THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 788/2024
In the matter between:
GORR ASSIST (PTY) LTD APPLICANT
and
BAYPORT SECURITISATION (RF) LTD
(Successor in title to Bayport Financial
Services 2010 (Pty) Ltd) RESPONDENT
Neutral citation: Gorr Assist (Pty) Ltd v Bayport Securitisation (RF) L td
(788/2024) [2026] ZASCA 51 (14 April 2026)
Coram: MOCUMIE, KOEN and BAARTMAN JJA and STEYN and
GOVINDJEE AJJA
Heard: 2 March 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, published on the Supreme Court of Appeal website,
and released to SAFLII. The date and time for hand-down is deemed to be 14 April
2026 at 11h00.
2
Summary: Appeal – application for special leave to appeal – condonation –
whether reasonable prospects of success on appeal – determining factual basis on
which magistrates ’ court concluded that claims had prescribed – whether
magistrates’ court ruling that claim prescribed in conflict with s 165 of the
Constitution – whether high court erred in refusing condonation for late noting of
appeal – whether appeal has prospects of success – lack of prospects of success
dispositive of applications for condonation and special leave to appeal.
3
ORDER
On application: for special leave to appeal a decision of the Gauteng Division of
the High Court, Johannesburg (Dippenaar J and Goodman AJ, sitting as a court of
appeal):
The applications for condonation and for special leave to appeal are dismissed with
costs.
JUDGMENT
Koen JA (Mocumie and Baartman JJA and Steyn and Govindjee AJJA
concurring):
Introduction
[1] The app licant, Gorr Assist (Pty) Ltd (Gorr), seeks special leave to appeal
against an order of the full bench of the High Court of South Africa, Gauteng
Division (the full bench) given on appeal to it . Gorr also seeks an order condoning
its failure to have pursued the application for special leave before this Court
timeously.
[2] The appeal to the full bench was against a judgment of the Magistrates’ Court
for the District of Johannesburg North, held at Randburg (the Randburg court). The
Randburg court held that Gorr’s action for payment of R30 838.72 (claim A) and
R30 237.73 (claim B) against the respondent, Bayport Securitisation (RF) Ltd (BS),
had prescribed. Gorr also sought condonation for its failure to pursue its appeal to
the full bench timeously.
4
[3] The full bench disposed of the appeal by dismissing Gorr’s application for
condonation. It did so primarily because it was not satisfied that Gorr had reasonable
prospects of succeeding with the appeal against the judgment of the Randburg court.
[4] The application for special leave to this Court, which includes whether the
lateness of the application should be condoned, has been referred for oral argument
in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013 (the Act).1 The parties
were directed to be prepared, if required, to address the Court on the merits of the
appeal.
[5] The issues which arise include:
(a) Whether the full bench erred in dismissing Gorr’s application for condonation
for its failure to pursue the appeal timeously, specifically whether Gorr had
established a reasonable prospect of successfully appealing the Randburg
court’s order;
(b) Whether Gorr’s failure to pursue the application for special leave to appeal to
this Court timeously should be condoned;
(c) Whether there are special circumstances present which would warrant special
leave being granted; and if so, whether the appeal should succeed.
Central to all the above issues is whether the Randburg court was correct in
determining that Gorr’s claims had prescribed. If not shown to have erred, then Gorr
could not enjoy reasonable prospects of succeeding with any appeal. That would
dispose of the applications for condonation and special leave before this Court.
[6] Regarding prescription, it is common cause that : Mr Letlhogonolo Percy
Mothibi (Mr Mothibi), the cedent of the claims which Gorr seeks to enforce, had
knowledge of all the facts giving rise to the claims by no later than the end of
1 Per Mabindla-Boqwana JA and Unterhalter AJA.
5
February 2017; the extinctive prescription period applicable to the claims would be
three years, as provided in s 11(d)2 of the Prescription Act 68 of 1969; and the
summons in the Randburg court action was served on BS on 19 August 2021. Gorr
contends, however, that the claims were not enforceable until 14 June 2021 and that
the prescriptive period was therefore interrupted by the service of the summons. That
enquiry requires an analysis of the factual basis upon which the special plea of
prescription fell to be decided. What that factual matrix was is unclear. It received
no attention at the time when the Randburg court indicated that it would decide the
special plea of prescription separately from the other issues in the proceedings.
The background facts
The separation of the prescription defence
[7] BS raised special pleas of lis alibi pendens and prescription in defending the
claims instituted by Gorr in the Randburg court. The learned magistrate stated that
he was ‘going to hear the points in limine raised’. As BS did not persist with the lis
alibi pendens defence, the import of the magistrate’s statement was that the special
plea of prescription (the special plea) was separated for determination before all the
other issues in the trial. The question that should then have arisen is the factual basis
on which the special plea should be decided.
[8] The proceedings in the Randburg court took the form of an action. No oral
evidence was however adduced. Nor was there an agreed stated case of common
cause facts, on the basis of which the special plea would be determined. Before us,
counsel were not ad idem (in agreement) as to the factual basis on which the
prescription defence fell to be decided. Gorr’s counsel, who did not appear at the
trial before the Randburg court, contended that the special plea was to be decided on
2 Section 11(d) provides:
‘(d) save where an Act of Parliament provides otherwise, three years in respect of any other debt. ’
6
the basis of the pleadings and the bundles of documents. Volume 1 of the record
before this Court consists of the ‘Pleadings’ and a n incomplete ‘Plaintiff’s Trial
Bundle’. The respondent’s counsel, who did appear at the trial before the Randburg
court, contended that the special plea proceeded on Gorr’s ‘pleaded case’ , as read
with BS’s plea.
[9] The learned magistrate, in his judgment upholding the special plea r ecorded
that Gorr had handed up a bundle of discovered documents during argument, which
he peruse d for the purposes of preparing the judgment. He listed some of the se
documents. But there is no recordal in the transcript of the proceedings before the
Randburg court as to the status of these documents, that is, whether they simply are
what they purport to be, or whether it was agreed that they also served as proof of
the contents thereof.
[10] Gorr seemingly accepted the factual matrix against which the plea of
prescription was decided by the Randburg court, because it appealed only the merits
of that order. The full bench proceeded on the basis that the plea of prescription was
determined by the Randburg court on the pleadings and the discovered documents
which had been placed before it. In terms of the rules of this Court, the parties had
to agree which documents are relevant and should be included in the record which
this Court has to consider in deciding the application for special leave to appeal.3
The record, constituted as a result of that process, contains various documents.
[11] This judgment proceeds on the basis of the allegations in the pleadings and the
contents of the documents which have been included in the appeal record , and
assumes them to afford proof of the contents thereof. The parties argued the
applications on that basis. It is, however, unsatisfactory, as some allegations in the
3 Supreme Court of Appeal rule 8, particularly rule 8(8) and (9).
7
pleadings are inconsistent with the contents of the discovered documents, as will
become apparent below , and therefore difficult to reconcile . Any s uch
inconsistencies will be assessed in accordance with the probabilities. Applying this
approach, the following material background facts and relevant circumstances have
been distilled from the pleadings and documents.
The material facts
[12] Mr Mothibi concluded certain small and intermediate loan credit agreements
with Bayport Financial Services (Pty) Ltd (BFS) or Bayport Financial Services 2010
(Pty) Ltd (BFS 2010), from, it seems, May 2009. He defaulted in his obligations in
terms of the loan agreement s and two action s were instituted against him by BFS
during 2010 under case n umbers 26633/2010 and 28870/2010 in the Verulam
Magistrate’s Court (the Verulam court).4 On 14 and 15 September 2010, Mr Mothibi
consented in writing , in terms of s 58 5 of the Magistrates’ Court Act 32 of 1944
4 The appeal record does not contain copies of the summonses.
5 Section 58 of the Magistrates’ Court Act 32 of 1944 provides in part as follows:
‘(1) If any person (in this section called the defendant), upon receipt of a letter of demand or service upon him or her
of a summons demanding payment of debt, consents in writing to judgment in favour of the creditor (in this section
called the plaintiff) for the amount of the debt and the costs claimed in the letter of demand or summons, or for any
other amount, the court may, on the written request of the plaintiff or his or her attorney and subject to subsection
(1B)-
(a) enter judgment in favour of the plaintiff for the amount of the debt and the costs for which the defendant has
consented to judgment; and
(b) if it appears from the defendant's written consent to judgment that he or she has also consented to an order of court
for payment in specified instalments or otherwise of the amount of the debt and costs in respect of which he or she has
consented to judgment, order the defendant to pay the judgment debt and costs in specified instalments or otherwise
in accordance with this consent, and such order shall be deemed to be an order of the court mentioned in section 65A
(1).
(1A) If the defendant consents to an order of court for payment in specified instalments referred to in subsection (1)(b),
the consent must-
(a) set out full particulars of his or her-
(i) monthly or weekly income and expenditure, supported where reasonably possible by the most recent proof in
the possession of the defendant;
(ii) other court orders or agreements, if any, with other creditors for payment of a debt and costs in instalments; and
(b) indicate the amount of the offered instalment.
(1B) The written request referred to in subsection (1) must be accompanied by -
(a) the summons or if no summons has been issued, a copy of the letter of demand;
(b) the defendant's written consent to judgment; and
(c) if the defendant consents to an order of court for payment in specified instalments referred to in subsection (1) (b)-
(i) the written consent; and
(ii) the full particulars and documentary evidence referred to in subsection (1A) in order for the court to be apprised
of the defendant's financial position at the time the defendant consented to judgment.
8
(MCA), to judgments being entered against him in favour of BFS and for emolument
attachment order s in terms of s 65J of the MCA to be issued. 6 Pursuant to the
consents, two judgments were granted in favour of BFS and emolument attachment
orders were issued in favour of BFS on 8 November 2010. Gorr’s claims are alleged
to arise from the two judgments granted by the Verulam court.
[13] In terms of a written cession dated 7 October 2011 (the cession), BFS 2010,
described as the successor in title to BFS, as seller, sold and ceded its right, title and
interest in and to its existing and future loan claims to BS as purchaser and cessionary
of those loans. The sale was with effect from 30 April 2008.
[14] BFS 2010 and BS are separate companies. Th e cession annexed to Gorr’s
particulars of claim in the Randburg court , reflects the registration number of BFS
and its successor in title, BFS 2010, as 2009/018403/07, and the registration number
of BS as 2008/003557/06.
[15] Ex facie (as appears from) the particulars of claim and the annexures thereto,
Mr Mothibi allegedly made payments between 31 January 2011 until 21 October
2017 and 31 March 2011 until 25 March 2021, totalling R30 838.72 and R30 237.73
(1C) The court-
(a) may request any relevant information from the plaintiff or his or her attorney in order for the court to be apprised
of the defendant's financial position at the time the judgment is requested;
(b) must act in terms of the provisions of the National Credit Act and the regulations thereunder dealing with over -
indebtedness, reckless credit and affordability assessment, when considering a request for judgment in terms of this
section, based on a credit agreement under the National Credit Act;
(c) may, if the defendant is employed, and after satisfying itself that it is just and equitable that an emoluments
attachment order be issued and that the amount is appropriate, authorise an emoluments attachment order referred to
in section 65J; and
in section 65J; and
(d) may, notwithstanding the defendant's consent to pay any scale of costs, make a costs order as it deems fit.
(2) The provisions of section 57 (3) and (4) apply in respect of the judgment and court order referred to in subsection
(1) of this section.
(3) The provisions of this section apply, subject to the relevant provisions of the National Credit Act, where the
application for judgment is based on a credit agreement under the National Credit Act.’
6 African Bank Limited v Additional Magistrate Myambo NO and Others (34793/2008) [2010] ZAGPPHC 60; 2010
(6) SA 298 (GNP) (9 July 2010) at 304F confirmed that a judgment granted in respect of a s 58 consent has the effect
of a default judgment.
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respectively, in terms of and pursuant to the judgments . The computation of these
amounts appears from statements of BS annexed to the particulars of claim.
[16] Mr Mothibi did not reside, nor was he employed in the area of jurisdiction of
the Verulam court when he signed the consents and when the judgments were
granted. Accordingly, the Verulam court lacked jurisdiction to have granted the
judgments against him . It is common cause that the judgments were therefore, in
law, void ab initio (from the outset). Mr Mothibi became aware that the judgments
had been obtained out of the wrong jurisdiction during February 2017.
[17] During November 2017, Mr Mothibi brought an application against BFS to
rescind the Verulam court judgments. He did not claim repayment of what he had
paid pursuant to the judgments in the rescission application. In both the founding and
replying affidavits7 filed in support of the rescission applications BFS is cited as the
respondent. It is alleged by Gorr that the Verulam court, acting in terms of s 36(1)(b)
of the MCA read with rule 49(8) of the Rules of the Magistrates Court, on 14 June
2021, rescinded the two judgments.
[18] A copy of the rescission order in case number 26633/2010 dated 14 June 2021,
is annexed to the particulars of claim . The heading thereto reflects the respondent,
against whom the rescission was granted, as BS. Below its name in the heading, a
subscript records that it is ‘the successor in title to BFS 2010’. The order records that
the judgment of 8 November 2010 was rescinded.
[19] No explanation has been provided as to how the applications for rescission
against BFS, to rescind orders granted in favour of BFS, resulted in an order against
7 Curiously, both the founding and replying affidavit are dated 24 November 2017, although the replying affidavit
refers to Mr Mothibi having read the answering affidavit of Mr Jaco Dirk Knoetze, which was served and filed on 18
May 2017.
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BS, where no judgment was granted, nor alleged to have been granted, in favour of
BS. No consents to judgment were signed by Mr Mothibi in favour of BS, no
judgment was granted in favour of BS, no emoluments attachment orders were issued
in favour of BS, and no application for rescission was brought against BS. Only the
rescission order refers to BS.
[20] On 27 July 2021, Mr Mothibi ceded all his right, title and interest in respect
of his ‘present claim of’ R30 838.72 and R30 237.73 that he ‘obtained or acquired
against [BS and/or BFS 2010]’ to Gorr. On 4 August 2021, Gorr issued the summons
commencing action in the Randburg court against BS. The summons was served on
BS on 19 August 2021.
[21] In its particulars of claim Gorr alleges that BS8 is the successor in title to BFS
2010. The only basis, appearing from the pleadings and documents, that BS, as a
separate corporate entity, can be the successor in title to BFS 2010, is as cessionary
of the right, title and interest previously held by BFS 2010 in respect of the loan
agreements. BS specifically pleaded that there was no delegation and that it did not
assume any obligations of BFS.
[22] Gorr’s cause of action, as pleaded in its particulars of claim, is as follows: the
judgments of the Verulam court in favour of BFS were void; the payments made by
Mr Mothibi pursuant to these judgments were accordingly not due pursuant to a valid
court order ; the judgments were subsequently rescinded; accordingly restitutio n
should follow; therefore the amounts paid by Mr Mothibi should be repaid to Gorr
as cessionary of Mr Mothibi’s claims. That this is the basis of its claims was
confirmed during argument.
8 Bayport Securitisation (RF) Ltd was previously known as Bayport Securitisation (Pty) Ltd.
11
The judgment of the Randburg court
[23] On 29 April 2022, the Randburg court upheld the special plea of prescription.
It reasoned that: the claims did not only arise when the Verulam court judgments
were rescinded; the Verulam court in rescinding the judgments had simply confirmed
what the legal position was at the time that the judgments were granted, that is that
they were void ab initio; Mr Mothibi knew all the facts in support of his c laims by
latest February 2017; a judgment does not create a cause of action but simply
confirms that a liability exists; the judgments gave effect to the loan agreements;
and, as the summons against BS was served more than four and a half years after Mr
Mothibi knew all the facts required to commence proceedings , the claims had
prescribed.
[24] The judgment reaffirmed the well -known principle that, for the start of
prescription, a debt is not considered due until the creditor knows the identity of the
debtor and the facts that give rise to the debt or could reasonably have obtained such
knowledge. Additionally, understanding the legal conclusions to be drawn and legal
remedies that may result from the facts is not necessary before prescription begins
to run.
[25] The judgment considered various causes of action which could arise from the
facts: the condictio indebiti; the condictio sine causa; and restitution. In its analysis
of ‘the papers filed and arguments advanced’, the judgment concluded: that BFS had
obtained the judgments against Mr Mothibi in the Verulam court; in consequence of
these two judgments BFS received certain payments; the payments could be claimed
in terms of the emolument attachment orders issued in the Verulam court; that
whatever payments were made were due in terms of the underlying loan agreements;
and the payments by Mr Mothibi were not made indebiti (not being owed) because
they were legally due in terms of the loan agreements . The judgment further
12
concluded that it was unclear as to what Mr Mothibi obtained or acquired against BS
and when this was obtained . H aving regard to the agreements concluded by Mr
Mothibi and BFS 2010 it could not be disputed that Mr Mothibi owed the money and
the money would have to be paid in any event in terms of the agreements . The
payments were accordingly not made without any legal obligation, as they were due
and were made pursuant to the terms of the underlying loan agreements.
[26] Mr Mothibi had acknowledged his liability to BFS when he signed the
consents to judgment. H e w as required to make the payments in terms of the
underlying loan agreements. He ha d not sought to impeach the consents. The
consents were provided without reservation and acknowledged that he was in breach
of the underlying agreements . The Verulam court judgments did not create a new
legal obligation but, the issue of the voidness of the orders aside, simply served to
confirm an extant legal indebtednes s and facilitated enforcement of Mr Mothibi’s
loan obligations, insofar as may be required.
The appeal to the full bench and condonation
[27] Gorr resolved to appeal the decision of the Randburg court. On 6 April 2022,
it requested the transcript of the proceeding in the Randburg court . Follow-up
requests for the transcription were made from 29 April 2022 until 20 May 2022,
without initial success.
[28] An appeal against a magistrate's decision is prosecuted within sixty days of
noting the appeal, failing which the appeal shall lapse. 9 Gorr served its rule 51(3)
notice on BS on 27 May 2022. It failed to file the record of the proceedings before
the Randburg court within twenty days after the date of the judgment appealed
against. The transcript of the proceedings in the Randburg court was received on 3
9 Rule 50(1) of the Uniform Rules of Court.
13
August 2022. The appeal lapsed in terms of rule 50(1). Gorr does not dispute that its
notice of appeal was delivered late but maintains that this was beyond its control.
[29] Gorr had to apply for condonation for the late delivery of the notice of appeal.
It did not do so, contending that the appeal was properly noted on 27 May 2022. That
was the date it was served on B S’s attorneys, but it had not yet been filed with the
Registrar. That only happened on 2 June 2022.
[30] BS delivered a rule 6(5) (d)(iii) notice in opposition to the application for
condonation. It contended that: Gorr had not shown good cause for the delay; no
proper reason was provided why the appeal was not timeously prosecuted; the appeal
had lapsed; and no application for reinstatement had been made. Gorr submitted that
condonation should be granted in the best interest of justice and that the special plea
of prescription should be dismissed.
[31] The appeal was heard by the full bench on 31 January 2024. The full bench
did not determine the appeal on its merits. It remarked, in relation to the application
for condonation, that BS ’s contention that Gorr had not advanced a satisfactory
explanation for its delay, had merit. But it concluded that: ultimately, the appeal had
no reasonable prospects of success on appeal ; the appeal was doomed to fail on its
merits; and that the lack of prospects of success on appeal was dispositive of the
application for condonation. It dismissed the application for condonation for that
reason, with costs.
[32] In dismissing the application for condonation , the full bench exercised a
discretion. The test for appellate interference with a discretion was referred to by the
14
Constitutional Court in Florence v Government of the Republic of South Africa 10 as
follows:
‘The power of an appellate court to interfere with the exercise of a discretion by a court a quo is
not without restraint. It is limited by whether the discretion of the court in issue is discretion in the
strict sense, sometimes called a strong or true discretion.’
Where a court is granted wide decision-making powers with a number of options or
variables, an appellate court may not interfere unless it is clear that the choice the
court has preferred is at odds with the law. If the impugned decision lies within a
range of permissible decisions, an appeal court may not interfere only because it
favours a different option within the range. This principle of appellate restraint
preserves judicial comity. It fosters certainty in the application of the law and favours
finality in judicial decision-making.
[33] There is no basis to interfere with the full bench’s exercise of its discretion in
remarking that there was merit in the submission that Gorr had not advanced a
satisfactory explanation for its delay. But strong prospects of success may excuse a
weak explanation of delay. 11 Whether the full bench’s decision that there were no
reasonable prospects of success on appeal, warrants interference, shall be considered
below.
The appeal to this Court and condonation
[34] The judgment of the full bench was delivered on 21 February 2024. On 13
July 2024, Gorr applied to this Court for special leave to appeal against the decision
of the full bench.
10 Florence v Government of the Republic of South Africa [2014] ZACC 22; 2014 (6) SA 456 (CC); 2014 (10) BCLR
1137 (CC) para 111.
11 Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (5) BLLR 465 CC; 2000 (2) SA 837 (CC) para
3.
15
[35] Gorr failed to file its application for special leave timeously. Accordingly, the
application for special leave to this Court lapsed. Gorr applied for condonation.
Gorr’s prospects of success fully appealing are important also in deciding whether
this Court should condone its failure to file its application for special leave timeously.
Discussion
[36] Gorr’s case on prescription is that any action for recovery of the monies paid
could not be instituted until the judgments of the Verulam court were rescinded,
because it could not reclaim what was paid, while court orders which required such
payments to be made, were extant. Accordingly, that prescription only commenced
to run once the re scission orders were granted. Reliance was placed on s 12(2) and
s 12(3)12 of the Prescription Act 68 of 1969.
[37] The aforesaid proposition contains a conceptual flaw. It fails to recognise that
the court orders requiring payment were in law void ab initio. Gorr’s attack on the
judgment of the Randburg court also fails to have regard to other trite principles
applicable to prescription.
The commencement of the prescription period
[38] Prescription commences to run as soon as a debt is due. 13 In Links v
Department of Health (Links),14 the Constitutional Court, held that:
12 Section 12 of the Prescription Act 68 of 1969 in part provides:
‘(1) Subject to the provisions of subsection (2), (3) and (4), prescription shall commence to run as soon as the debt is
due.
(2) If the debtor willfully prevents the creditor from coming to know of the existence of the debt, prescription shall not
commence to run until the creditor becomes aware of the existence of the debt.
(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts
from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired
it by exercising reasonable care.’
it by exercising reasonable care.’
13 Section 12 (1) of the Prescription Act 68 of 1969.
14 Links v Department of Health [2016] ZACC 10; 2016 (5) BCLR 656; 2016 (4) SA 414 (CC) para 17.
16
‘a “debt due” means a debt, . . . which is owing and payable, . . . that is, when the entire set of facts
which the creditor must prove in order to succeed with his or her claim against the debtor is in
place . . ..’ (Emphasis added)
A debt is not due until the creditor has knowledge of the identity of the debtor and
the facts giving rise to the debt, or could reasonably have acquired such knowledge.15
[39] Knowledge of legal conclusions to be drawn from the facts, including which
remedies may arise, is not required for a debt to become due and for prescription to
commence running.16 In Van Heerden & Brummer Inc v Bath (Van Heerden),17 this
Court referred with approval to the following passage in Fluxmans Inc v Levensons
(Fluxmans):18
‘Knowledge that the relevant agreement did not comply with the provisions of the Act is not a fact
which the respondent needed to acquire to complete a cause of action and was therefore not relevant
to the running of prescription. This Court stated in Gore NO para 17 that the period of prescription
begins to run against the creditor when it has minimum facts that are necessary to institute action.
The running of prescription is not postponed until it becomes aware of the full extent of its rights
nor until it has evidence that would prove a case “comfortably”. The “fact” on which the respondent
relies for the contention that the period of prescription began to run in February 2014, is knowledge
about the legal status of the agreement, which is irrelevant to the commencement of prescription.
It may be that before February 2014 the respondent did not appreciate the legal consequences
which flowed from the facts, but his failure to do so did not delay the date on which the prescription
began to run. Knowledge of invalidity of the contingency fee agreement or knowledge of its non-
compliance with the provision of the Act is one and the same thing otherwise stated or expressed
differently. That the contingency fees agreements such as the present one, which do not co mply
with the Act, are invalid is a legal position that obtained since the decision of this court in Price
Waterhouse Coopers Inc and is therefore not a fact which the respondent had to establish in order
to complete his cause of action. Section 12(3) of the Prescription Act requires knowledge only of
15 ATB Chartered Accountants (SA) v Bongiglio (648/09) [2010] ZASCA 124; [2011] 2 All SA 132 (SCA) (30
September 2010).
16 Claasen v Bester [2011] ZASCA 197; 2012 (2) SA 404 (SCA); Fluxmans Incorporated v Levenson [2016] ZASCA
183; [2017] 1 All SA 313 (SCA); 2017 (2) SA 520 (SCA) and Mtokonya v Minister of Police [2017] ZACC 33; 2017
(11) BCLR 1443 (CC); 2018 (5) SA 22 (CC).
17 Van Heerden & Brummer Inc v Bath (356/2020) [2021] ZASCA 80 (11 June 2021) para 18.
18 Fluxmans fn 16 para 42.
17
the material facts from which the prescriptive period begins to run – it does not require knowledge
of the legal conclusion (that the known facts constitute invalidity) ( Claasen v Bester [2011]
ZASCA 197; 2012 (2) SA 404 (SCA).’ (Footnotes omitted.) (Emphasis added)
[40] Whether the debt was due in law; what cause of action should be pursued ;
against whom the claims should be instituted; whether the Verulam court judgments
were void ab initio; and whether the Verulam court judgments first had to be
rescinded, as Gorr contends, are all questions of law . They are not relevant as to
when the running of prescription commenced. Mr Mothibi, as appears from his
founding affidavit in support of the rescission of judgment applications , was aware
in February 2017 that the monies sought to be reclaimed had been deducted from his
salary since about December 2010. His attorneys also advised him in February 2017
of BFS’s failure to compl y with the applicable legislation, which result ed in the
judgments being void ab initio.
[41] This Court, when dealing with a similar, although not identical situation in
Auckland Park Theological Seminary v Wamjay Holding Investments (Pty) Ltd ,
said:19
‘The submission by Wamjay and the finding by the high court, that prescription only started to run
in 2021 when the Constitutional Court delivered its judgment, is not supported by the facts.
Wamjay conflates knowledge of material facts with legal certaint y and/ or legal conclusion. The
pronouncement of the Constitutional Court in 2021 only settled a legal conclusion to the effect that
the rights between UJ and ATS were personal in nature. The letter from UJ’s attorney provided all
the material facts necessary for Wamjay to establish its debt. While the relationship between ATS
and Wamjay might have discouraged them from litigating against each other, nothing precluded
Wamjay from seeking a declaratory order to interrupt prescription. Thus, by 5 October 2012,
Wamjay from seeking a declaratory order to interrupt prescription. Thus, by 5 October 2012,
action should have been taken to interrupt prescription. I therefore find that, on the said date
Wamjay had the entire set of facts it needed to institute its claim against ATS.’ (Emphasis added)
This Court concluded:
19 Auckland Park Theological Seminary v Wamjay Holding Investments (Pty) Ltd [2025] ZASCA 65 paras 19 and 31.
18
‘In my view, the delivery of the judgment of the Constitutional Court in the matter of UJ against
ATS and Wamjay did not signal the commencement of the prescription period, same having begun
to run on 5 October 2012. On this point alone, the appeal stands t o be upheld and the application
in the high court had to be dismissed.’
Similarly, in the present matter, the prescriptive period commenced from February
2017. Legal conclusions, such as whether the judgments of the Verulam court were
void ab initio and first had to be rescinded, were not required to be addressed before
prescription would commence.
The claim for restitution against BS
[42] Having taken cession of Mr Mothibi’s claims , Gorr elected to claim against
BS and to couch its claim as one for restitution based on the invalidity , from the
outset, of the Verulam court judgments. That was a deliberate choice of remedy from
a range of possible remedies available to it and entailed a conclusion of law . Gorr
was required to establish: that the payments reclaimed had been paid by Mr Mothibi
pursuant to the Verulam judgments; that the judgments were void ab initio , and
would entitle it to restitution of whatever was performed pursuant thereto; and that
BS received the payments in terms of the void judgments and would therefore be
legally obligated to restore such payments.
[43] It is significant at the outset to reiterate that BS and BFS, subsequently known
as BFS 2010, are separate and distinct companies . They have separate and distinct
registration numbers. On Gorr’s pleaded case, BFS 2010 sold and ceded its right,
title and interest to the contracts to BS . A sale and cession would not have been
required or legally possible, if they were not separate and distinct corporate entities.
[44] It is common cause that the judgments of the Verulam court were, as a matter
of law, void ab initio. Accordingly, in the ordinary course, restitution of performance
of law, void ab initio. Accordingly, in the ordinary course, restitution of performance
made pursuant to the judgments by the parties thereto, should follow.
19
[45] BS was however not a party to the Verulam judgments. BFS was the plaintiff
and execution creditor. The s 58 consents to judgment were signed by Mr Mothibi
in favour of BFS. The judgments were granted in favour of BFS against Mr Mothibi.
Similarly, t he emolument attachment judgments were granted in favour of BFS
against Mr Mothibi. The applications to rescind the orders were brought against BFS.
There is no evidence that BS ever, somehow, came to be substituted for BFS as a
party to the Verulam court judgments.
[46] The only mention of BS in any document relating to the proceedings in the
Verulam court is in the copy of a court order dated 14 June 2021. It reflects that an
order was granted by the Verulam court, in proceedings between Mr Mothibi , as
applicant and BS, as respondent, under case number 26633/2010 on 14 June 2021.
The order purportedly rescinded a judgment granted on 8 November 2010.
[47] There is, however, no copy of a court order recording that any judgment was
ever granted in favour of BS. The judgment and emoluments attachment order issued
under case number 26633/2010 refer to the judgment granted against Mr Mothibi in
favour of BFS. In the absence of documentary proof that BS came to be substituted
for BFS in case number 26633/2010, this rescission order simply does not have any
practical impact. T here is no documentation to suggest that BS ever obtained a
judgment against Mr Mothibi, or obtained an emoluments attachment order in its
favour, pursuant to which payments would have been required to be made to it. The
only reasonable inference , at the level of probability , is that there never was any
judgment in favour of BS. But regardless, even if the re was a rescission of the
judgments granted in favour of BFS or BS, this does not affect the finding that the
claim of Gorr had prescribed, as will be demonstrated further below.
20
[48] As regards whether payments made to BS were pursuant to the Verulam court
judgments, payments, in terms of the Verulam court judgments , were due only to
BFS, not BS . Insofar as reliance might be placed on the cession by BFS 2010 as
giving rise to an obligation on the part of BS , as the ‘successor in title’ to BFS to
restore what was performed in terms of the judgment in favour of BFS, the cession
was confined to BFS 2010’s right, title and interest to the loan agreements . There
was no transfer to BS of possible obligations of BFS to restore what might have been
performed pursuant to the void judgments. BS acquired rights in terms of the cession,
not obligations.20 There was not a delegation21 transferring obligations from BFS to
BS.
[49] Further, as regards the cession: BS would probably have become entitled to
the benefits of the judgments granted on 8 November 2010 against Mr Mothibi in
favour of BFS 2010/BFS, by virtue of the cession executed on 7 October 2011. This
was however after litis contestation had been reached in the actions by BFS against
Mr Mothibi. Where a judgment debt is ceded, s 64 of MCA provides that the
cessionary must be substituted on the record for the original judgment creditor/
cedent before enforcing the judgment. 22 This Court in Fisher v Natal Rubber
Compounders said:23
‘What Nienaber JA said in effect about cession after litis contestatio is that the cessionary stepped
into the shoes of the cedent, but that the cedent did not lose his locus standi until the cessionary
has been substituted . . ..
The cession alone does not transfer the right to prosecute the action to the cessionary. That right
only accrues to the cessionary when it is substituted for the cedent as plaintiff. The subject matter
20 Hippo Quarries (TVL) (Pty) Ltd v Eardley 1992 (1) SA 867 (AD); [1992] 1 All SA 398 (A) at 873E-F. See also
Trust Bank van Afrika Bpk v Eksteen 1964 (3) SA 402 (A).
21 Froman v Robertson 1971 (1) SA 115 (A) at 122E-H.
21 Froman v Robertson 1971 (1) SA 115 (A) at 122E-H.
22 The section reads as follows:
‘64. Execution in case of judgment
Any person who has, either by cession or by operation of law, become entitled to the benefit of a judgment debt may,
after notice to the judgment creditor, and the judgment debtor, be substituted on the record for the judgment creditor
and may obtain execution in the manner provided for judgment creditors.’
23 Fisher v Natal Rubber Compounders (Pty) Ltd [2016] ZASCA 33; 2016 (5) SA 477 (SCA) paras 11-12.
21
of pending litigation can be ceded freely and fully until litis contestatio. Such a right may be ceded
subject to one limitation: the cessionary is not entitled subsequently to pursue concurrent litigation
in its own name. The corollary is that the cedent may continue the existing litigation in its own
name. The cession would not divest the cedent of its locus standi nor vest the cessionary with it
unless the court on application permits the substitution of the parties . . . . On substitution, the
cessionary can pursue the action in its own name.’
[50] There was no evidence, or even a suggestion, that BS ever applied for and was
substituted for BFS as plaintiff and execution creditor in the Verulam court
judgments. The payments that were made by Mr Mothibi to BS can therefore not be
said to have occurred in terms of the Verulam court orders and were not in discharge
of any orders of that court. BFS remained the plaintiff and execution creditor in the
Verulam court orders. There is no scope for a restitution claim against BS.
[51] At best for Gorr, payments made by Mr Mothibi to BS might erroneously have
been believed to be due in terms of the Verulam court orders, but as a matter of law,
the payments to BS could not qualify as performance in terms of the Verulam court
orders which fall to be restituted because the judgments granted in favour of BFS
were void ab initio. Consequently, service of the summons on BS, could not interrupt
the running of prescription of the claims for restitution of what had been performed
pursuant to the void judgments granted in favour of BFS . Mr Mothibi owed the
amounts claimed in terms of the underlying loan agreements. His consents to
judgment admitted that much.
Was rescission of the Verulam court judgments required?
[52] Finally, I am also not persuaded that rescission of the Verulam court
judgments was a prerequisite to the relief claimed by Gorr, assuming that a claim
judgments was a prerequisite to the relief claimed by Gorr, assuming that a claim
based on restitution was otherwise competent against BS. Gorr could simply have
claimed the return of what was paid pursuant to judgments that were void ab initio.
22
One should not confuse the de jure effect of a void act in law, with a situation where
a party might dispute that the particular act is void in law. In the latter instance,
whether the judgment is void , is simply one of the facta probanda in a claim for
repayment of what was performed.
[53] Gorr’s cause of action is not dependent on the rescission of such a void order.
All that is required is that any dispute whether the judgments were void in law, if
this was challenged, had to be determined and the judgments be declared to have no
force and effect ab initio.24 Legal invalidity, and not necessarily rescission, is the
issue. Rescission of the judgments was not required to complete a cause of action
against BS. This would also not offend against s 165 of the Constitution, or violate
the res judicata principle, two points raised by Gorr.
Section 165(5)25 of the Constitution and the res judicata principle.
[54] Section 165(5) of the Constitution provides that an order of a court is binding
on all persons to which it applies . In Municipal Manager OR Tambo District
Municipality and Another v Ndabeni (Ndabeni)26 the Constitutional Court stated that
for an order to be binding, all that is required is that the court in which the order was
made must have had jurisdiction. In this case, the Verulam court did not have
jurisdiction. Section 165(5) is not implicated. The order would in any event only be
24 Nevertheless, if the invalidity of a judgment or order granted by a court lacking jurisdiction is challenged , because
the parties do not agree on the status of the impugned judgment or order, then the judgment or order usually will be
rescinded, as in Travelex Ltd v Maloney [2016] ZASCA 128 para 16.
25 Section 165(5) of the Constitution provides:
‘An order or decision issued by a court binds all persons to whom and organs of state to which it applies.’
26 Municipal Manager OR Tambo District Municipality and Another v Ndabeni [2022] ZACC 3; [2022] 5 BLLR 393
(CC); (2022) 43 ILJ 1019 (CC); 2022 (10) BCLR 1254 (CC); 2023 (4) SA 421 (CC). The Constitutional Court affirmed
in Ndabeni, on the facts of that case, that a court order is binding until it is set aside by a competent court, and requires
compliance, regardless of whether the party against whom the order is granted believes it to be a nullity or not. Where
an organ of state genuinely believes that an order of court is a nullity, then it has a duty in the public interest to pursue
an appeal to correct the illegality. The Constitutional Court drew on the judgments in Department of Transport v
Tasima (Pty) Ltd and Secretary of the Judicial Commission of Inquiry into Allegations of State Capture Corruption
and Fraud in the Public Sector including Organs of State v Zuma. It reiterated various important principles including
that for an order to be binding, all that is required is that the court in which the order was made must have had
jurisdiction.
23
binding on the persons to which it applies. BS, on what has been placed before this
Court, was not a party to the Verulam court orders. The orders did not apply to it.
[55] The doctrine of res judicata is based on the irrebuttable presumption that a
final judgment on a claim submitted to a competent court is correct. It is founded on
public policy, which requires that litigation should not be endless. This Court,
in Prinsloo N O v Goldex 15 (Pty) Ltd,27 explained the nature of the res judicata plea
as follows:
‘. . . The gist of the plea is that the matter or question raised by the other side had been finally
adjudicated upon in proceedings between the parties and that it therefore cannot be raised again.
According to Voet 42.1.1, the exceptio was available at common law if it were shown that the
judgment in the earlier case was given in a dispute between the same parties, for the same relief on
the same ground or on the same cause ( idem actor, idem res et eadem causa petendi (see
eg National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor
Distributors (Pty) Ltd28 . . . and the cases there cited).’29
Are there reasonable prospects of success?
[56] In the final analysis, whether condonation and special leave to appeal should
be granted depends on whether Gorr has established that there are reasonable
prospects of success. In Ramakatsa and Others v African National Congress and
Another,30 this Court held that:
‘. . . The test for reasonable prospects of success postulates a dispassionate decision based on the
facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of
the trial court. In other words, the appellants in th is matter need to convince this Court on proper
grounds that they have prospects of success on appeal. Those prospects of success must not be
27 Prinsloo N O v Goldex 15 (Pty) Ltd [2012] ZASCA 28; 2014 (5) SA 297 (SCA) paras 10-11.
27 Prinsloo N O v Goldex 15 (Pty) Ltd [2012] ZASCA 28; 2014 (5) SA 297 (SCA) paras 10-11.
28 National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd [2000]
ZASCA 159; 2001 (2) SA 232 (SCA) at 239F-H.
29See also Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others [2019] ZACC
41; 2020 (1) SA 327 (CC); 2020 (1) BCLR 1 (CC); 2019 BIP 34 (CC) ( Ascendis) para 111 where it was held ‘[I]ts
strict terms applied when a later dispute involves the same party, seeking the same relief, relying on same cause of
action’ and Boshoff v Union Government 1932 TPD 345.
30 Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31.
24
remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist.’31 (References omitted.)
[57] Gorr, on what is alleged in the record, could not by the service of summons
on BS interrupt the prescription of a claim for the restitution of what Mr Mothibi
performed pursuant to judgments obtained by BFS. Gorr has not established that it
enjoys reasonable prospects of success. This finding is dispositive of the issue of
condonation before the full bench, the condonation sought in this Court, and the
application for special leave to appeal before this Court.
Special leave to appeal
[58] Even if Gorr had prospects of success on appeal, it had not shown something
more to justify special leave to appeal32 being granted. As this Court said in Cook v
Morrison and Another:33
‘The existence of reasonable prospects of success is a necessary but insufficient precondition for
the granting of special leave. Something more, by way of special circumstances, is needed. These
may include that the appeal raises a substantial point of law; or that the prospects of success are so
strong that a refusal of leave would result in a manifest denial of justice; or that the matter is of
very great importance to the parties or to the public.’
[59] As was concluded in Stu Davidson and Sons (Pty) Ltd v Eastern Cape Motors
(Pty) Ltd:34
‘There is no reason why an appellate court should determine any matter arising from the first appeal
further. Again, it is trite that where there has been no manifest denial of justice, no important issue
31 Ibid para 10.
32 P A F v S C F [2022] ZASCA 101; 2022 (6) SA 162 (SCA) para 24.
33 Cook v Morrison and Another [2019] ZASCA 8; [2019] 3 All SA 673 (SCA); 2019 (5) SA 51(SCA) para 8. See
Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) at 561 E -F; Stu
Davidson and Sons (Pty) Ltd v Eastern Cape Motors (Pty) Ltd [2018] ZASCA 26. See also: Van Wyk v S ; Galela v
S [2014] ZASCA 152; 2015 (1) SACR 584 (SCA) para 21.
34 Stu Davidson and Sons (Pty) Ltd v Eastern Cape Motors (Pty) Ltd (260/2017) [2018] ZASCA 26 (23 March 2018)
para 19.
25
of law to be determined, and the matter is not of special significance to the parties, and certainly
not of any importance to the public generally, special leave should not be granted.’
Given that there are no reasonable prospects of success in the contemplated appeal,
much less special circumstances, the application does not meet the standard of
‘exceptional circumstances’ . There will be no manifest denial of justice if the
application for special leave is dismissed.
Conclusion
[60] The full bench was correct in refusing condonation. It was not in the interests
of justice to grant condonation. There are no special circumstances which would
justify the grant of special leave to appeal to this Court.
Order
[61] The following order is granted:
The applications for condonation and for special leave to appeal are dismissed with
costs.
______________________
P A KOEN
JUDGE OF APPEAL
26
Appearances
For applicant: H P van Staden
Instructed by: Allis Attorneys, Johannesburg
EDJ Attorneys Inc., Bloemfontein
For respondent: D Prinsloo
Instructed by: ODBB Attorneys, Johannesburg
McIntyre van der Post Attorneys, Bloemfontein.