THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO. 2023 – 132715
In the matter between:
KEVIN JOHN DEAN APPLICANT
and
NEDBANK LTD RESPONDENT
In re:
NEDBANK LTD PLAINTIFF
and
KEVIN JOHN DEAN DEFENDANT
___________________________________________________________________
JUDGMENT
___________________________________________________________________
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
07/04/2026
............................. ..............................................
2
BHOOLA AJ,
Introduction
[1] This is an application for leave to appeal against the judgment granted by this
Court on 20 February 2026, refusing the applicant’s rescission of a default judgment
obtained by the respondent against him.
[2] The notice of appeal was filed on 13 March 2026, within the prescribed 15 court
days after judgment, in terms of Rule 49(1)(b) of the Uniform Rules of Court and is
therefore timeous.
[3] The applicant’s heads of argument and notice of appeal raise various grounds
of appeal, which may be encapsulated as follows:
(i) The court erred in finding that service at the applicant’s domicilium
citandi et executandi was valid.
(ii) The Court erred in finding that the applicant failed to establish good
cause for rescission.
(iii) The Court erred in finding that the applicant did not have a substantial
defence, in particular in relation to the defence of rectification having been
pleaded inadequately.
(iv) The Court erred in finding that the default was self- created.
(v) The Court misapplied the law relating to rectification and the effect of
non- variation and the entire agreement clauses.
[4] Before considering and addressing the merits, I set out the legal framework for
leave to appeal.
3
The test for leave to Appeal
[5] Section 17(1)(a)(i) of the Superior Court Act1 provides that leave to appeal may
only be granted if the appeal “would” have a reasonable prospect of success. The test
is now more stringent as was confirmed in S v Smith.2
[6] Section 17 (1)(a)(ii) requires further consideration of whether there is some
other compelling reason why the appeal should be heard , such as conflicting
judgments or issues of public importance.3
[7] The applicant conceded in oral argument that the test under section 17(1)(a)(i)
is relevant, and although he acknowledged and conceded that section 17(1)(a)(ii) also
forms part of the tes t, he made no submissions in that regard. The proper approach
requires consideration of both provisions.4
Procedural Observation
[8] It is prudent to mention the absence of a replying affidavit at the outset.
(i) The applicant did not file a replying affidavit in the rescission
proceedings.
(ii) In oral argument, he conceded that he denied all allegations but failed to
place any evidence before the Court to contradict the respondent’s version.
(iii) In terms of the Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd 5 rule, a bare denial in the absence of a replying affidavit does not create a
genuine dispute of fact, and the respondent’s version must be accepted.
1 Superior Court Act 10 of 2013
2 S v Smit 2012 (1) SACR 567 (SCA)
3 Fair Trade Independent Tobacco Association v President of the Republic of South Africa [2020] JOL 47858
(GP) para 6; Caratco v Independent Advisory 2020 ZASCA 17, 2020 (5) SA 35 (SCA), para 2
4 S v Smit 2012 (1) SACR 567 (SCA) para 7
5 Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A)
4
(iv) This procedural aspect is highlighted for the attention of the Appellate
Court. Importantly, it does not materially affect the outcome of this application,
which turns on the applicant’s failure to establish good cause for rescission, and
the absence of a bona fide defence with prospects of success.
Evaluation of the Grounds of Application for leave to Appeal
Service at domicilium citandi et executandi
[9] Service was effected at the applicant’s chosen domicilium in accordance with
rule 4(1)(a)(iv) of the Uniform Rules of Court. The applicant acknowledged during
oral argument that he failed to notify the respondent of a change of his address. The
Court confirmed that there was valid service at the domicilium despite applicant’s
argument that Ubuntu’s address on the offer of banking facilities letter , should have
been used. This could not be accepted as the letter of offer was addressed to the
company and not the surety. The applicant’s failure to notify respondent of his changed
address rendered the default self-created.6
[10] Service at the chosen domicilium citandi et executandi remains valid until
formally changed, and the debtor bears the risk of failing to notify the creditor of a new
address.7 Negligence or inattention does not constitute good cause .8 Moreover,
rescission requires more than mere promptness; the explanation must be reasonable
and not self -created.9 The authorities in this paragraph reinforce the correctness of
the finding that the applicant’s default was self-created and that no bona fide defence
with prospects of success has been shown.
Default Judgment and Failure to show Good Cause
6 Rossouw v Firstrand Bank Ltd 2010 (6) SA 439 (SCA); Qubeka v FirstRand Bank Ltd t/a WesBank
(GJ, Case No. 2019/23591) [2021] ZAGPJHC 658
7 (Rossouw v Firstrand Bank Ltd 2010 (6) SA 439 (SCA) at paras [24]–[27])
8 (Colyn v Tiger Food Industries Ltd 2003 (6) SA 1 (SCA) at paras [9]–[11])
8 (Colyn v Tiger Food Industries Ltd 2003 (6) SA 1 (SCA) at paras [9]–[11])
9 (Ferris v FirstRand Bank Ltd 2014 (3) SA 39 (CC) at paras [13]–[15])
5
[11] The applicant explained that he acted promptly upon learning of the judgment,
however, his default arose from his failure to update his domicilium address.
[12] In terms of rules 31(2)(b), 32 and of the Uniform Rules of Court, as well as the
common law principles regulating rescission, the applicant was required to show:
(i) a reasonable explanation for the default.
(ii) the existence of a bona fide defence with prospects of success.
(iii) that he acted within a reasonable time.10
[13] Rule 42(1)(a) of the Uniform Rules which permits rescission where a judgment
erroneously sought or granted in the absence of a party. This ground was not relied
upon in the present case.
[14] Although the applicant acted promptly, his explanation does not overcome the
fact that the default was self – created.11
Substantial Defence and Rectification inadequately pleaded
[15] The applicant contends that the 2022 suretyship was intended to secure only a
temporary overdraft facility and not the full obligations of the company. He relies on
rectification and cites Leyland SA (Pty) Ltd v Rex Evans Notice (Pty) Ltd 12 (Leyland).
[16] The respondent points out that the suretyship is clear and unambiguous , the
non – variation (clause 13) and the “whole agreement” clause s preclude the reliance
10 Chetty v Law Society Transvaal 1985(2) SA 756(A), Colyn v Tiger Food Industries Ltd 2003 (6) SA 1 (SCA)
11 Colyn v Tiger Food Industries Ltd 2003 (6) SA 1 (SCA), Ferris v FirstRand Ltd 2014(3) SA 39 (CC),
Rossouw v FirstRand Ltd 2010 (6) SA 439(SCA)
12 Leyland SA (Pty) Ltd v Rex Evans Notice (Pty) Ltd 1980 (4) SA 2071(W)
6
on extrinsic evidence which has the effect of contradicting, altering or varying such
agreement is inadmissible and therefore this defence would not succeed.
[17] There was no contemporaneous documents, emails, or correspondence
supporting the applicant’s contention. In fact, the offer of banking facilities letter does
not contradict the suretyship agreement but substantiates the suretyship agreement.
[18] For a rectification claim to succeed:
(i) the contract must be reduced to writing.
(ii) there must be a common intention of the parties at the time of the
signing.
(iii) the written document must not reflect that intention due to mutual
mistake.13
[19] In this matter, there is no evidence of a mutual mistake. The applicant has not
exhibited a bona fide defence that would succeed at trial . The authorities such as
Saphula v Nedcor, 14 and Lodhi 2 Properties Investment ZASCA,15 and the principles
on non – variation clauses support this conclusion.
[20] The applicant submitted that the Court erred in not ruling on Leyland. While
Leyland, confirms that rectification is not precluded merely because the written
agreement contains a non – variation or whole agreement clause , the applicant has
not pleaded or established a prima facie case for rectification. Therefore, while Leyland
remains good law, it was unnecessary to make a specific ruling on it, as the applicant’s
pleadings and supporting evidence are insufficient to establish a prima facie case for
rectification.
13 Brisley v Drotsky 2002 (4) SA1 (SCA)
14 Saphula v Nedcor 1999(2) SA 76.
15 Lodhi 2 Properties Investment ZASCA 2097 (6).
7
Conclusion
[21] On a consideration of the grounds of appeal and the requirements under the
Uniform Rules as well as at Common law:
(i) The service was validly effected at the chosen domicilium et executandi,
and the default was consequently self – created.
(ii) The default judgment was regularly obtained by way of motion
proceedings and cannot be characterised as erroneously granted. 16
(iii) The suretyship defence discloses no prospects of success, and the
rectification claim is not supported by evidence.
(iv) The applicant has not satisfied the requirements for leave to appeal
under section 17(1)(a)(i) and (ii) of the Superior Courts Act.
[22] The applicant has not established a defence that would have a reasonable
prospect of success and has also not established a compelling reason for this court to
grant leave to appeal.
Costs
[23] Although the suretyship provides for costs on an attorney and client scale and
the parties agree on such costs, I am not persuaded that a punitive costs order is
warranted in the present application. In the exercise of my discretion, costs will follow
the result on the ordinary scale.
Order
[24] In the result, I make the following order:
(i) Leave to appeal is refused.
16 Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd [2007] ZASCA 85; 2007 (6)
SA 87 (SCA), para 27.
8
(ii) The applicant is to pay the costs of the application.
___________________________
CB. BHOOLA
Acting Judge of the High Court
Gauteng Division of the High Court, Johannesburg
9
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected on 7 April 2026 and is handed down electronically by circulation to the
parties/their legal representatives by e mail and by uploading it to the electronic file of
this matter on CaseLines. The date for hand-down is deemed to be 7 April 2026.
APPEARANCES
Date of hearing: 24 March 2026
Date of judgment: 07 April 2026
For the applicant: Adv. SLP Mulligan
(Tel: 082 452 3897, email smacky@absamail.co.za)
Instructed by Nixon and Collins Attorneys
(Tel: 012 880 2312, email: law@nixcol.co.za)
For the first respondent: Sekgothadi Kabelo:
(Tel. 072 456 0046, email: sekgothadi@kw.co.za )
Instructed by: KWA Attorneys
(Tel: 011 728 7728, email: kim@kw.co.za )