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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024-029910
In the matter between:
In the matter between:
DE MONTFORD CATHOLIC SCHOOL Applicant
and
SOUTH AFRICA SECURITISATION PROGRAMME First Respondent
(RF) LIMITED308. v
SUNLYN (PTY) LTD Second Respondent
(formerly known as Sunlyn Rental (Pty) Ltd)
SASFIN BANK LIMITED Third Respondent
JUDGMENT
WANLESS J
Introduction
[1] This is an application for the rescission of a default judgment (“the
judgment”) granted by this Court on 18 November 2024. De Montford
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
20 March 2026 _________________________
DATE SIGNATURE
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Catholic School (“the Applicant”), seeks to have the judgment set aside in
terms of Rule 42(1)(a) of the Uniform Rules of Court.
[2] The First Respondent is South Africa Securitisation Programme (RF)
Limited. The Second Respondent is Sunlyn (Pty) Ltd, formerly known as
Sunlyn Rental (Pty) Ltd. The Third Respondent is Sasfin Bank Limited.
The Respondents were the original P laintiffs in the action against the
Applicant and are the beneficiaries of the default judgment sought to be
rescinded. For ease of reference, they will be referred to collectively as
“the Respondents” herein.
[3] The application is opposed by the Respondents. At the heart of this
dispute are six rental agreements concluded between the Applicant and
the Respondents (or their predecessors) for the letting and hiring of
various items of equipment, including a telephone system, CCTV system
and other office equipment.
Background
[4] The Applicant and the Respondents entered into six written rental
agreements during 2022. In terms of these agreements, the Respondents
would let certain goods to the Applicant for a period of 60 months, with the
Applicant required to pay monthly instalments.
[5] On 11 July 2024, the Respondents issued summons against the
Applicant. The Applicant entered an appearance to defend on 16 August
2024. The Applicant's legal representative, Advocate MN Rambevha
(Advocate with Trust Account) , provided written consent on 14 August
2024 to receive all documents via email at r[…] .
[6] On 2 October 2024, the Respondents served a Notice of Bar up on the
Applicant via email at the address r[…] . This email address contained a
typographical error (the letter "t" was inserted after the letter "v"). Similarly,
on 6 November 2024, the Respondents served their application for
Default Judgment on the same incorrect email address.
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[7] On 18 November 2024, default judgment was granted against the
Applicant. The Applicant only became aware of this judgment on 10
March 2025 when the Sheriff attended at its premises to execute a
warrant of attachment.
[8] On 20 March 2025, the Applicant launched the present rescission
application. The Respondents filed their answering affidavit on 8 April
2025. Although no replying affidavit was uploaded to Caselines and was
neither filed nor served upon the Respondents , Counsel for the Applicant
handed up a hard copy thereof at the hearing. Counsel for the
Respondents did not object to this on the basis that the affidavit did not
really take the matter any further. This Court is in agreement with that
submission.
The facts
[9] The material facts in this matter which are either common cause or cannot
be seriously disputed by the parties, are set out hereunder.
[10] It is common cause that the email address to which the Respondents sent
the Notice of Bar and the Request for Default Judgment was incorrect.
The Applicant had consented to service at r[…] , but the Respondents
served documents at r[…] . At the hearing of the application, it was
confirmed that the Respondents have conceded this error.
[11] It is also common cause that the judgment was granted on 18 November
2024 in the absence of the Applicant and that the Applicant only became
aware of the judgment upon the Sheriff's attendance on 10 March 2025.
[12] The Applicant, through its manager, Morena Jonas Mokwena, alleges that
the equipment delivered by the Respondents was defective and not
properly installed. The Applicant claims to have sent several emails
complaining about these issues and ultimately terminated the agreements
on 13 September 2023.
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[13] The Respondents, through their deponent , Andries Vorster, deny that the
agreements included any maintenance obligations. They point to clause 6
of the agreements, which they contend relates solely to the rental of
goods and excludes maintenance obligations. The Respondents further
allege that the Applicant's complaints were directed to third- party service
providers and not to the Respondents themselves.
The Law
[14] Rule 42(1)(a) of the Uniform Rules of Court provides that the Court may
rescind or vary "an order or judgment erroneously sought or erroneously
granted in the absence of any party affected thereby."
[15] The requirements for rescission under this r ule are well -established. An
applicant must show, first, that the order was granted in its absence ;
second, that the order was erroneously sought or granted.
1 Once these
two requirements are met, the applicant is generally entitled to rescission
without the need to show good cause or a bona fide defence.
2
[16] However, as the Constitutional Court has made clear, the enquiry does
not end there. The word "may" in Rule 42 confers a discretion upon the
court. Even where an order was erroneously granted, the Court retains a
discretion to refuse rescission.3
[17] Moreover, where an applicant has elected to disclose its defence fully in
the rescission application, the Court is entitled to consider that defence. If
the purported defence is found to be hopeless or legally untenable, this
may weigh against the grant of rescission.
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The issues
1 Matseke v Maine (M198/2020) [2024] ZANWHC 13 (26 January 2024).
2 Bakoven Ltd v GJ Howes (Pty) Ltd 1992(2) SA 466 (E).
3 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture 2021 (11)
BCLR 1263 (CC).
4 Sheriff, Pretoria, North-East v Flink & Another [2005] 3 All SA 492 (T).
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[18] The Respondents have conceded that the Applicant has proven all the
requirements for rescission in terms of Rule 42(1)(a), save for one. This is
whether the Applicant has shown that it has prospects of success in the
main action should the judgment be rescinded.
[19] This is therefore the sole issue for determination by this Court. The crisp
question is whether the Applicant has demonstrated a defence to the
Respondents' claims that, if proved at trial, would have a reasonable
prospect of success.
The Applicant’s case
[20] The Applicant contends that the Respondents failed to fulfil their
obligations in terms of the rental agreements. The equipment delivered
was, according to the Applicant, defective and not properly installed. The
Applicant points to emails annexed to its founding affidavit which it claims
were sent to the Respondents or their service providers complaining
about these issues.
[21] The Applicant submits that it terminated all rental agreements on 13
September 2023 because of the Respondents' breach. At the time of
termination, the Applicant claims that all instalments due were paid in full.
[22] In its H eads of A rgument, the Applicant submits that it has a bona fide
defence as explained in Nedbank v Maredi ,
5 namely a defence set up
honestly which, if proved at trial, would constitute a defence to the
Respondents' claim.
The Respondents’ case
5 Nedbank v Maredi [2014] ZAGPPHC 43 at para 14.
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[23] The Respondents concede the procedural irregularity regarding service.
However, they argue that this is not the end of the enquiry. The Court
retains a discretion, and in exercising that discretion, must consider
whether the Applicant has disclosed a defence that has any reasonable
prospect of success.
[24] The Respondents submit that the Applicant's purported defence is
hopeless, misplaced and legally untenable. They point to the express
terms of the agreements, particularly clause 6, which they contend relates
solely to the rental of goods and excludes any maintenance obligations.
[25] The Respondents further submit that the emails relied upon by the
Applicant are not addressed to the Respondents at all. These emails are
directed to third-party service providers such as "t[…] " and "o[…] ". They
deal with complaints about internet connection and related services, not
with the letting and hiring of the goods by the Respondents to the
Applicant.
[26] In the Respondents' submission, what the Applicant cancelled on 13
September 2023 were service agreements with third parties, not the rental
agreements which form the subject matter of these proceedings. The
Applicant, submit the Respondents, has failed to appreciate this critical
distinction.
[27] The Respondents submit that t he Applicant cannot be permitted, through
an impermissible elevation of form over substance, to avoid its contractual
obligations on the basis of complaints directed to the wrong parties about
matters falling outside the scope of the rental agreements.
Discussion and analysis
[28] It is appropriate to commence the analysis by acknowledging the
Respondents' concession regarding the procedural defect. The Notice of
Bar and application for Default Judgment were indeed sent to an incorrect
email address. The Applicant did not receive these documents. The
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default judgment was granted in the Applicant's absence. On a purely
procedural level, the Applicant has established that the judgment was
erroneously granted.
[29] However, as already dealt with in this judgment , the enquiry cannot end
there. This Court retains a discretion. In exercising that discretion, it is
relevant to consider the defence that the Applicant has chosen to
disclose. The Applicant cannot have it both ways . It cannot disclose its
defence fully in an attempt to persuade the Court that there is a bona fide
dispute, yet simultaneously resist scrutiny of that defence on the basis
that such scrutiny is not required under Rule 42.
[30] When one scrutinises the Applicant's defence, fundamental problems
emerge. The Applicant's complaints, as reflected in the emails annexed to
its founding affidavit, are directed to third parties. Annexure AA7 is
addressed to "t[…] ". Annexure AA8 is addressed to "o[…] ". Annexure AA9
is addressed to "j […] ". None of these email addresses relate to the
Respondents.
[31] The Respondents are South Africa Securitisation Programme (RF)
Limited, Sunlyn (Pty) Ltd and Sasfin Bank Limited. There is no evidence
before this Court that any of the email addresses to which complaints
were directed belong to, or are associated with, the Respondents. The
Applicant has failed to establish that it ever communicated its complaints
to the parties with whom it contracted.
[32] More fundamentally, the Applicant has failed to engage with the terms of
the agreements themselves. The Respondents have pointed to clause 6
of the agreements, which they contend relates solely to the rental of
goods and excludes maintenance obligations. The Applicant, in its
founding affidavit , Heads of A rgument, and even in the Applicant’s
Replying Affidavit, has not addressed this clause or explained why,
despite its terms, the Respondents bore any maintenance obligations.
[33] The distinction drawn by the Respondents between rental agreements
[33] The distinction drawn by the Respondents between rental agreements
and service agreements is compelling. The Applicant's emails complain
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about internet connection and telephone coverage. These are services.
The agreements before this Court, however, are rental agreements for
equipment. The Applicant may well have had separate service
agreements with third- party providers. If so, its complaints should have
been directed to those providers. They cannot be directed to the
Respondents to avoid rental obligations.
[34] The Applicant's termination of the agreements on 13 September 2023 is
equally problematic. Even accepting that the Applicant sent the email
annexed as AA9, this email is addressed to "j […] ". Again, there is no
evidence that this email address belongs to any of the Respondents. The
Applicant cannot unilaterally terminate agreements with the Respondents
by sending emails to third parties.
[35] In WM Mentz & Seuns (Edms) Bpk v Katzake,
6 the court cautioned
against permitting purely technical defences to defeat claims. Whil st that
case dealt with summary judgment, the principle is of broader application.
Courts exist to decide real disputes between parties on their merits, not to
provide a forum for litigants to raise insubstantial technicalities to avoid
legitimate claims.
[36] The Applicant's defence, when properly analysed, is not merely
insubstantial. It is fundamentally misconceived. It proceeds on the
erroneous premise that complaints to third parties about services
constitute a defence to claims by different parties for rental of equipment.
This is not a defence that could succeed at trial, regardless of how it is
presented.
[37] The Applicant has placed significant reliance on the Constitutional Court's
decision in Zuma.
7 That case is distinguishable. In Zuma, the applicant
sought rescission of a judgment granted in proceedings where he was
legally represented but where procedural irregularities had occurred. The
Constitutional Court emphasised the importance of procedural fairness.
6 WM Mentz & Seuns (Edms) Bpk v Katzake 1969 (3) SA 306 (T) at 311.
7 Zuma supra.
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However, Zuma did not hold that procedural irregularities automatically
entitle an applicant to rescission regardless of the merits of any underlying
defence.
[38] The court in Zuma was alive to the distinction between a litigant who was
absent due to lack of notice and one who chose not to participate despite
awareness. In the present case, the Applicant participated by entering an
appearance to defend. It then failed to take any further steps. Its
explanation for this failure is the non- receipt of the Notice of Bar and
application for Default Judgment. Accepting that explanation, the question
remains: what would have happened had those documents been
received?
[39] Had the Applicant received the Notice of Bar, it would have been required
to file its P lea within five days. The Applicant's defence, as now
articulated, is that the equipment was defective and that it terminated the
agreements. This defence, for the reasons already given, is legally
untenable. It would not have prevented judgment . It would merely have
delayed it.
[40] The Applicant's reliance on Naidoo v Matlala
8 is similarly misplaced. In
that matter, the court held that a judgment is erroneously granted if there
existed a fact which, had it been known to the court, would have
precluded the granting of judgment. In the present case, the fact that was
not known to the court was that the Notice of Bar and application for
default judgment had not been properly served. However, this fact would
not have precluded the granting of judgment. It would merely have
required the Respondents to properly serve the Notice of Bar and the
aforesaid application. Once properly served, and in the absence of a
sustainable defence, judgment would inevitably follow.
[41] The Applicant submitted that the Respondents misled this Court by
representing that service had been effected. Whil st it is unfortunate that
the incorrect email address was used, this Court is not persuaded that this
8 2012 (1) SA 143 (GNP).
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was deliberate or intended to mislead. It was a typographical error, as the
Respondents have conceded. The question is whether this error,
regrettable as it is, should result in the rescission of a judgment where the
Applicant has no sustainable defence.
[42] The Applicant's R eplying Affidavit, which Counsel handed up at the
hearing, does not alter this conclusion. It adds nothing of substance to the
Applicant's case. It does not explain why complaints were directed to third
parties. It does not address clause 6 of the agreements. It does not
identify any evidence that the Respondents ever undertook maintenance
obligations. It does not take the matter further.
[43] In exercising its discretion, this Court must balance the procedural
irregularity against the substantive merits of the Applicant's defence. The
procedural irregularity is regrettable. The Respondents' attorneys ought to
have verified the email address before serving documents of such
importance. However, this irregularity cannot be permitted to override the
absence of any sustainable defence.
[44] To grant rescission in these circumstances would be to permit the
Applicant to avoid its contractual obligations on the basis of a defence that
has no reasonable prospect s of success. It would compel the
Respondents to prepare for trial and incur further costs, only to face a
defence that is legally untenable. This would not be just and equitable.
[45] The Applicant has not shown that it has a defence to the Respondents'
claims that, if proved at trial, would have a reasonable prospect of
success. The purported defence is fundamentally misconceived. It
confuses rental agreements with service agreements and complains to
the wrong parties about the wrong things.
Conclusion
[46] For all of these reasons, this Court concludes that the application for
rescission must be dismissed. The procedural irregularity, while present,
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does not outweigh the absence of any sustainable defence. To grant
rescission would be an injustice to the Respondents, who would be
compelled to litigate further against a defence that cannot succeed.
Costs
[47] There is no reason why costs should not follow the result. The
Respondents have been successful and are entitled to their costs. In the
exercise of this Court’s general discretion in respect of costs, this Court is
of the opinion that it would be just and equitable if the Applicant was
ordered to pay the costs of the application on the party and party scale
(Scale B).
Order
[48] This Court makes the following order:
1. The application for rescission of the default judgment granted on 18
November 2024, is dismissed.
2. The Applicant is ordered to pay the costs of the application, such costs to be
on a party and party scale (Scale B).
___________________________
BC WANLESS
JUDGE OF THE HIGH COURT
JOHANNESBURG
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Date of Hearing: 18 February 2026
Date of Judgment: 20 March 2026
Appearances
On behalf of the Applicant: Advocate M.N. Rambevha (Advocate with Trust
Account)
Instructed by: Makhode Attorneys
Email: rambevha.mn@gmail.com
On behalf of the Respondents: Advocate J.C. Viljoen
Instructed by: Stupel & Berman Inc.
Email: nadine@stupelberman.co.za