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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
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 88913/2019
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 16/2/26
SIGNATURE
In the matter between:
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant
And
MARTHINUS WILLEM DE JAGER Respondent
Delivered: This judgement was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the Parties/their legal representatives by
email and by uploading it to the electronic file of this matter on CaseLines. The date for hand -
down is deemed to be 16 February 2026.
_________________________________________________________
JUDGMENT
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_________________________________________________________
MANAMELA AJ
Introduction:
[1.] This is an opposed application for rescission of a default judgment granted
against the applicant on 25 August 2023 . The applicant also seeks
condonation for the late filing of the Rescission Application , as well as costs
based on opposition.
[2.] The Notice to Oppose t he application for rescission of a default judgment
was filed on 3 June 2024.
[3.] The applicant is Tshwane Metropolitan Municipality, a municipality
established in terms of Section 14 of the Local Government Municipal
Structures Act 117 of 1998 , and the respondent is Martinus Willem De
Jager, who operates a farming business at Farm 594 Downbern JR, situated
at Number 2[...] R[...] Road, Downbern, Wallmansthal, Pretoria (the
immovable property”).
[4.] The respondent issued Summons against the applicant on 25 November
2019 alleged ly based on the applicant’s breach of duty of case for failure
emanating from failing to attend to significant water leak repairs on the
immovable property which erupted from the adjacent property, being Number
20 Riverside Road, Downbern, Wallmansthal, Pretoria , despite being made
aware of the leaks on several occasions, causing the agricultural site of the
respondent’s the immovable property to be flooded on the agricultural side,
resulting in drowning of plants and loss of revenue and income to the total
value of R1,689 853.00 (One Million Six Hundred and Eighty Nine Thousand
Eight Hundred and Fifty Three Rand).
[5.] The respondent apparently prepared a notice of intention to defend on or
about 27 January 2023 almost 8 months before default judgment was
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obtained, and served it on the applicant’s erstwhile attorneys, Macintosh
Cross And Farqharson Attorneys.
[6.] On 6 February 2023 , Macintosh Cross And Farqharson, Attorneys, served a
Notice of Withdrawal as attorneys of record.
[7.] Ordinarily, the applicant were to be served with a Notice of Bar, granting five
days’ notice to serve its Plea, if they failed to file a Plea timeously.
[8.] The only common cause facts between the parties are the citation of the
various parties and the jurisdiction of this court.
[9.] The applicant apparently became aware of the judgment on or about 25
March 2024 when the respondent as the judgment creditor sought to have a
notice of taxation served on the applicant’s legal department. The
administrative process of trying to locate the file, record processing between
various officials, the insurers and the file handler, the process of compiling
submission for appointment of attorneys took long within the applicant’s legal
department office leading to a delay of approximately 5 days in the launching
of the application. The last day for filing of the application for Default
Judgment was the 24th April 2024.
Issues of Determination
[10.] The main issue of determination is whether the relief sought by the applicant
is competent and whether the relief sought by the respondent is competent.
The Applicant’s case and grounds for rescission of judgment:
[11.] The application is brought in terms Rule 31(2)(b) and 42(1) of the Uniform
Rules of Court read with the common law . The application was electronically
served on the on 22 February 2024.
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[12.] The applicant filed an amended notice of motion, on 29 July 2024, in terms
of which the applicant incorporated the following relief:
“That the applicant be condones for the late filing oof the application for recission of
judgment of the order attached as annexure FA1 of the founding affidavit.”
[13.] The applicant’s case is that the responded obtained default judgment on the
basis that the applicant did not file a notice of intention to defend . The
applicant served a notice of intention to defend on 27 January 2023 . The
applicant attached a Notice to defend, which was transmitted via email
communication to the respondent’s erstwhile attorneys who were
responsible for the matter, and argued that the premise that there was no
Notice to Defend at the time when default judgment was sought was
incorrect.
[14.] The applicant never received any notice of bar from the respondent’s
attorneys of record. Instead a Notice of Withdrawal as attorneys of records,
was received from the respondent’s erstwhile attorneys, Macintosh Cross
And Farqharson, Attorneys.
[15.] The applicant assumes that, by proceeding with an application for Default
Judgment, the Defendant’s erstwhile attorneys failed to share the applicant’s
Notice of Intention to Defend and hence there was no Notice of Bar from the
respondent’s attorneys.
[16.] In so far as the merits of the case are concerned, the applicant contends that
the respondent lacks a bona defence in that in that the respondent’s case
does not disclose the type of crops that the responden t is harvesting in
winter and as such the applicant alleges that there is no connection between
the water leaks and the subsequent failure to harvest the crops.
[17.] The applicant further contents that it did not cause the respondent’s loss ,
and that there is no causal link between the water pipe burst and the
resultant failure to harvest the crops.
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The Respondents case for opposing rescission of judgment:
[18.] The respondent’s opposition to the applicant’s rescission of judgment is
includes two points in limine. The points in limine were that, in terms of: (i)
Rule 7 of the Uniform Rules of Court the deponent to the founding affidavit
lacked the authority in terms of the Rule 7 to institute the proceedings in the
absence of a Municipal Council resolution authorising him to do so; and (ii)
the applicant’s lack of condonation, in that, the applicant is required to bring
an Application for Condonation for non-compliance with the Uniform Rules of
Court before the Applicant’s application can be entertained.
[19.] The respondent contends that the applicant’s application does not comply
with the provisions of section 54A of the Municipal Systems Act, 32 of 2000,
in that the institution of the application for rescission of judgment was not
authorised by the Council resolution of the applicant.
[20.] The respondent argue that the applicant’s Notice of Intention to Defendant
was not filed in Court in terms of the Rules. The respondent argue that the
Notice to Defend was filed out of the prescribed timeframe and that it was
not file in the court file.
Legal Framework
[21.] The legal requirements for rescission of judgment in terms of Rule 42(1)(a)
are that -
“[1] The court may, in addition to any other power it may have, mero muto
or upon the application of any party affected rescind or vary;
(a) An order or judgement erroneously sought or erroneously granted in
the absence of any party affected thereby.”
[22.] The law governing rescission under Rule 42(1)(a) is trite. The applicant must
show that the default judgment or order had been erroneously sought or
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erroneously granted.1 It is based on two elements, namely, that the applicant
must set forth a reasonable explanation or show good cause for the default
and secondly that the applicant must demonstrate a bona fide defence(s).
[23.] Under this Rule 42(1)(a) a judgment may be rescinded if it was erroneously
sought or erroneously granted in the absence of the affected party. The
applicant must demonstrate that the judgment was granted due to a
procedural or factual error, such as the court not being aware of relevant
facts at the time of granting the judgment.
[24.] Rule 31(2)(b) provides that a judgment may be rescinded if the applicant
provides a reasonable explanation for their default, shows that the
application is bona fide and not intended to delay the proceedings, and
discloses a bona fide defence with prospects of success.
[25.] In terms of common law rescission may be granted if the applicant can show
"sufficient cause," which includes providing a reasonable explanation for the
default and demonstrating a bona fide defence.
[26.] In the matter of Chetty v Law Society 2, Miller JA clarified the test for
rescission that:
“The Appellant’s claim for rescission of judgment confirming the rule
nisi cannot be brought under Rule 31 (2) or Rule 42 (1), but must be
considered in terms of the common law, which empowers the Court to rescind
a judgment obtained on default of appearance, provided sufficient cause
therefore has been shown.
The term “sufficient cause” (or “good cause”) defies precise or
comprehensive definition, for many and various factors are required to b e
considered (See Cairn’s Executors v Gaarn 1912 AD 181 at 186 per I nnes
JA), but it is clear that in principle and in the long-standing practice of
1 Rossitter v Nedbank [2015] ZASCA 196 at 16, also see Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 446
(ECD), Elia and others v Absa Bank (A5083/2021; 19617/2017 [2023] ZAGPHJC 649
(ECD), Elia and others v Absa Bank (A5083/2021; 19617/2017 [2023] ZAGPHJC 649
2 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) 1985 (2) SA 746J to 765 C; (See De Wet and Others v
Western Bank 1979 (2) SA 1031 (A) at 1042 and Childerly Estate Stores v Standard Bank SA Ltd 1924 OPD
163.)
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our courts two essential elements “sufficient cause” “for rescission of a
judgment by default” are:
(i) that the party seeking relief must present a reasonable and acceptable
explanation for his default; and
(ii) that on the merits such party has a bona fide defence
which, prima facie, carries some prospect of success.3”
[27.] It is not sufficient if only one of these two requirements is met; for obvious
reasons a party showing no prospect of success on the merits will fail in an
application for rescission of a default judgment.
[28.] Silber v Ozen Wholesalers 4 remains authority for the proposition that an
applicant’s explanation must be sufficiently full to enable the court to
understand how the default came about and assess the applicant’s conduct.
[29.] It is settled law, that the procedure to be followed by a party disputing the
authority of a person to act on behalf of another party in litigation as in the
present application is set out in Rule 7. Rule 7(1) provides as follows:
“7 Power of Attorney (1) Subject to the provisions of subrules (2) and (3) a
power of attorney to act need not filed, but the authority of anyone acting on
behalf of a party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with the leave of the court on good cause
shown at any time before judgment, be disputed, whereafter such person may
no longer act unless he satisfied the court that he is authorised so to act, and
to enable him to do so the court may postpone the hearing of the action or
application.”
[30.] The purpose of the rule is, on the one hand, to avoid cluttering the pleadings
unnecessarily with resolutions and powers of attorneys. On the other hand, it
provides a safeguard to prevent a cited person from repudiating the process
and denying his or her authority for issuing the process.
3 PE Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4)
3 PE Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4)
SA 799 (A); Smith N O v Brummer N O and Another; Smith N O v Brummer 1954 (3) SA 352 (O) at
357-8).
4 1954 (2) SA 345 (A) at 353
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Analysis
Erroneously sought and granted default Judgment
[31.] Uniform Rule 42(1)(a) provides that a court may rescind or vary an order or
judgment erroneously sought or erroneously granted in the absence of a
party affected thereby. The principles governing rescission applications
under Rule 42(1)(a) were articulated in Colyn v Tiger Food Industries Ltd
2003 (6) SA 1 (SCA), which held that a judgment is erroneously granted if
there is a mistake in the proceedings, either on the part of the applicant for
default judgment or the court granting the judgment.
[32.] Generally a judgment is erroneously granted if there existed at the time of its
issue a fact of which the court was unaware, which would have precluded
the granting of the judgment and which would have induced the court, if
aware of it, not to grant the judgment.5
[33.] The main points to be considered by the court for Rule 42(2)(1)(a) are, that -
(a) The court examines whether the judgment was granted erroneously,
either due to a procedural mistake or the court not being aware of
material facts at the time of granting the judgment.
(b) If the application is brought under Rule 31(2)(b) or common law, the
applicant must explain why they failed to act or appear in court. The
explanation must show that the default was not wilful or due to gross
negligence.
5 Van Heerden v Bronkhorst (Case no 846/19) [2020] ZASCA 147 (13 November 2020) also see Nyingwa v
Moolman NO 1993 (2) SA 508 (TK) at 510D-G; Naidoo and Another v Matlala NO and Others 2012 (1)
SA 143 (GNP) at 153C; Rossitter v Nedbank Limited (unreported, SCA case number 96/2014 dated 1
December 2015) para 16; Thomani and Another v Sobeka NO and Others 2017 (1) SA 51 (GP) at
58C-E; Occupiers, Berea v DeWet NO and Another 2017 (5) SA 346 (CC) at 366E-367A.
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(c) The applicant must disclose a defence that is bona fide and has
prospects of success. This does not require proving the defence but
showing that it is not frivolous or vexatious.
(d) The court considers whether the application for rescission was brought
within the prescribed time frame or whether condonation for late filing is
warranted. The applicant must show that the delay was not excessive
and provide reasons for the delay.
(e) The court assesses whether granting rescission would cause prejudice to
the respondent and whether such prejudice can be remedied, for
example, through a costs order.
[34.] In Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) and Chetty v Law Society
of Transvaal 1985 (2) SA 756 (A), the courts established that an applicant for
rescission under Rule 31(2)(b) must provide a reasonable explanation for its
default, show that the application is bona fide, and disclose a bona fide
defence with prospects of success.
[35.] From the respondent’s answering affidavit, it is evident that t he respondent
concedes that the notice to defend was served to its erstwhile attorneys, but
the respondent contends that it was not filed with the court, as required by
the rules. This argument cannot stand when the current filing process is
done electronically , particularly when it is evident that the respondent’s
attorneys were the custodians of the CaseLines system and having been
duly served with the Notice to Defend.
[36.] The respondent counters that the applicant should have ensured its inclusion
in the court file by requesting access to CaseLines. I find this argument to
incorrect as the respondent had a duty to invite the applicant on CaseLines
upon receipt of its Notice to Defend. The court finds that the notice of
intention to defend was indeed served on the respondent’s attorneys, as
evidenced by the stamp on the document. The failure to upload the notice to
CaseLines does not negate the fact that the respondent was aware of the
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applicant’s intention to defend. The respondent’s attorneys had a duty to
ensure that all relevant documents were properly filed.
[37.] In light of Colyn v Tiger Food Industries Ltd , the judgment was granted
erroneously because the court was not made aware of the notice of intention
to defend. The applicant has therefore satisfied the requirements of Rule
42(1)(a). Regarding condonation, the court finds that the delay of five days is
not inordinate and has been adequately explained in the applicant’s founding
affidavit. The respondent has not demonstrated any prejudice arising from
the delay that cannot be remedied by an appropriate costs order.
[38.] On the issue of a bona fide defence, the applicant has raised a defence in its
papers, disputing the causal connection between the alleged water leaks
and the failure to harvest crops. While the respondent argues that this
defence lacks merit, the court is not required to assess the prospects of
success under Rule 42(1)(a).
Lack of authority under Rule 7 (first point in limine)
[39.] The respondent, argues that the deponent to the founding affidavit lacked
the authority in terms of the Rule 7 to institute the proceedings in the
absence of a Municipal Council resolution authorising him to do so . The
Applicant asserts that the Respondent's Rule 7 challenge to the authority of
the Applicant's attorneys is misplaced and irregular, as it was not filed within
the required 10-day period and without leave of the court.
[40.] The Court finds that the objection to the applicant’s authority was raised only
when the answering affidavit was filed, well outside the 10 -day period
contemplated in Rule 7(1). On the applicant’s version, which is not
meaningfully disputed, a Rule 7 challenge brought after the statutory period
may only be entertained with leave of the Court, supported by a substantive
application demonstrating good cause. No such application was sought or
application demonstrating good cause. No such application was sought or
placed before the Court. The authorities relied upon by the applican t reflect
that an informal or out -of-time challenge to authority is impermissible, and
that Rule 7 is the exclusive mechanism for disputing authority. In these
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circumstances, the respondent’s challenge was procedurally defective,
irregularly raised, and cannot be sustained. The Court accordingly finds that
the Rule 7 notice falls to be disregarded and bears no impact on the
determination of the rescission application.
Condonation (second point in limine)
[41.] The respondent’s point in limine premised on an alleged absence or
inadequacy of condonation cannot be sustained. Recent authority from the
Supreme Court of Appeal re iterates that condonation is not a mere formality
and turns on a holistic, interests -of-justice assessment that considers, inter
alia, the degree of lateness, the explanation for each period of delay, the
prejudice, and the prospects of success; importantly, a court retains a
discretion to grant condonation where the delay is neither inordinate nor
unexplained in material respects. 6 In this matter, the applicant’s delay was
brief, fully explained on the papers, and occasioned no demonstrable
prejudice to the respondent; moreover, the underlying application raises
issues with sufficient merit to warrant ventilation on the merits. Applying
these principles, the procedural attack must fail and condonation is granted.
The Constitutional Court has similarly cautioned that condonation “is not for
the mere asking” and requires a full, reasonable explanation linked to the
period of delay and the interests of justice: 7
6 Member of the Executive Council for Health, Gauteng v Motubatse & Another (182/2021) [2023]
ZASCA 162 (30 November 2023) (SCA, re -affirming condonation principles and the court’s
discretion); see also Commissioner for the South African Revenue Service v Virgin Mobile South
Africa (Pty) Ltd (1303/2023) [2025] ZASCA 77 (4 June 2025) (SCA, emphasising that non-compliance
and delay are assessed against explanation, prejudice and the interests of justice).
7 Ferris v FirstRand Bank Ltd [2013] ZACC 46; 2014 (3) SA 39 (CC) at paras 10–12
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Costs
[42.] It is trite that an order of costs lies in the discretion of the Court, to be
exercised judicially upon a consideration of all relevant factors. The primary
principle remains that costs follow the event, and a successful party should
ordinarily be awarded its costs unless there exist circumstances that justify a
departure from this rule. This approach reflects the notion that a litigant who
has been substantially successful should not be out of pocket for vindicating
or defending its rights.
[43.] In the present matter, the respondent’s opposition was marked by the raising
of points in limine that were either unsustainable in law or devoid of factual
foundation. These objections resulted in unnecessary procedural disputes
that protracted the litigation and burdened the Court with issues that ought
not to have been advanced. Where a party persists in technical or meritless
objections which do not meaningfully assist the resolution of the dispute, it is
appropriate that such conduct be reflected in the costs order.
[44.] Having assessed the totality of the circumstances including the nature of the
issues, the manner in which the litigation was conducted, and the relative
success of the parties, I am satisfied that the applicant is entitled to its costs.
[45.] The applicant was compelled to approach the Court to vindicate its position
in circumstances where the respondent’s procedural objections lacked
substance and contributed to the unnecessary escalation of costs. In these
circumstances, fairness dictates that the respondent should bear the costs
occasioned by its opposition. Where the conduct of a litigant demonstrates a
pattern of obstructive, dilatory, or untenable procedural manoeuvring, the
Court is justified in considering a punitive costs order. Althoug h such orders
are exceptional, they serve an important function in expressing the Court’s
disapproval of litigation conduct that unnecessarily consumes judicial
disapproval of litigation conduct that unnecessarily consumes judicial
resources. In the present matter, while the respondent’s conduct is deserving
of censure, I am satisfied that an award on the ordinary party -and-party
scale will adequately mark the Court’s displeasure.
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Conclusion:
[46.] Having considered the parties’ submissions, the applicable legal principles
governing rescission under Rules 31(2)(b) and 42(1)(a), together with the
issues raised in limine , the Court is satisfied that the applicant has
demonstrated that the default judgment was erroneously sought and
granted. The evidence establishes that a notice of intention to defend had
been properly served on the respondent’s erstwhile attorneys and that this
fact was not disclosed to the Court at the time judgment was taken. The
respondent’s remaining objections particularly the challenges directed at
condonation and the Rule 7 notice are without merit. The delay in bringing
the application was brief, fully explained, and occasioned no legally
cognisable prejudice. The Rule 7 objection, raised out of time and without
the requisite application for leave, is similarly unsustainable.
[47.] In light of these findings, the interests of justice require that the judgment be
rescinded and that the parties be restored to the procedural position they
occupied prior to the granting of the default judgment. The respondent’s
conduct in persisting with meritless technical objections has unnecessarily
protracted these proceedings, and an appropriate order of costs must reflect
this.
It is ordered that:-
(a) The point in limine relating to condonation is dismissed.
(b) The point in limine based on Rule 7 is dismissed.
(c) The applicant’s amendment to the notice of motion is granted.
(d) Condonation for the late filing of the rescission application is granted.
(e) The default judgment granted on 25 August 2023 is hereby rescinded in terms
of Rule 42(1)(a).
(f) The matter is restored to the roll as defended. The respondent shall , if so
advised, deliver a notice of bar in accordance with the Uniform Rules of Court,
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and thereafter the applicant shall deliver its plea within the prescribed time
periods.
(g) The respondent is ordered to pay the costs of this application on a party and
party scale.
_________________________
P N MANAMELA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 13 October 2025
Judgment delivered: 16 February 2026
APPEARANCES:
Counsel for the Applicant: R Maphutha
Attorneys for the Applicant: Lekhu Pilson Attorneys
Counsel for the Respondent:
Attorneys for the Respondent: Phosa Loots Attorneys