REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024 / 092117
No
o other Judges: No
Q3f o3[ 2o2b.
Date
In the mater between:
DIAMOND PANEBEATERS AND TOWING CC Applicant.
and
K CARRIM COMMERCIAL PROPERTIES (PTY) LTD Respondent
Heard: 19 November 2025
Delivered: 23 March 2026
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JUDGMENT
PILLAY,AJ
Introduction
[1] The applicant seeks an order, rescinding and setting aside the judgment and
order granted against it by Wentzel AJ on 4 December 2024 ("the order") with
respect to arrear rental and expenses payable by the applicant to the
respondent in terms of an agreement of lease concluded between the parties.
The said judgment and order were granted against the applicant by default
because the applicant did not enter an appearance to defend the action
instituted by the respondent against it.
[2] The application for the rescission and setting aside of the order is brought
pursuant to the provisions of rule 31 (2)(b) of the Uniform Rules of Court. The
latter rule provides as follows:
"A defendant may within 20 days after acquiring knowledge of such judgment apply to
court on notice to the plaintiff to set aside such judgment and the court may, upon good
cause shown, set aside the default judgment on such terms it deems fit".
[3] The primary issue to be determined is whether the applicant demonstrated
good cause for the order to be rescinded and set aside.
Background
[4] On 5 February 2024, the applicant and the respondent concluded an agreement
of lease in respect of a property situated in the central business district of
Pretoria. The lease would endure for a period of five years, and the applicant
leased the premises for the purpose of conducting a panel beating business.
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[5] The agreement of lease was signed and concluded on behalf of the applicant
by Ms Selinah Maiphephi Mtilene, who at the time was the sole member of the
applicant.
[6] The applicant took occupation of the leased premises in March 2024.
[7] On 15 August 2024, the respondent caused a summons commencing action to
be issued out of this court. The respondent claimed payment of the arrear rental
and expenses, owing to it in terms of the agreement of lease. The summons
commencing action was served upon the applicant at the leased premises on
21 August 2024. The summons commencing action was served personally
upon Ms Mtilene.
[8] Having failed to enter an appearance the defend the action, the respondent
applied for default judgment, which was granted on 4 December 2024.
[9] On 11 November 2024, the applicant, through its attorneys of record, addressed
a letter to the respondent in which the applicant alleged that the respondent
had breached the agreement of lease and called upon the respondent to rectify
the breach. Thereafter, the applicant, on 20 November 2024, informed the
respondent that it had elected to cancel the agreement of lease and had
vacated the leased premises. In reply, the respondent denied being in breach
of the agreement and advised the applicant that it had taken default judgment
against the applicant for the arrear rental and expenses.
The applicant's submissions
Wilful default
[10] The applicant admits that the summons commencing action was served upon
Ms Mtilene. Ms Mtilene is described by the applicant as an employee, who was
previously the sole member of the applicant and who had resigned her position
on 28 May 2024. Ms Mtilene, the applicant submits, was replaced by the
husband, Mr Mtilene, as the sole member of the applicant. In the replying
affidavit, the applicant provided this court with a copy of the Win Deed report by
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the Companies and Intellectual Property Commission, which confirmed the
aforesaid.
[11] The applicant proceeds on to submit that Mr Mtilene and Ms Mtilene's
relationship, at the time of the service of the summons commencing action, was
strained and Ms Mtilene did not immediately bring the summons commencing
action to the attention of Mr Mtilene and the applicant. Instead, Ms Mtilene
placed a copy of the summons commencing action in her laptop bag. The
applicant states that Ms Mtilene intended bringing the summons commencing
action to the attention of Mr Mtilene, but forgot to do so.
[12] Further, the applicant submits that the parties had exchanged correspondence
after the service of the summons commencing action and before default
judgment was granted against the applicant. In this exchange of
correspondence, the respondent failed to inform the applicant of the pending
legal proceedings.
[13] The thrust of the applicant's argument is that it was not in wilful default of
defending the action because the summons commenting action was not
brought to its attention by Ms Mtilene and the respondent did not inform the
applicant of the pending legal proceedings after the service of the summons
commencing action.
Bona fide defence
[14] The applicant submits that it has a bona fide defence to the respondent's claim
because:
[14.1] The respondent was aware that the premises was to be utilised for the
conducting of a panel beating business, which required 100 AMPS 3
phase power to be connected to the DB board. In terms of the agreement
of lease, the lessor had undertaken to ensure the connection of the100
AMPS 3 phase power to the DB board. Even though there was no time
period stipulated in the agreement of lease, by the time that the applicant
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had vacated the premises, the respondent had not completed the
undertaking. The respondent failed to settle an existing municipal
account that the City of Tshwane, resulting in the electricity to the
premises being terminated on different occasions. The cumulative result
was that the applicant was unable to conduct its business effectively.
[14.2] The respondent failed to give the applicant free beneficial occupation of
the premises for the month of February 2024, as stipulated in the
agreement.
[14.3] The respondent failed to repair a leaking water pipe, which resulted in
the applicant being overcharged respect of the water usage. The
applicant had disputed the charges and denied liability respect of
charges for water usage.
[15] The applicant submits that as a result of the aforesaid, it cancelled the
agreement and was entitled to a refund of the deposit.
The respondent's submissions
Wilful default
[16] The respondent submits that the summons commencing action was properly
served in terms of rule 4 of the Uniform Rules of Court. This is not denied that
the applicant.
[17] The respondent contends that the applicant improperly attempts to diminish the
position and the authority of Ms Mtilene by stating that she is only an employee
who is not involved in the decision-making regarding litigious matters involving
the applicant. · In support of this contention, the respondent refers to a
newspaper article (published after Ms Mtilene had resigned as a member of the
applicant) in which Ms Mtilene is described as the managing director of the
applicant. Also, the respondent refers to emails exchanged between the parties
before and after the service of the summons commencing action, and before
and after the resignation of Ms Mtilene as a member of the applicant. These
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emails deal specifically with the issues that arise from the agreement of lease
concluded between the parties. Further, the emails from the applicant are sent
by Ms Mtilene as the author of the emails and representative of the applicant.
The emails addressed by the respondent to the applicant are addressed
specifically to Ms Mtilene.
[18] Finally, the respondent argues that the applicant's version as to why it was
unaware of action instituted by the respondent is improbable because the
applicant states that Ms Mtilene did not bring the summons commencing action
to the attention of Mr Mtilene because of the acrimony, which existed between
them at the time and at the same time the applicant states that Ms Mtilene did
the to bring the summons commencing action to the attention of Mr Mtilene, but
had forgotten to do so.
Bona tide defence
[19] The respondent submits that after it had purchased the premises in 2022, the
premises was vandalised and stripped of all the electrical infrastructure . As a
result, there was no electricity usage at the premises. Notwithstanding, the City
of Tshwane Metropolitan Municipality incorrectly levied charges upon the
respondent for electricity usage from August 2023. The respondent disputed
the charges. Nevertheless, the respondent submits, the applicant was made
aware of the aforesaid situation during the negotiations, which preceded in the
conclusion of the agreement of lease.
[20] The respondent submits that after the conclusion agreement of lease and prior
to the applicant taking occupation premises, the respondent ensured that the
premises was fully rewired and fit for the purpose of conducting a panel beating
business. The respondent also appointed UMFA utility management to ensure
that the electricity metering and billing at the premises was correctly done.
Further, Mr Steven Anderson of UMFA confirmed in May 2024 that there was a
400 AMP 3 phase power supply to the premises and as a result the respondent
400 AMP 3 phase power supply to the premises and as a result the respondent
had complied with its undertaking in terms of the agreement of lease.
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[21] With regard to the charges in respect of the water usage, the respondent
submits that the water leak was only determined to be an internal leak by City
of Tshwane Metropolitan Municipality on 7 June 2024. The respondent argues
that in terms of the agreement of lease the applicant was obliged to repair an
internal water leak and the respondent cannot be held liable for the expenses
incurred as a result of the water leak because of the applicant's failure to comply
with the agreement of lease. The respondent states that notwithstanding the
terms of the agreement of lease, it fixed the leak at its own expense and also
initiated a process of attempting to resolve the charges levied by the City of
Tshwane Metropolitan Municipality together with the applicant. The applicant
did not respond to the applicant's proposals to meet the City of Tshwane
Metropolitan Municipality to resolve these issues. Instead, the respondent
argues, the applicant elected to cancel the agreement and vacate the premises.
[22] The respondent argues that the applicant's version that the respondent was in
breach of the contract from the outset is improbable because the respondent
did not issue any letter of demand for a period of nine months, after which the
applicant resorted to place the respondent in mora and thereafter cancel the
agreement.
[23] In addition, the respondent submits that the applicant does not have a bona fide
defence because the applicant's complaints are rendered invalid by the terms
of agreement of lease. In particular, the respondent refers to the following
clauses in the agreement of lease:
[23.1] Clause 4.1, which provides that the applicant shall be liable for the
payment of rent without deduction, retention, remission or set off on any
grounds.
[23.2] Clause 17 .1, which states that the applicant is liable for all municipal
charges, including electricity and water.
[23.3] Clause 22.1, which states that the lessee shall be deemed to have
[23.3] Clause 22.1, which states that the lessee shall be deemed to have
acknowledged that the water pipes and electrical fittings etcetera are in
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a good state of repair and undertakes to care for and maintain and repair
this infrastructure, at the applicant's expense, during the duration of the
lease.
[23.4] Clause 27.3, which states that the applicant may not withhold any
payments to the respondent by reason of the premises being any
defective condition or state of disrepair.
[23.5] Clause 28, which states that the applicant shall not have a c laim for
damages or be entitled to cancel the agreement of lease or receive a
reduction or omission of the rental payable by reason of the fact that the
services have been interrupted or have failed.
Point in limine
[24] The applicant took issue with the fact that the answering affidavit was
improperly commissioned and attested to because, the applicant submitted, the
commissioner of oaths had an interest in the respondent's business.
(25] The respondent thereafter filed the answering affidavit, which was
commissioned by a member of the South African Police Services together with
an application for the conditional condonation of the late filing of the answering
affidavit. The content of the answering was exactly the same. In the latter
application, the respondent explained that previous commissioner of oaths did
not have interest in the respondent's business and therefore he was entitled to
act as a commissioner of oaths in commissioning the affidavit. The applicant
did not oppose the application, or persist with the point in limine.
The applicable law
[26] The applicant brings this application for rescission pursuant to the provisions of
rule 31(2)(b). The rule requires the applicant to demonstrate "good cause" to
succeed in its application. The court has a wide discretion in evaluating "good
cause".
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(27] In Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (0) page 476-477, Brink J, in
evaluating the meaning of "sufficient cause" states that an applicant should
comply with the following requirements to establish sufficient cause:
"{a) He must give a reasonable explanation for his default. If it appears that his
default was woeful or that it was due to gross negligence the Court should not
come to his assistance.
{b) His application must be bona tide and not made with the intention of merely
delaying the plaintiff's claim.
(c) He must show that he has a bona tide defence to the plaintiff's claim. It is
sufficient if he makes out a prima facie defence in the sense of setting out
averments which, if established at trial, would entitle him to the relief asked for.
He need not deal fully with the merits of the case and produce evidence that
the probabilities are actually in his favour."
(28] In Cheffy v Law Society, Transvaal 1985 (2) SA 756 (A) page 765A, the Court
expressed the view that "sufficient cause" or "good cause" defied precise or
comprehensive definition. Miller JA stated:
"But it is clear that in principle and in the long-standing practice of our Courts two
essential elements of "sufficient cause" for rescission of the judgment by default are:
(i) that the party seeking relief must present a reasonable and acceptable
explanation for his default; and
(ii) that on the merits such party has a bona tide defence which, prima facie,
carries some prospect of success."
[29] Miller JA, in Cheffy page 765 C-E, stated that both requirements must be met.
Miller JA stated:
"It is not sufficient if only one of these two requirements is met; for obvious reasons a
party showing no prospect of success on the merits will fail in an application for
rescission of a default judgment against him, no matter how reasonable and convincing
the explanation of his default. And ordered judicial process would be negated if, on the
the explanation of his default. And ordered judicial process would be negated if, on the
other hand, a party who could offer no explanation of his default other than his disdain
of the Rules was nevertheless permitted to have a judgment against him rescinded on
the ground that he had reasonable prospects of success on the merits."
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[30] The Constitutional Court in Zuma v Secretary of the Judicial Commission of
Enquiry into Allegations of State Capture, Corruption and Fraud in the Public
Sector including Organs of State 2021 JDR 2069 (CC); 2021 BCLR 1263 (CC)
accepted the aforementioned principles espoused in Chetty.
[31] Further, the Constitutional Court quoted, with acceptance, the following
passage from Chetty page 762C:
"even if the [applicant's] case was that he was ignorant of the proceedings which had
been instituted against him, he would have been obliged to show a supremely just
cause of ignorance, free from all blame whatsoever"
[32] Finally, in determining whether "good cause" has been established, Miller JA in
Chetty p 767 I - 768 C, stated that "the circumstance that there may be a reasonable or
even good prospects of success on the merits would satisfy only one of the essential
requirements for rescission of a default judgment. It may be that in certain circumstances, when
the question of the sufficiency or otherwise of a defendant's explanation for his being in default
is finely balanced, the circumstance that his proposed defence carries reasonable or good
prospects of success on the merits might tip the scale in his favour in the application for
rescission. But this is not to say that the stronger the prospects of success the more indulgently
will the Court regard the explanation of the default. An unsatisfactory and unacceptable
explanation remain so, whatever the prospect of success on the merits. In the light of the finding
that the appellant's explanation is unsatisfactory and unacceptable it is therefore, strictly
speaking, unnecessary to make findings or to consider the arguments relating to the appellant's
prospects of success." The Constitutional Court accepted and applied the latter
principle in Zuma.
Has the applicant made out a case for rescission?
[33] The propriety of the service of the summons commencing action upon Ms
[33] The propriety of the service of the summons commencing action upon Ms
Mtilene and consequently the applicant is not in issue between the parties.
[34] The applicant contends that it is not in wilful default because Ms Mtilene elected
not to bring the summons commencing action to the attention of Mr Mtilene (the
sole member of the applicant at the relevant time) because of the acrimony
(arising from the divorce proceedings between them), which existed between
Mr and Ms Mtilene. In reply to the answering affidavit, the Mr Mtilene states that
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he and Ms Mtilene, "subsequent to the service of the summons, decided to pursue other
alternatives in an attempt to rescue our marriage". Mr Mtilene, on behalf of the applicant,
does not present any evidence as to when the relationship between the parties
improved and what was the nature of the relationship after the Mr and Ms
Mtilene had decided to "rescue" their marriage that would have prevented Ms
Mtilene from continuing to withhold the summons commencing action from him.
[35] Further, Ms Mtilene was previously the sole member of the applicant. She
concluded the agreement of lease on behalf of the applicant. She represented
the applicant in discussions with the respondent about the agreement of lease
prior to and after she was replaced as the sole member of the applicant by Mr
Mtilene. She described herself as the managing director of the applicant. It is
patent that Mr and Ms Mtilene had a personal relationship and business
relationship relating to the applicant. There is no explanation offered by the
applicant as to why Ms Mtilene did not bring the summons commencing action
to the attention of Mr Mtilene or why the applicant did not defend the matter for
a period of four months after the relationship between Mr and Ms Mtilene had
improved.
[36] Moreover, after the service of the summons commencing action upon Ms
Mtilene, she constantly communicated to the respondent, on behalf of the
applicant, about the matters which eventuated in the applicant cancelling the
agreement of lease and also the matters, which form the basis of the judgment
obtained by the respondent against the applicant. The applicant offers no
explanation, why during this period and with the issues in dispute being in the
forefront of the relationship between the applicant and the respondent, Ms
Mtilene did not bring the summons commencing action to the attention of Mr
Mtilene and why the applicant remained in default. This lack of explanation is
Mtilene and why the applicant remained in default. This lack of explanation is
exacerbated by the fact that approximately one month prior to judgment being
granted against the applicant, the applicant consulted its attorneys of record
about the very issues, which form the basis of the action between the
respondent and the applicant. These consultations eventuated in the applicant
cancelling the agreement of lease. I find it improbable, that in these
circumstances, Ms Mtilene would not have brought the summons commencing
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action to the attention of Mr Mtilene. I also find it improbable that Mr or Ms
Mtilene would not have brought the summons commencing action to the
attention of the applicant's attorneys of record. It is more probable that they had
made an election not to bring it to the attention of the applicant's attorneys of
record.
[37] In parallel to the previous explanation, the applicant contends that it was not in
wilful default because Ms Mtilene placed the summons commencing action in
her laptop bag and had forgotten to bring it to the attention of Mr Mtilene. I am
of the view that this explanation is irreconcilable with the previous explanation
as the previous explanation suggests that Ms Mtilene had no intention of
bringing the summons commencing action to the attention of Mr Mtilene
because of the acrimony, which existed between them at the time.
[38] Also, the correspondence attached to the application evinces that Ms Mtilene
constantly communicated with the respondent via email after the service of the
summons commencing action. It is probable that these emails or some of these
emails would have been sent from her laptop. It is also probable that during the
period of four months before judgment was granted against the applicant, Ms
Mtilene would have seen the summons commencing action in her laptop bag,
particularly when accessing her laptop to the send and receive emails. At the
very least, corresponding with the respondent on the issues arising from the
agreement of lease would have triggered a memory in respect of the summons
commencing action.
[39] Finally, the applicant contends that Ms Mtilene is merely an employee and the
applicant cannot be held in wilful default by her failure to bring the summons
commencing action to the attention of Mr Mtilene and the applicant. Once again,
this argument is irreconcilable with the argument that Ms Mtilene would have
brought the summons commencing action to the attention of Mr Mtilene and the
brought the summons commencing action to the attention of Mr Mtilene and the
applicant, but for the acrimony which existed between Mr and Ms Mtilene,
alternatively the fact that she had forgotten to do so. Moreover the summons
commencing action was properly served upon the applicant.
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[40) The applicant's suggestion that Ms Mtilene is a mere employee does not hold
muster. Ms Mtilene was the previous sole member of the applicant and had
concluded the agreement of lease with the respondent on behalf of the
applicant. At the same time, Ms Mtilene described herself as the managing
director of the applicant and represented the applicant in all the communication
with the respondent relating to the matters arising from the agreement of lease.
[41) In the circumstances, I find that the applicant has failed to provide a plausible
or acceptable explanation for its default. In the light of this finding, as stated in
Chetty and confirmed in Zuma - "it is therefore, strictly speaking, unnecessary to make
findings or to cons ider the arguments relating to the appellant's prospects of success" 1.
[42) Notwithstanding the aforesaid, in the interests of fairness I will briefly consider
the merits of the defence raised by the applicant.
[43) In argument, the applicant posited that it would raise the defence of exceptio
non adimpleti contractus, should it be granted the chance to file a plea. The
applicant did not provide any rely upon the defence in the application, nor did
the applicant provide any factual basis for this defence.
[44] The applicant argues that the respondent did not comply with the agreement of
lease because the premises did not have a 100 AMP 3 phase connection to the
DB board, which the respondent undertook to install. This electrical connection,
the applicant argues, was crucial to the conducting of the panel beating
business. In answer, the respondent provided a report by Mr Anderson,
reported that as at May 2024, the premises was fitted with a 400 AMP 3 phase
power supply, which exceeded the power supply that the respondent had
undertaken to install at the premises. The applicant rejected the report of Mr
Anderson because he is not a qualified electrician. The applicant conceded that
the agreement of lease did not provide any time period within which the
the agreement of lease did not provide any time period within which the
respondent was obliged to complete this installation. Notwithstanding the
applicant's protestations, the applicant did not raise this issue from the date of
1 Chatty supra 768C.
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its occupation in March 2024 until November 2024. Throughout this entire
period the applicant conducted its panel beating business. It is highly unlikely,
on the applicant's own version, that the applicant would have been able to
conduct the panel beating business had the electricity supply not been as
required by the applicant. On the contrary, in the newspaper reports in August
2024 and October 2024, Ms Mtilene is celebrated for conducting a panel
beating business.
[45] The applicant argues that as a result of a water leak, the applicant was
overcharged in respect of the water usage. The respondent argued that the leak
was repaired in June 2024. Notwithstanding, agreement of lease enjoins the
applicant to provide the respondent, within seven days of occupation, with a list
of defects, failing which the applicant is deemed to have acknowledged that the
water pipes are in good state of repair. There is no indication that the applicant
provided the respondent with a list of defects. Moreover, the agreement of lease
provides that the applicant would not be entitled to withhold any payment
because of the premises being in a defective condition or state of disrepair. The
lease also provides that the applicant is liable for municipal charges including
charges relating to the usage of water and electricity.
[46] Finally, the applicant argues that it was not given the three beneficial occupation
of the premises for the month of February 2024. The applicant states that it was
only allowed to take occupational premises in March 2024. There is no
indication that the applicant complained about not having occupation for the
month of February 2024 prior to the application for rescission. There is also no
indication as to what damages or losses the applicant suffered as a result of
not being allowed to take occupation of the premises during the month of
February 2024. Consequently, the applicant does not make a case as to why it
would have a defence to the respondent's claim.
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Conclusion
[47] In the final analysis, I am of the view that the applicant has not discharged the
onus of persuading this court that it was not in wilful default or that it has a bona
fide defence, which prima facie carries some prospect of success to the
respondent's claim.
[48] In the circumstances I make the following order:
1. The application is dismissed.
2. The applicant is ordered to pay the respondent's costs on a party and party
scale, which costs shall include the costs of counsel on Scale B.
Appearances:
For the applicant
Instructed by
For the respondent
Instructed by
T. Pillay
Acting Judge of the High Court of South Africa
Gauteng Division, Pretoria
N S Nxumalo
Tshabalala Attorneys
JBW Mouton
Sharief & Associates Inc