HIGH COURT OF SOUTH AFRlCA
(GAUTENG DIVISION , PRETORIA )
CASE NO: 012905/2024
(I) REPOR !'ABL E: NO
(2) OF LN'I ERE 'T TO OTII ER JllDGE S: '0
(3) REVI SED. {
SIGNATU RE
In the matter between:
THE MINISTER OF DEFENCE AND MILITARY
VETERANS
CHIEF OF THE SOUTH AFRICAN NATIONAL
DEFENCE FORCE
SECRETARY FOR DEFENCE
SOUTH AFRICAN NATIONAL DEFENCE FORCE:
CIDEF OF HUMAN RESOURCES
and
MOSES JABULANI ZWANE & 15 OTHERS
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
First lo Sixteenth
Respondents
2
Summary Rescission application based on Rule 42(J)(a) of the Uniform Rules
of Court - requirement that the order must have been granted in the
absence of a party - the applicants were at all relevant times
represented by counsel who acted on the instructions of the State
Attorney and made submissions to court - requirement that the
judgmen t granted in the absence of a party not met.
Rescission based on Rule 31(2)(b) of the Uniform Rules o/Court
condonation for the late delivery of rescission application
insufficiently motivated. In addition the applicants, although
represented, not deUvering any answering affidavits - reasons for
being in default of doing so inadequately and unsatisfactorily
explained - default wilful - no bona fide defence existing after
Military Dispensation reviewed and set aside in related proceedings
no reason to exercise discretion in favour of the applicants.
Summary of facts - respondents sought to benefit from the
implementation of a Military Dispensation/or certain professions -
applicants denying such entitlement but rather than delivering
opposing papers, opting to attempt to settle the matter. Despite
postponements, no settlement forthcoming, resulting in an order
granted in favour of the respondents. No basis to rescind the order
on the allegation that the attempts to settle were based on incorrect
legal advice. In any event, the dispensation has in the interim been
reviewed by another court and set aside. The "defence " based on
upholding the dispensation has become moot.
ORDER
3
The application for rescission is refused with costs, counsel's fees to
be taxed on scale C.
JUDGMENT
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties ' legal representatives by email and by uploading it
to the electronic file of this matter on Case lines. The date of handing-down is
deemed to be 4 March 2026.
DAVIS,J
Introduction
[1] The respondents in the rescission application were the applicants in the
main application and they are all members of the South African National Defence
Force (SANDF). On 7 February 2024 they launched an application for an order
to the effect that they benefit from a Military Dispensation (MD) implemented by
the Department of Defence (DoD) from 21 August 2021. The MD concerns an
occupation - specific dispensation , inter alia for engineers and related professions
in the DoD.
[2] The applicants in the rescission application were the respondents in the
main application. They are the Minister of Defence anct Military Veterans, the
4
Chief of the South African National Defence Force, the Secretary for Defence
and the South African National Defence Force: Chief of Human Resources .
(3] The applicants had delivered a notice of intention to oppose the main
application but they never delivered an answering affidavit.
[ 4] On 26 November 2024 this court granted an order against the current
applicants (then referred to as respondents) in the following terms:
" I. The First to Fourth Respondents are ordered to take all steps
required to staff all Applicants in terms of the Military Dispensation
(MD) for Engineers and related professions within 30 days from
date of this order and to report that same has been done in writing
to the Applicants ' attorneys within the same time frame;
2. The First to Fourth Respondents are ordered to ensure that all
Applicants are retrospectively paid technical allowances (or a
similar benefit in terms of the .MD) from 1 April 2023 until the date
of being fully incorporated and/or staffed in terms of the .MD in
accordance with paragraph J;
3. The First to Fourth Respondents are ordered to pay the costs of this
application on scale B, Jo;ntfy and severally, the one to pay the other
to be absolved".
[ 5] The implementation of the order was suspended in terms of Rule 45A by
Hassim J on 22 April 2025, pending the finalisation of the rescission application
under consideration.
5
[6] The applicants in the rescission application relied on the provisions of Rule
42(1 )(b) alternatively Rule 31 (1 )(b) for purposes of rescinding the order of 26
November 2024.
Summary of facts that led to the order sought to be rescinded
[7] The members of the SANDF claimed in the review application that the
enactment of the MD had the effect of removal of technical allowances which
they had previously received. Based on this and other allegations they are argued
that the MD was ultra vires and should be declared unlawful and invalid. All of
the applicants in the review application had their salaries ·effectively decreased
with thousands of rands per month, resulting in financial difficulties for each of
them.
[8] The respondents found their existing posts redefined without them being
allowed to migrate to posts provided for by the MD. They had previously
submitted grievances in terms of the Regulations promulgated in terms of the
South African Defence Act 1• The grievances, submitted by the members on
various dates have remained unresolved with the first of the grievances submitted
as long ago as 3 March 2023. In their application the respondents submitted that
they had, as far as possible, attempted to exhaust their internal remedies by way
of the grievances but their circumstances compelled them to launch the main
application. The main application was meticulously crafted and contained
extensive supporting documentation.
[9] After service of the main application a notice of intention to oppose was
delivered on 22 March 2024.
1 42 of 2002.
6
[10] When no answering affidavit was forthcoming, the matter was eventually
set down for hearing on 20 October 2024.
[ 11] The timeous notice of set down was met by a letter from the State Attorney
dated 18 October 2024. Therein the State Attorney submitted the following:
"We have noted that this matter is set down on the unopposed roll of
22 October 2024. We request that the matter be removed/ram the
roll as we are in the process of obtaining instructions for
settlement ".
The respondents' attorneys responded that they hold instructions to proceed on
20 October 2024.
[12] What happened thereafter was succinctly recorded by Hassim J in her
subsequent judgment regarding the suspension of the order, as follows:
"[12] On 20 October 2022 the DoD counsel applied for a
postponement of the application because the State Attorney
was awaiting approval to settlement the application. Davis J
postponed the application to 27 November 2024. However, by
the postponed date a settlement had not been approved. The
court was informed that the memorandum recommending a
settlement had not been approved by all the relevant officials
in the DoD and the State Attorney did not hold instructions to
settle the matter. From the Bar an application was made for
a postponement of the application pending the approval of a
settlement. Davis J refused the application and granted the
.... order".
7
[13] It appears from the affidavit delivered in support of the application for
suspension that the settlement proposals had been on the advice of counsel.
Hassim J summarised the run-up to the suspension application that served before
her, as follows:
"[ 13 J Counsel's advice came to the attention of the Chief HR after
the default order had been granted. He disagreed with
counsel 's interpretation of the DoD 's MD policy. According
to him counsel had not been given the great facts.
{I 4] On 7 January 2025 the DoD 's employees' attorney emailed a
letter to the State Attorney, delivered by hand to the DoD on
9 January 2025, demanding compliance with the default
order within IO days and threatened an application for
contempt of court in the event of non-compliance.
[15] On 12 January 2025, a day before the expiry of the 30 day '
period within which the DoD had to comply with the default
order, the DoD launched an application to rescind the default
order."
The belated reasons for opposition
[14] Referring yet again to the judgment ofHassim J, she summarised this issue
as follows:
''[17) The crux of the DoD's defence to the main application is that
the DoD employees, but for two, do not meet the qualification
criteria under the DoD 's MD for translation of their posts to
MD posts. Their posts can therefore not be translated to MD
posts and they are not entitled to be placed in MD posts under
8
the DoD 's MD. Furthermore, they do not meet the criteria for
the payment of a technical allowance.
[18] The termination of the technical allowance paid to the DoD
employees was not declared unlawful or reviewed and set
aside. Nor the implementation of the DoD 's MD dated 31
August 2021. Consequently, according to the DoD, the
termination of the technical allowance and the
implementation of the DoD 's MD dated 31 August 2021 is
valid and enforceable".
[15] Based on the aforestated facts, Hassim J found that there was a reasonable
prospect of success in the review application, which satisfied the requirements
for an application for the stay of execution of an order, which she accordingly
granted.
[16] Subsequent events have however overtaken the facts contained in the
summary provided by Hassim J. In a separate application launched in this court
by 21 other members of the SANDF in case no. 107699/2023, a judgment was
granted by Labuschagne J on 31 July 2025 whereby the MD was declared invalid
and set aside. The review and setting aside was however suspended pending
finalisation of a remittal of the decision to the Minister of Defence to " ...
determine pay, salaries and entitlements of Engineers and Technical staff and
compliance with statutory provisions governing a redetermination of pays,
salaries and benefits in accordance with the prescripts of Section 55 of the
Defence Act".
[17] In order not to prejudice the parties outside that application, Labuschagne
determined that members of the SANDF in the position of the applicants in that
application were entitled to remuneration in tenns of the Technical Competency
9
Based Incentive Pay (TCIP) System "as they were before the implementation of
the MD pending finalisation of the remittaI''. This accords in pari materia with
par 2 of the order in this matter.
[18] The applicants in the rescission application under consideration, being the
principal respondents in the application before Labuschagne J, had noted an
application for leave to appeal the review and setting aside of the MD. This was
the position when the rescission application was argued before me. Shortly
thereafter however, the respondents brought to my attention that the application
for leave to appeal has been withdrawn by notice, thereby leaving the declaration
of invalidity intact.
[19] It is against the above background that the applicants' application for
rescission must be adjudicated.
The grounds relied on by the applicants for rescission of the judgment
[20] The first hurdle which the applicants sought to cross was the fact that they
were, on their own version, out of time with their rescission application. In an
affidavit delivered in support of the separate application for condonation, the sum
total of their reasons for the delay was set out as foJlows:
"Circumstances giving rise to the application:
6. On 27 November 2024 the Honourable Court by an order of
the Honourable Lordship Davis granted an order in favour of
the Respondents.
7. The above Honourable Court 's rules provided that the
Department ought to have lodged its rescission application 20
days after becoming aware of the judgment.
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8. The time frame as stipulated in the above court's rules
regrettably presented itself during the court recess period.
The recess period commenced on 15 December and ended on
15 January 2025.
9. On 17 January 2025 the counsel had finalised drafting the
application for rescission on the date that the draft papers
were received by myself, I immediately forwarded a copy by
way of email to the Applicants' office for their inputs and
signature.
10. It was only on 19 January 2025 that the signed and
commissioned founding affidavit was received from the
Department of Defence.
11. The rescission applicahon was served on the Respondents '
attorneys on 20 January 2025.
12. It is respectfully submitted that the rescission application is
filed out of time not as a result of any wilful conduct on the
part of the Department or myself but it is attributed to the fact
that the period within which the rescission application ought
to have been brought fell within the recess period. Counsel
on brief was unfortunately on holiday during the recess
period. He however was able to cut short his vacation and
was able to draft the rescission papers shortly after the recess
period.
13. 1 pause to mention that the Department of Defence had every
intention or pursuing the rescission application ... ".
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[21] The reference to the recess period might be a reference to dies non as
contemplated in Rule 19(1) in respect of actions. It could not refer to the courts'
actual recess period. Even if the refence to recess periods is taken to be reference
to court directives, there was no explanation why, if the applicants had already
on 27 November 2024 contemplated a possible rescission application, it had not
then already been launched. There is no reason why it could not have been served
together with the application for a stay. Be that as it may, there is also no
confirmatory affidavit by the counsel to whom reference was made of the
allegations regarding his absence on holiday. Most impo1tantly however, and
insofar as the applicants intended to rely on what they termed the "recess" period,
there is no explanation for the lapse oftime between the date of the order and the
commencement of that period on 15 December 2025.
[22] It is trite that, in order to obtain condonation for the late delivery of a
procedural step, a party has to take the court into its confidence and fully explain
the totality of the period for which condonation is sought. This was clearly not
done and the applicants ' application for condonation should fall at this hurdle.
[23] However , it is equally trite that good prospects on the merits of a matter
might excuse a party who has feeble grounds to otherwise obtain condonation.
[24] For purposes of evaluating this aspect I turn to the first ground relied on by
the applicants, that is their reliance on Rule 42( I )(a). This rule provides that a
court may " ... upon application of an affected party, rescind or vary ... an order
or judgment erroneously sought or erroneously granted in the absence of any
party affected thereby ... ". (my emphasis)
[25] Factually, the applicant~ were not absent when the order was granted. They
had obtained an opinion from counsel dated 18 October 2024 (which was annexed
had obtained an opinion from counsel dated 18 October 2024 (which was annexed
to the rescission application), based on which the State Attorney sent a letter
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referred to earlier indicating their knowledge of the hearing date. Thereafter ,
counsel appeared on 22 October 2024 on behalf of the applicants and requested a
postponement of the matter on the basis that it is being settled. The applicants
accept that a month 's indulgence was granted by the court for this purpose and in
their Heads of Argument they do not advance the proposition that they were
denied a hearing or that their application for a postponement was in order for
them to defend the matter or to deliver answering affidavits.
[26] In fact, under the heading ·'circumstances under which the order of Davis
Jwas granted'' , the position was sketched as follows:
"66.12
66.13
66.14
Following postponement of the matter and on 26
November 2024 the memorandum recommending
settlement was still not approved by all the relevant
authorities within the Department and more
importantly, the Chief Human Resource was at that
stage not aware of counsel 's opinion and the settlement
memorandum.
At the hearing of the matter on 26 November it was
brought under the attention of the presiding Judge that
the memorandum proposing settlement of the matter
was not signed by all relevant authorities and therefore
the State Attorney holds no instruction at that time to
settle the matter on the terms proposed.
More importantly, an attempt was made from the bar
by counsel on brief, to request further postponement of
the matter pending the approval of the settlement
me,norandum ... ". (again, my emphasis)
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[27] In order to deal with the question of whether the judgment was granted "in
the absence" of the applicants, they relied on the decision in Katritsis v De
Macedo2. In particular reliance was placed on a finding by Van Blerk .TA "after
having reviewed the old authorities" to the effect that ·'default" includes "a
failure to file necessary documents required by the rules in opposition to a claim,
the failure to appear when a case is called as well as the failure to attend court
during the hearing of the matter".
[28] It is immediately apparent that the last two failures discussed by the learned
Judge of Appeal are not applicable in the present case. Insofar as the applicants
attempt to rely on a failure to file the "necessary documents", namely the
answering affidavits, it is clear that since the date of their notice of opposition,
they had intentionally elected not to deliver answering affidavits but to settle the
matter, albeit on the advice of counsel. In their own Heads of Argument,
reference was made (in paragraph 75 thereof) to the principle that a court will not
come to the assistance of a defendant whose default was wilful or due to gross
negligence. Reference was made to Chetty v Law Society Transvaal3.
[29] It happens often that when a party seeks the indulgence of time to explore
settlement, that a court is amenable thereto. It also happens equally often that a
party seeking opportunity to settle can extend the time period granted for such an
indulgence beyond that which a court might deem fair and just when considering
the rights of the other party. This was such a case and when the indulgence was
no longer extended, it was done in the presence, and not absence of the applicants.
[30] It appears that the applicants have foreseen that they might not be able to
cross the hurdle of satisfying the requirements of Rule 42(l) (a) and in the
2 1996 (1) SA 613A.
3 1985 (2) SA 756A at p. 765 A - E.
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alternative relied on the provisions of Rule 31 (2)(b )4. In this regard they faced
the similar hurdle in that the order was not granted in their absence or without
their knowledge . The applicants sought to counter the failure to fulfil that
requirement, by attempting to rely on the argument that they had "sufficient
cause" or "good cause" to have the order rescinded. For purposes hereof the
applicants alleged that the advice of counsel to settle did not timeously come to
the attention of the Chief of Human Resources who "... upon receipt of the
settlement memorandum ... concluded that counsel 's legal opinion was premised
upon incorrect interpretation of the military dispensation pol icy and further that
the opinion was premised on incorrect facts. Consequently, the Chief Human
Resource declined to approve the settlement of the respondents' claim" (par. 83
of the applicants' Heads of Argument). There is no explanation given as to how
or why this conclusion had not been reached earlier but only after the judgment
had already been granted .
[31] The applicants also attempted to base the rejection of the opm1on of
counsel on an alleged misunderstanding of the MD. This is not entirely correct
nor is it fair to counsel who provided the opinion. The opinion referred to parallel
litigation , in particular adjudication of the grievance procedures of other members
of the SANDF in what was termed in the papers ·'the O' Sullivan matter". Cow1sel
had referred to the requirement of organs of State not to engage in frivolous
litigation and pointed out that in the O' Sullivan matter, the court had already
concluded that those applicants had a reasonable grounds of success in an
application for review of the MD. Counsel further pointed out that should those
facts or primafacie expression on the merits of a review application be brought
to this court 's attention , it might well result in punitive costs for the applicants.
to this court 's attention , it might well result in punitive costs for the applicants.
4 This rule contemplates the rescission of an order granted without the knowledge of a party.
15
These factors contributed to counsel advising the applicants to rather settle the
matter.
[32] The decision to forgo the delivery of answering affidavits was therefore
based on more than one consideration and was clearly consciously made. There
was therefore no "default" but a wilful choice of options. At the time when the
indulgence to settle was terminated, neither the applicants nor their counsel
applied for leave to belatedly deliver answering affidavits.
Mootness
[33] At the time when the rescission application was argued, the order by
Labuschagne J referred earlier whereby the MD had been set aside was suspended
by virtue of an application for leave to appeal, lodged by parties which included
the cUITent applicants.
[34] The above-mentioned suspension meant that the MD was at the time still
alive and notionally one could understand the applicants defending its
implementation as a basis for their defence to the review application. The
applicants went further to indicate how the specific members of the SANDF did
not qualify for the migration of their posts or the translation thereof into the MD.
They however wilfully failed in defending how salaries can be reduced by the
unilateral implementation of a policy. Be that as it may , that defensive position
fell away two days after the hearing of the rescission application by way of the
withdrawal of the application for leave to appeal on 7 November 2025. This was
done by the same applicants, astoundingly without any explanation.
Conclusion
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(35] I conclude that the applicants had not sufficiently and properly explained
the grounds upon which they should be granted condonation for the late delivery
of the application for rescission.
(36] Even if one were to excuse the applicants for that failure and find that
ultimately the time delay was not that long or could be excused, then the
applicants have not crossed the hurdle of the requirement of Rule 42(1)(a). The
simple fact of the matter is that the order was not granted in the absence of the
applicants and therefore they are not entitled to rely on that rule.
[37] Insofar as Rule 31 (2)(b) requires from an applicant in an application for
rescission to explain its failure to file necessary documents and to indicate that it
was not in wilful default, the facts are that the applicants have by conscious
decision decided not to oppose the application until after the order was granted.
They were therefore in wilful default and cannot rely on this sub-rule. The other
requirement in Rule 31(2)(b) namely that the applicants had to show good cause
has also not been met, particularly in view of the fact that the policy which was
initially sought to be defended, has now been set aside. I am of the view that this
is a factor which a court may lawfully take into account in exercising its
discretion. In this case the exercise of that discretion does not favour the
applicants.
[38] It is clear that, in similar fashion as in the O'Sullivan matter and in the
matter before Labuschagne J, that the applicants in the review application should,
pending the implementation of a new and lawfully compliant policy, be entitled
to be paid as they were before the abo11ed implementation of the MD.
[39] On a conspectus of all the above, I therefore conclude that the applicants
are not entitled to a rescission of the order of 26 November 2024.
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Costs
[40] I find no cogent reason to depart from the customary rule that costs should
follow the event. In the exercise of my discretion and in the circumstances of the
case) I determine that counsel's foes should be taxed at scale C.
Order
[41] Consequently I make the following order:
The application for rescission is refused with costs, counsel's fees to be
taxed on Scale C.
Date of Hearing: 5 November 2025
Judgment delivered: 4 March 2026
APPEARANCES:
For the Applicant:
Attorney for the Applicant:
For the Respondent:
Attorney for the Respondent:
Acting Dep
High Court,
AdvJ G
P retoria
uage president of the
uteng Division, Pretoria
he
Zanten Attorneys,