relevant notices were served on the applicants, personally and via
email, in September and December 2024. The applicants did not
oppose the application. Consequently, on 7 January 2025, this
court granted a default eviction order against them.
(f) On 25 February 2025, the applicants launched this rescission
application, citing a non- existent “Rule 42(9)”. The application is
evidently brought under Rule 31(2)(b) of the Uniform Rules of
Court and/or the common law.
[3] The issue before this court is whether the applicants have made out a case
for rescission of the judgment.
Applicable Legal Principles
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[4] The legal principles governing rescission applications are well -established.
An applicant seeking rescission at common law or under Rule 31(2)(b) must
show “good cause”. This entails:
(a) A reasonable and acceptable explanation for the default;
(b) That the application is made bona fide and not merely to
delay the plaintiff’s claim; and
(c) The existence of a bona fide defence to the claim which,
prima facie, carries some prospect of success.1
[5] In terms of Rule 42(1)(a), a court may rescind a judgment “erroneously
sought or erroneously granted in the absence of any party affected thereby”.
The error must be patent from the record at the time the order was granted,
such as a procedural irregularity or the court being unaware of a fact which,
if known, would have precluded the granting of the order. (Colyn v Tiger
Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA)).
Evaluation
[6] The applicants’ case is fundamentally defective. They fail to meet any of the
requirements for rescission.
No Reasonable Explanation for Default
1 Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) at 476-477 ; Chetty v Law Society, Transvaal 1985 (2) SA 756
(A) at 767I-768A.
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[7] The applicants claim they were never served with the eviction application
and only became aware of the judgment on 7 February 2025. This contention
is irreconcilable with the evidence.
[8] The Sheriff’s Returns of Service, filed as part of the record, are prima facie
proof of the facts stated therein (Section 43(2) of the Superior Courts Act 10
of 2013). These returns clearly show that on 17 September 2024, the second
applicant accepted personal service of the application and also accepted
service on behalf of the first applicant at the property’s address.
[9] To impeach a Sheriff’s return, clear and satisfactory evidence is required
(Sussman & Co (Pty) Ltd v Schwarzer 1960 (3) SA 94 (OPD)). The
applicants provide no such evidence. Their mere denial, unsupported by any
corroborative facts, is insufficient.
[10] Furthermore, Massue’s attorneys sent the application and subsequent set -
down notices to the applicants via email in September and December 2024.
No explanation is given for why these emails were not received.
[11] The only reasonable inference is that the applicants, knowing they had no
defence to the eviction, elected not to oppose. Their default was, at best,
wilful. They have provided no reasonable explanation for it.
Lack of a Bona Fide Defence
[12] Even if the applicants had explained their default (which they have not), they
have not demonstrated a bona fide defence. Their own founding affidavit
and concessions in these proceedings are fatal.
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[13] They concede that Massue is the owner of the property. They concede that
the suspensive condition (securing a loan) was not met, causing the sale
agreement to lapse. They concede they were required to vacate by 30 June
2022 following the lapse of the agreement and Massue’s demand. They
concede there is no lease agreement between the parties.
[14] In the face of these concessions, the applicants are, on their own version, in
unlawful occupation. Their purported defence – that they are entitled to
remain until they find alternative business premises – is not a defence
recognised in law. Massue, as owner, has no obligation to house the
applicants’ business indefinitely while they seek alternative accommodation.
The applicants have been in unlawful occupation for nearly three years.
Their claim to a right of continued occupation is devoid of any legal merit
and cannot constitute a bona fide defence.
Lack of Bona Fides and Intent to Delay
[15] The circumstances of this application point overwhelmingly to a lack of
good faith and an intention to delay the execution of a valid court order.
[16] The applicants cited a non- existent rule, demonstrating a lack of care and
preparation. They have failed to file a replying affidavit in the rescission
proceedings, despite having been granted extensions. Their excuse that
counsel was busy with another trial is inadequate, especially given the
significant period of delay. The practical effect of launching and prolonging
this rescission application is that the eviction order is stayed, allowing the
applicants to remain in the property without any legal right and without
paying compensation. This tactical advantage underscores the dilatory
purpose of the application.
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[17] Granting rescission where there is no defence would be an exercise in
futility and would sanction an abuse of court process.2
Rule 42(1)(a)
[18] The applicants’ papers do not properly engage Rule 42(1)(a), and in any
event, no case under this rule is made out. The judgment was not
erroneously granted. Service was properly effected, as demonstrated by the
Sheriff’s returns. There was no procedural irregularity patent from the record
at the time the order was made. The applicants’ alleged lack of knowledge
stemmed from their own failure to engage with the served process, not from
an error by the court.
Conclusion
[19] In summary, the applicants have failed to provide a reasonable explanation
for their default; demonstrate a bona fide defence to the eviction claim and
show that this application is brought in good faith and not merely to delay
Massue from exercising its rights as owner.
[20] Consequently, there is no basis in common law, under Rule 31(2)(b), or
under Rule 42(1)(a) to rescind the judgment granted on 7 January 2025.
Order
2 Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352A-353H.
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[21] In the result, the following order is made:
(a) The application for the rescission of the judgment granted on 7
January 2025 is dismissed.
(b) The first and second applicants are ordered, jointly and severally,
the one paying the other to be absolved, to pay the costs of this
application on the scale as between attorney and client.
ML SENYATSI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
DATE APPLICATION HEARD: 02 FEBRUARY 2026
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DATE JUDGMENT HANDED DOWN: 04 FEBRUARY 2026
APPEARANCES
Counsel for the Applicant: ADV L RAMBAU
Instructed by: TENTE I. RASENYALO INC
Attorney for the Respondents: ADV Z HOOSEN
Instructed by: SLH INC