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[2026] ZAGPJHC 342
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Bryte Insurance Company Limited v Mziki Transport Holding (Pty) Ltd and Another (2024/097437) [2026] ZAGPJHC 342 (26 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 2024/097437
(
1)
REPORTABLE:
YES/ NO
(2) OF
INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
In
the matter between:
BRYTE INSURANCE
COMPANY LIMITED
Applicant
(Registration Number:
1965/0067664/06)
and
MZIKI TRANSPORT
HOLDINGS (PTY) LTD
First Respondent
(Registration Number:
2003/029807/07)
LIAM ROYCE
N.O
Second Respondent
JUDGMENT
MEADEN
AJ
INTRODUCTION
[1]
This is an opposed application for
rescission of a default judgment (“the judgment” or “the
Order”) launched
by the Applicant – a short-term insurer
on 14 February 2025 and in terms of Rule 42(1)(a), alternatively;
Rule 31(5)(d) of
the Uniform Rules of Court regarding default
judgment granted against it and in favour of the First and Second
Respondents (Plaintiffs
in the main action) back on 25 November 2024.
[2]
The relief sought in this rescission
application includes:
[2.1] The
Applicant seeking to have the above judgment rescinded and set aside;
[2.2] the
Applicant seeking leave to file a plea or further step within 15 days
of this Order; and
[2.3] the
Applicant seeking an award as to costs against the Respondent in the
urgent application (part A) heard by
Wilson J on 16 February 2026 and
in this rescission application (part B).
[3]
It is common cause that this application
originates from the main action that was instituted by the First and
Second Respondents
against the Applicant following on the Applicant’s
repudiation of the short-term insurance claims lodged by the First
Respondent
with the Applicant.
[4]
This rescission application was preceded by
an urgent application resorted to by the Applicant and out of this
court back on 16
February 2025 and in which the Applicant was
successful in securing a stay on the enforcement of the writ of
execution by the Respondents
against the Applicant and pending the
Applicant’s pursuance of this rescission of judgment
application.
FACTUAL BACKGROUND
[5]
The applicant (Defendant in the main action
launched under the above case number) was the short-term insurer of
the First Respondent
– insured (First Plaintiff in the main
action) and the Second Respondent (Second Plaintiff in the main
action) being the
Business Rescue Practitioner appointed vis-à-vis
the First Respondent.
[6]
On or about 28 July 2023, a truck and
trailer of the First Respondent suffered fire related damage. Per
prayer 1 of the First Respondent’s
Particulars of Claim to its
Summons, the sum of R 1 691,300.00 (R 1 391,300 for the
truck and R 300,000.00 for the trailer)
was claimed in damages from
the Applicant. These claims were repudiated by the Applicant in
circumstances where it alleged that
the First Respondent had failed
to keep up to date with its monthly premium payment obligations and
further, short paid on monthly
short-term insurance premiums due in
favour of the Applicant.
[7]
Following on the above repudiation and an
unsuccessful complaint to the Short-Term Insurance Ombudsman, the
Respondents resorted
in instituting action proceedings under the
above case number and out of this court.
[8]
Upon service of the summons in this matter,
the Applicant entered an appearance to defend this action. The
Applicant did not plead
and the Respondents proceeded electronically
to serve a Notice of Bar which the Applicant‘s attorneys
averred not receiving.
Hereupon, the Respondents applied via the
Registrar of the High Court for default judgment and which was
granted on 25 November
2024. This occurred despite the fact that the
Respondents’ claims are for damages and such an application for
damages cannot
be granted by the Registrar of the High Court, having
rather to be set down for hearing in open court.
[9]
The Respondents then via their attorneys
initiated debt collection steps, having a warrant of execution issued
and handed to the
Sheriff for execution against the Applicant. In the
course of these Sheriff attendances, the Applicant acquired knowledge
of the
existing default judgment and informed the Respondents of its
intention to rescind this.
[10]
The Respondents refused to grant their
consent to rescission of judgment and the Applicant then resorted on
14 February 2025, in
launching an urgent application out of this
court to stay execution proceedings, pending determination of this
rescission of judgment
application.
ISSUE
FOR DETERMINATION
[11]
Is the Applicant entitled to have the
judgment by default rescinded?
THE LAW,
APPLICATION AND COMMENTARY
Rescission of
judgment in terms of Rule 42 of the Uniform Rules of Court
[12]
The Applicant contends that it is entitled
to rescission of the Order of 25 November 2024 in terms of either
Rule 42(1) (a), alternatively;
Rule 31(5)(d) of the Uniform Rules of
Court.
[13]
For the sake of convenience, the relevant
portion of Rule 42(1)(a) of the Uniform Rules of Court is recorded
below:
“
Variation
and rescission of orders
:
(1) The court may, in
addition to any other powers it may have,
mero motu
or upon
the application of any party affected, rescind or vary:
(a) an order or judgment
erroneously sought or erroneously granted in the absence of any party
affected thereby;
(b) …
… … .”
[14]
There are three ways in which a judgment
that was taken in the absence of one of the parties may be set aside,
namely:
[14.1] In terms of the
above subrule;
[14.2] in terms of
31(2)(b); or
[14.3]
at common law.
[1]
[15]
This court
in
Gamede
v Wesbank
[2]
held that
in
terms of Rule 42(1)(a), unlike Rule 31(2)(b) or the common law, the
applicant need not show good cause in explaining his default
or that
he has a
bona
fide
defence. Here the applicant requires to establish that the judgment
was granted erroneously.
[16]
The Applicant contends that the default
judgment was erroneously sought and granted in its absence.
[17]
It
is trite that the court has a discretion whether or not to grant an
application for rescission under this subrule.
[3]
This was confirmed by the Constitutional Court in
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
Including
Organs of State
[4]
where Khampepe J held that:
“
It
should be pointed out that once an applicant has met the requirements
for rescission, a court is merely endowed with a discretion
to
rescind its order. The precise wording of rule 42, after all,
postulates that a court “may”, not “must”,
rescind or vary its order – the rule is merely an “empowering
section and does not compel the court” to set aside
or rescind
anything.”
[18]
Further,
the Constitutional Court in
Zuma
emphasised that
an
applicant who invokes this rule must show that the order sought to be
rescinded was granted in his or her absence and that it
was
erroneously sought and/or granted. Put differently, both grounds as
above must be shown to exist.
[5]
The Applicant in this matter therefore bears the onus of proving that
the requirements for rescission in terms of the above subrule
are
met.
[19]
The above damages claims, as framed on
behalf of the First and Second Defendants in the High Court action,
fall within the ambit
of Rule 31(2)(a) of the Uniform Rules of Court,
in that these are not for a debt or liquidated demand.
[20]
Rule 31(2)(a) provides that:
“
Whenever
in an action the claim or, if there is more than one claim, any of
the claims is not for a debt or liquidated demand and
a defendant is
in default of delivery of notice of intention to defend or of a plea,
the plaintiff may set the action down as provided
in sub-rule (4) for
default judgment and the court may, after hearing evidence, grant
judgment against the defendant or make such
order as it deems fit.”
[21]
The application of Rule 31(2)(a) of the
Uniform Rules of Court envisages an application for default judgment
being ventilated in
open court and in circumstances where the
integrity of the Respondents’ cause of action and claims at
hand are open to scrutiny
by the court. Such claims require to be
quantified and proved and in so doing, evidence to this end
(including that of independent
experts) requires to be presented to
court and in support of such claims and related relief sought from
the High Court.
[22]
In perusing the Respondents’
Particulars of Claim to the Combined Summons, I further inter alia;
observed that that the First
and Second Respondents failed to set out
particulars of how the claimed damages in aggregate of R 1,691,300.00
were made up and
quantified and with that; there was no reference
contained in these Particulars of Claim as to the actual pre and post
fire incident
market values of the truck and trailer.
[23]
The First and Second Respondents also
omitted in their above Particulars of Claim to plead any terms of the
insurance agreements
relied upon and which are relevant in re the
damages claimed from the Applicant.
[24]
These Particulars of Claim as presented are
materially incomplete and actually excipiable.
[25]
These material omissions to the Plaintiff’s
Particulars of Claim would no doubt have attracted the court’s
attention
in considering whether a complete and sustainable cause of
action had been framed and proved by the Respondents and before
consideration
was given in granting default judgment and in these
circumstances, I submit that a judgment would not have been granted.
Default judgments
in terms of Rule 31(5)(a) of the Uniform Rules of Court
[26]
Rule 31(5)(a) empowers the Registrar of
this court to grant default judgments in certain circumstances.
[27]
The Registrar of the High Court in
considering applications for judgment and as envisaged in Rule 31(5)
of the Uniform Rules of
Court, can only grant default judgments where
the claims are attributed to debts/liquid and liquidated demands
(i.e. that fixed,
specific and certain as to amount or which may be
easily calculated). Default judgment here cannot be granted by the
Registrar
where the claims at hand are damages orientated and require
to be established and proved via the production of evidence for
consideration
by a court.
[28]
The Respondents’ claims framed in its
Particulars of Claim to its Summons related to damages to a truck and
trailer and which
damages required to be quantified and established
before a judgment may be granted. Such claims fall within the purview
of Rule
31(2)(a) and are entirely separate from that envisaged in
Rule 31(5)(a) of the Uniform Rules of Court.
[29]
In entertaing the Respondents’ claims
and then in granting judgment on 25 November 2024, the Registrar of
the High Court was
clearly incorrect and erred in so doing.
[30]
The Respondents were also misguided here in
applying for default judgment against the Applicant via the Registrar
of the High Court
and when per the application of Rule 31(2)(a), such
an application should have been set down for hearing in open court.
So to do
amounts to an abuse of legal process on the part of the
Respondents.
[31]
Further, the Respondents despite being
aware of the application and distinction between Rules 31(2)(a) and
31(5)(a), on acquiring
default judgment, then persisted in initiating
and undertaking debt collection steps including; causing the Sheriff
to execute
and enforce a writ of execution against the Applicant. The
pursuance of debt collection steps here is flawed, being based on
an incorrectly/irregularly and erroneously granted default judgment.
[32]
The Applicant became aware of the existence
of this default judgment and upon the Sheriff attending on its
business premises on
11 February 2025 to enforce the writ of
execution. On 11 February 2025, the Applicant’s attorneys
engaged with the Respondents
attorneys, in the process requesting,
inter alia; a stay of the writ of execution pending the outcome of a
rescission of judgment
application then to be resorted to by the
Applicant.
[33]
The Respondents refused to stay debt
collection steps pending the pursuance by the Applicant of its
announced rescission of judgment
process. Instead, on 14 February
2025 and at the instance of the Respondents; the Sheriff of the High
Court again attended on the
business premises of the Applicant to
write up and attach for sale and execution purposes the Applicant’s
assets; the Sheriff
in the process compiling an inventory of attached
assets in anticipation of a sale in execution in due course of such
attached
assets.
[34]
There was clearly no impediment in the
Respondents’ staying debt collection steps as requested and
pending the Applicant’s
conduct of rescission of judgment
application process and further consenting hereto. Instead, what is
clearly apparent here is
that the Respondents persisted in placing
reliance on the above incorrectly, irregularly and erroneously
granted default judgment
and with that; unduly placed the Applicant
under maximum pressure in directing the Sheriff to enforce the writ
of execution and
attach the Applicant’s assets for sale in
execution.
[35]
This then culminated in the Applicant
resorting in pursuing an urgent application out of this court on 16
February 2025 to stay
the enforcement of the writ of execution
pending a rescission of judgment application being resorted to by the
Applicant.
[36]
On 16 February 2025, an Order to stay the
writ of execution was granted by my brother Wilson J and whose
related urgent Order, I
concur with.
[37]
Despite having been presented with the
above Court Order of Wilson J, the Respondents for their part then
doggedly persisted in
opposing the Applicant in the ensuing
rescission of judgment application that I contend with here.
[38]
What is noteworthy is that the Respondents
have failed in both the urgent application and this rescission of
judgment application
to substantively deal with the circumstances of
the Registrar of this court having incorrectly granted the default
judgment in
favour of the Respondents and on their illiquid claim.
[39]
In these circumstances, the Applicant
having regard to the scope and application of Rule 42(1)(a) of the
Uniform Rules of Court
is entitled to expeditiously correct an
obviously wrong order and judgment granted against it by the
Registrar of this court and
which then stands to be summarily
rescinded and set aside and substituted with the Order recorded
below.
[40]
With this, I have no reason to take issue
with the Applicant’s rescission of judgment application. I also
have no reason to
disbelieve the Applicant and where it alleges that
its attorneys did not electronically receive the Respondents’
notice of
bar and default judgment application.
[41]
Where however I do take issue with the
Applicant’s conduct in this action, is in its attorneys’
failure to abide the
Uniform Rules of Court in timeously serving and
filing as of record the Defendants’s plea. An appearance to
defend the action
was served on behalf of the Defendant on 04
September 2024 and the 20-day period within which to draw, serve and
file the Defendant’s
plea per Rule 22(1) of the Uniform Rules
of Court lapsed on 03 October 2024. Had the Defendant simply abided
the Uniform Rules
of Court and timeously served its plea, none of the
aforesaid would have occurred.
COSTS
[42]
On
costs in civil suits, the general principle is that costs follow the
outcome.
[6]
[43]
A
fundamental feature of awarding costs serves to indemnify a
successful litigant for the expense that it has been put through in
initiatiating or defending litigation.
[7]
The successful party should be awarded costs.
[8]
[44]
The Applicant in the midst of defending an
ongoing substantive action being pursued by the Respondents against
it, had also then
to resort in launching an urgent application to
stay debt collection process being pursued against it by the Sheriff
of the High
Court at the behest of the Respondents and in
circumstances where the Respondents had disregarded the scope and
application of
Rule 31(2)(a) and in incorrectly obtaining default
judgment against the Applicant via the Registrar of the High Court.
[45]
Having been successful in the above urgent
application, the Applicant had then also to contend with a
strenuously opposed rescission
of judgment application. Clearly, in
contending with debt collection process being enforced by the
Sheriff, taking the extraordinary
step of having to resort in
pursuing the above urgent High Court application to stay execution
and thereupon in having to contend
with an opposed rescission of
judgment application; it is to be anticipated that the Applicant will
indeed incur unnecessary and
not insubstantial legal costs in so
doing.
[46]
There was absolutely no bar to the
Respondents and upon the Applicant applying for rescission of
judgment back on 11 February 2025,
to there and then consent thereto
and with that, avoid the above entirely unnecessary urgent High Court
application and ensuing
opposed rescission of judgment process.
[47]
The
court here has a wide discretion vis-à-vis costs and which it
may exercise upon due consideration of the salient facts
of this
matter.
[9]
The decision the
court makes here also takes account of fairness to the litigants and
the peculiar circumstances of this case,
in the process carefully
weighing up the issues arising and the conduct of the parties as well
as any other circumstances which
may have a bearing on the issue of
costs.
[48]
Accordingly, having read the documents
filed of record, heard counsel and considered the matter, I handed
down the undermentioned
Order:
“
IT
IS ORDERED:
1. That the default
judgment granted against the Applicant, dated 25 November 2024, is
rescinded and set aside;
2. That the Applicant
is afforded 20 (twenty) days from the date of this order to file
papers in the main action; and
3. That costs of the
urgent application and the rescission application, under the
abovementioned case number, are granted against
the Respondents, in
favour of the Applicant, on an attorney and client scale, including
the costs of 1 counsel on scale B.”
MEADEN JR
ACTING JUDGE OF THE
HIGH COURT,
GAUTENG DIVISION,
JOHANNESBURG
For
Applicant:
Adv. H Le Roux
Instructed
by:
Muller & Co Attorneys Inc.
For
Respondents:
Adv. MF Mashishi
Instructed
by:
Mokuena Attorneys
Date
of Hearing:
03 February 2026
Date
of Judgment:
26 March 2026
This judgment was
handed down electronically by circulation to the parties and or
parties' representatives by email and by being
uploaded to CaseLines.
The date and time for the hand down is deemed to be 13h00 on this
26
th
day of March 2026.
[1]
De
Wet and Others v Western Bank Ltd
1977 (4) SA 770
(T) at 776E.
[2]
(24707/2020) [2023] ZAGPJHC 804 (20 July 2023) at para 13;
Freedom
Stationery (Pty) Ltd v Hassam
2019
(4) SA 459 (SCA).
[3]
Ibid
at 780H-781A;
Swart
v Absa Bank Ltd
(11975/08)
[2008] ZAWCHC 114
;
2009 (5) SA 219
(C) (9 December 2008).
[4]
(CCT
52/21)
[2021] ZACC 28
;
2021 (11) BCLR 1263
(CC) (17 September 2021)
at para 53.
[5]
Ibid. At para 54.
[6]
Alluvial
Creek Ltd
1929
CPD 532
at 535.
[7]
Road
Accident Fund v Nibe
(76672/2017) [2025] ZAGPPHC 24 (16 January 2025) at para 75.
[8]
Union
Government v Gass
1959 4 SA 401
(A) 413.
[9]
Road
Accident Fund v Nibe
(n 7) at para 76.