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2026
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[2026] ZAGPJHC 340
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Motsoeneng v Radebe (47699/2017) [2026] ZAGPJHC 340 (25 March 2026)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
Number:
47699/2017
(1)
REPORTABLE: NO
(2)
OF INTREST TO OTHER JUDGES: NO
(3)
REVISED: NO
PASEKA FRANS
MOTSOENENG
APPLICANT/DEFENDANT
AND
KHULU
PHILEMON RADEBE
RESPONDENT/ PLAINTIFF
JUDGMENT
MAKUME,
J
:
INTRODUCTION
1.
In this matter the
applicant seeks an order rescinding a money judgment obtained against
him by the respondent in this court on
14 March 2018.
2.
According to the
respondent he loaned an advanced to the applicant, an amount of
R600 000 during the year 2012, he attaches
a copy of his bank
statements that shows an amount of R600 000 being paid out of
his account.
3.
The loan agreement was
verbal in terms of which the applicant firstly undertook to repay
same by way of monthly instalments of R100 000.
It was
when the applicant failed in his undertaking that an agreement was
reached that he repays the loan at a rate of R10 000
per month.
The applicant commenced repayment at the rate of R10 000 per
month from August 2015 and suddenly stopped
in the year 2016.
4.
A letter of demand was
sent to him in June 2017 which he ignored, as a result summons for
payment of R470 000 was issued on
4 December 2017 and served on
his son on 19 February 2018 at his residence. No
appearance to defend was entered, as
a result default judgment was
granted against the applicant on 14 March 2018.
5.
On 25 June 2020 a
Section 65 notice was served on him by the sheriff of the court.
It was only on 9 February 2021 when the
applicant deposed to his
affidavit in support of his application for rescission of judgment,
this is a period of seven months from
the time that he came to know
about the judgment.
6.
It is trite law and
common cause that for an application for rescission of a judgment to
succeed the applicant must satisfy both
the requirements of a
reasonable explanation for default and a
bona
fide
defence
with prospects of success.
7.
In this matter the
applicant relies on the provisions of Rule 42(1)(a) of the Uniform
Rules of Court which provides as follows:
"The court may in
addition to any other powers it may have
mera
motu
or upon application of any party affected, rescind or
vary:
8.
An order or judgment
erroneously sought or erroneously granted in the absence of any party
affected thereby.”
BACKGROUND FACTS
9.
It is common cause that
applicant is a pastor of a church known as The Incredible Happenings
Ministry, he describes it as ‘my
church’, the respondent
and his wife were members of that church until a certain period which
will be dealt with later in
this judgment.
10.
In paragraph 37 of his
answering affidavit the respondent says that on 1 June 2012 he
concluded a verbal agreement with the applicant
in terms of which he
advanced and amount of R600 000 to the applicant which amount
the applicant undertook to repay at the
rate of R100 000 per
month with effect 1 July 2012.
11.
The respondent then
says that the applicant failed to make any payment, as a result
when he confronted him about the non-payment,
they both agreed to
amend the agreement that he repays the amount at the rate of R10 000
per month with effect, 4 August 2015.
It is not apparent as to
when exactly this new agreement was concluded, safe to say that it
was during 2015.
12.
The applicant indeed
commenced payments at the rate of R10 000 from 4 August 2015 and
stopped paying on 6 August 2016
having paid in total an amount
of R130 000 leaving a balance of R470 000.
13.
In paragraph 45 of his
answering affidavit the respondent says that at the end of January
2017 he sent a letter of demand to the
applicant demanding that the
applicant make payment of the balance of R470 000 within 14
days, it is common cause that no
payment was ever received
thereafter.
14.
Summons was issued in
December 2017 and served on the applicant’s son, the applicant
did not enter appearance to defend which
then led to an application
for default judgment which this court granted on 14 March 2018 in the
absence of the applicant for payment
of an amount of R470 000
plus interest and costs.
15.
During the year 2020
the respondent’s attorneys, Ms CF Van Coller issued a
Section 65(a)(1) notice on the applicant
which was served on him on
25 June 2020. On receipt of that note, the applicant instructed
attorneys Sibanda Nkosi to act
for him and they addressed a letter on
31 August 2020 to CF Van Coller and requested the latter to furnish
them with copies of
all pleadings in the matter which matter carried
case number 6749/2019 (magistrate’s court case).
16.
It is not apparent from
the papers before me as to when the attorney received the requested
documents, it was only on 9 February
2021 when the applicant served
and filed his application to rescind the default judgment dated
14 March 2018.
17.
On receipt of the
applicant the respondent’s attorneys requested indulgence which
was granted by the applicant’s attorneys
to file the answering
affidavit outside the stipulated period.
18.
The respondent’s
answering affidavit was filed and served on them during March 2021.
The applicant did not file any
reply thereto, the things were quiet
since then and there was no exchange of any pleadings.
19.
During November
2024 the respondent’s filed a supplementary answering affidavit
in which he raised the defence of superannuation
as a point
in
limine
and
applied that the applicant’s application be dismissed in that
it has taken the applicant three years since he filed his
application
and that he folded his arms and did nothing to prosecute the matter.
20.
The
applicant quickly filed an opposing affidavit opposing the
supplementary answering affidavit and raised a procedural issue that
there was no proper Notice of Motion seeking leave to file a further
affidavit. I do not deem it necessary to deal with the
dispute
in respect of this fourth affidavit and I agree with the applicant
that it is procedurally non-suited and is struck off
from the
record. The issue about superannuation is not dispositive of
the dispute in this application and was accordingly
unnecessary.
THE
APPLICANT’S CASE
21.
The
applicant’s case is made out in paragraphs 21 to 29 in which he
denies ever entering into an oral agreement of loan with
the
respondent, he made the point that respondent’s wife was the
treasurer in his church and that she and the respondent
were
responsible for his as well as the church’s financial affairs.
22.
He
says that the church was doing well financially and could never have
borrowed money from an individual. The relationship
between him
and the respondent and his wife ended in the year 2016 when he
noticed mismanagement of the church’s finances
by the
respondent and his wife.
a.
He
concludes at paragraph 36 by saying the following:
"I
maintain that I have never entered into any oral agreement with the
respondent nor has the respondent loaned me money.
Instead it
is the respondent and his spouse that owes my church all the monies
that they have appropriated from my church.”
23.
The
applicant does not say how much money was misappropriated by the
respondent from his church and what steps has he taken to recover
same.
RESPONDENT’S
CASE
24.
In
his answering affidavit, specifically in response to allegations by
the applicant denying the loan, the respondent sets out in
his
paragraphs 37 to 49 the terms of the agreement, he attaches a copy of
his bank statement showing an amount of R600 000
debited against
his account on 1 June 2012.He further details that due to the
applicant’s failure to make payment as agreed
they amended the
agreement to read that the applicant should repay the loan at the
rate of R10 000 per month, with effect
4 August 2015.
25.
At
paragraphs 42 and 43 the respondent attaches a copy of his bank
statement showing that the applicant commenced repayment at R10 000
per month from 4 August 2015 up until 6 October 2016. The bank
statement clearly indicates that the payments were received
from
Incredible Happenings.
26.
The
applicant did not file any replying affidavit, save for the answering
affidavit to the respondent’s defective supplementary
affidavit, he said nothing to refute what the respondent said in his
answering affidavit.
a.
Rule
6(5)(e) of the Uniform Rules read as follows:
"Within
10 days of the service upon him of the affidavit and documents
referred to in subparagraphs 1 of paragraph b of sub
rule 5 the
applicant may deliver a replying affidavit.”
27.
It
is trite law that the primary purpose of the replying affidavit is to
put up evidence which serves to refute the case made out
by the
respondent in the answering affidavit (see
Standard
Bank of South Africa Limited v Sewpersadh
2005 (4) SA 148
(C) at page 159).
28.
The
applicant by failing to file a reply to the respondent’s case
is fatal and leaves only the version of the respondent to
be
considered. His is a bare denial which is not sufficient to
refute the evidence set out by the respondent.
EVALUATION
OF THE APPLICANT’S CASE
29.
The
applicant seeks to rely on the provisions of Rule 42(1)(a) of
the Rules of Court for the rescission which took place in
his absence
and for that he needs to prove that the judgment was erroneously
sought and granted in his absence.
30.
I
accept that the applicant may not have received the summons that was
served on his son and therefore the judgment was granted
in his
absence, however he must place facts to prove the erroneous error in
the granting of the judgment, this he has failed to
do.
31.
The
question as to what constitutes an error for purposes of Rule 42 has
been the subject of a number of decided cases. The
rationale
seems to be that a judgment has been erroneously granted if there
existed at the time of its issue, the fact of which
the Judge was
unaware which would have precluded the granting of the judgment and
which would have induced a Judge, if aware of
it, not to grant the
judgment (see in this regard
Nyingwa
v Moolman N.O.
1993
(2) SA 508
(TKGD) at page 510).
32.
The
summons was served on the applicant’s son which service was in
accordance with the rules. It would have been prudent
in this
matter, in this application for the applicants to tell the court if
indeed he has a son who lived with him at his house
and if so, what
is his name and to further attach an affidavit from him saying what
he did with the summons. I can find no
error having been
committed by the Registrar who granted judgment in terms of rule
31(5).
33.
The
next issue is whether the applicant has set out a
bona
fide
or a triable issue, in this instance the applicant firstly denies
that he loaned any amount of money from the respondent, secondly
he
denies ever making the payments of R130 000 to the respondent
and lastly he says that if it is found that he indeed borrowed
money,
the R600 000 from the respondent, then such claim has prescribed
because the claim prescribed in June 2015 and yet
the respondent
issued summons in the year 2018, a period of 6 years later.
34.
In
argument the applicant abandoned the defence based on the National
Credit Act and based his whole defence on the concept of
prescription, I now turn to deal with that defence.
35.
The
applicant argues that if the court finds that there was indeed the
loan agreement concluded between the parties in June 2012,
then such
debt prescribed in June 2015 and that when the applicant commenced
making payment at the rate of R10 000 on 4 August
2015, it was
not an acknowledgement of that claim that had prescribed as according
to the applicant, a prescribed debt cannot be
revived by an
acknowledgement of liability.
36.
It
is trite law that a debt is extinguished after the lapse of the
prescribed period applicable to that debt and that such a debt
cannot
be revived by an acknowledgement of liability.
37.
In
this matter the respondent at paragraph 7 of the Particulars of Claim
says that the defendant failed to make payment of the monthly
instalments of R100 000, he continues to say that on 4 August
2015 he and the applicant agreed that the defendant would make
payment of monthly instalments at the rate of R10 000 with
effect to 4 August 2015.
38.
In
my view the applicant and the respondent entered into a new
contract. In the matter if
Lipschitz
v Dischamps Textiles, Gambit & Another
1978 (4) SA 427
(CPD) at page 430 F, Van Heerden J concluded as
follows:
"To
my mind the said anomaly does not detract from the clearly expressed
wording of section 10(1) that once the period provided
for has
lapsed, barring any delays or interruption, the debt is
extinguished. When this has occurred any subsidiary debt
that
which arose from such debt is also extinguished and it would appear
that once extinguished, the debt can no longer by acknowledgement
revive such debt
unless of course it is in the form of an
undertaking amounting to a new contract
.”
39.
The
applicant and respondent concluded a new contract on 4 August 2015
and when the respondent issued summons on 6 December 2017
that in
itself interrupted prescription, that commenced running only after
payment of that last instalment of R10 000 in October
2016.
40.
The
applicant breached the agreement that was concluded in August 2015,
not the 2012 agreement. When the applicant commenced
payment of
R10 000 in August 2015, it was in satisfaction of a new
agreement and was never meant to revive the 2012 agreement.
41.
What
is also obvious and proves a new agreement, there is sufficient proof
that the applicant utilising his own church’s funds,
made
payments totally R130 000 to the respondent, he does not deny
having made these payments.
42.
An
application for rescission of judgment must demonstrate a
bona
fide
defence or a triable issue, the applicant has failed to do so and
relies on a technical defence of prescription, he had no
bona
fide
defence and must accordingly fail.
43.
In
the result I make the following order.
ORDER
The
application for rescission of judgment is dismissed;
The
applicant is ordered to pay the respondent taxed party and party
costs on scale B.
MAKUME
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
Appearance
For
the Applicant:
Adv T Mathopo
Instructed
by:
Gogome Attorneys
For
Respondent:
Adv L Liebisch
Instructed
by:
Diemieniet Attorneys