was granted by default after summons had been served and no notice of intention
to defend had been delivered.
[2] The applicant contends that the judgment was “erroneously sought or
erroneously granted” because, so he says, the particulars of claim did not
disclose complete causes of action, the claims were not competently pursued
under rule 31(5), and the judgment was granted in his absence. He further says
that, although summons was served at his former attorneys’ office, the summons
was overlooked and only later brought to his attention.
[3] The respondents oppose the application. Their case is that service was effected
exactly where the applicant himself had instructed process to be served, that the
applicant had more than one opportunity to defend the action before judgment
was entered, that the summons disclosed triable causes of action, and that the
rescission application was, in any event, brought after an unreasonable delay.
[4] The underlying dispute concerns an immovable property transaction. The first
plaintiff was the seller in a representative capacity. The second plaintiff was the
estate agency that marketed the property, and the third plaintiff was the
conveyancer appointed to attend to the transfer. The applicant was the
purchaser. These matters are either common cause or not genuinely disputed
on the papers.
[5] The applicant paid a deposit of R250 000 and transfer -related amounts into the
third plaintiff’s trust account during July 2023. He thereafter took early occupation
and, according to his version, discovered serious structural defects when
contractors lifte d carpets and exposed substantial cracking. He says he then
elected to cancel the agreement and demanded repayment of what he had paid.
[6] On 22 December 2023 the applicant’s former attorney addressed a letter to the
third plaintiff stating, amongst other things, that the applicant had elected to
cancel and that processes should be served on his attorneys. The respondents’
cancel and that processes should be served on his attorneys. The respondents’
attorneys responded the same day, setting out the contractual basis on which
they intended to hold the applicant liable.
[7] Combined summons was issued on 28 March 2024 and was served on 5 April
2024 at the office of the applicant’s former attorneys, on one Elise Engelbrecht.
The applicant does not dispute that service occurred there. His complaint is
rather that the summons was not attended to.
[8] The applicant’s own chronology records that on 13 May 2024 he consulted with
his former attorney and gave instructions for proceedings to be instituted to
recover the deposit and transfer costs. The default judgment was granted on 28
May 2024. According to the applicant, he became aware of the judgment during
mid-July 2024. Yet the rescission application was launched only on 18 March
2025.
[9] Rule 42(1)(a) empowers a court to rescind or vary an order or judgment
“erroneously sought or erroneously granted in the absence of any party affected
thereby”. The rule is aimed at procedural error. It is not a substitute for an appeal,
nor a vehicle by which a litigant who elected not to participate may revisit the
merits because he now wishes he had defended the case. This much is clear
from Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd ,1
Rossitter v Nedbank Ltd 2, and 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 3, all relied on in the respondents’ heads of
argument.
[10] The authorities also make plain that a judgment is not “erroneously granted”
merely because the defendant later discloses a defence on the merits. The
enquiry is whether, on the record as it stood when the judgment was granted,
there existed a fact or proc edural impediment which, had the registrar or court
been aware of it, would have precluded the granting of judgment. That is the ratio
reflected in Bakoven Ltd v GJ Howes (Pty) Ltd,4 and Kgomo v Standard Bank of
South Africa Ltd. 5
1 2007 (6) SA 87 (SCA)
2 2015 ZASCA 196
3 2021 (11) BCLR 1263 (CC)
4 1992 (2) SA 466 (E)
5 2016 (2) SA 184 (GP)
[11] The requirement that the judgment be granted “ in the absence ” of the affected
party does not assist a litigant whose absence was self -created. As the
Constitutional Court explained in Zuma, rule 42 exists to protect a litigant whose
presence was precluded, not one whose absence was elected. Likewise,
Rossitter made it plain that where a litigant was notified and afforded sufficient
opportunity to participate, an election not to do so does not convert an otherwise
regular judgment into an erroneous one.
[12] Although rule 42 prescribes no fixed time period, the application must still be
brought within a reasonable time. The respondents rely on Matseke v Maine6and
Madiro v Madibeng Local Municipality and Others7 in support of that proposition.
That is correct in principle. Delay is not automatically fatal, but it bears materially
on fairness, finality, and whether the court should exercise its power in the
applicant’s favour.8
[13] In the present matter the summons was served at the office of the applicant’s
chosen attorneys, exactly in accordance with the direction previously given by
the applicant’s own attorney in the letter of 22 December 2023. That is not merely
substantial compliance. It is compliance in the very manner the applicant had
requested.
[14] The applicant’s explanation is that the summons was overlooked in the file and
that, when he consulted on 13 May 2024 about launching his own proceedings,
his attorney did not notice it. That explanation is thin. It is unsupported by
confirmatory affidavits from all material role-players, including the former attorney
who received service and the attorney said to have overlooked the summons.
The deponent to the answering affidavit points out, correctly in my view, that no
coherent explanation is given as to why no step at all was taken between
December 2023 and May 2024 to protect the applicant’s position, despite the
obvious seriousness of the dispute.
6 (M198/2000) [2024] ZANWC 13
obvious seriousness of the dispute.
6 (M198/2000) [2024] ZANWC 13
7 (1760/2022) [2023] ZAGPPHC 1838; [2024] 1 All SA 225 (GP)
8 Madiro v Madibeng Local Municipality and Others (1760/2022) [2023] ZAGPPHC 1838; [2024] 1 All
SA 225 (GP) (19 October 2023); Matseke v Maine (M198/2000) [2024] ZANWC 13 (26 January
2024).
[15] More importantly, the consultation of 13 May 2024 occurred before default
judgment was granted. Even on the applicant’s own version, there remained an
opportunity to defend the action or to take steps to prevent the judgment. None
was taken. That is diffic ult to reconcile with any suggestion that the applicant’s
absence was involuntary in the sense required by rule 42.
[16] The matter becomes more acute once one considers the period after mid -July
2024, when the applicant says he was informed of the default judgment. From
then until 18 March 2025, nothing was done beyond internal follow -ups with his
legal representatives. No warning letter was sent. No urgent application was
launched. No explanation of substance is furnished for the delay. On any ordinary
standard, that is a long and inadequately explained period of inactivity.
[17] In these circumstances, I cannot find that the judgment was granted “ in the
absence” of the applicant in the rule 42 sense. He was not shut out of the
process. Rather, process was served where he said it should be served, and no
defence was entered despite opportunities before and after judgment to
regularise the position. That is an ele ction, or at best a remediable omission by
chosen attorneys, not a procedural exclusion by the court or the plaintiffs. Zuma
and Rossitter are directly against him on this point.
[18] The applicant’s principal attack is directed not at service, but at the summons.
He submits that the particulars of claim omitted essential averments and
therefore disclosed no cause of action, with the consequence that the registrar
granted judgment on a legally deficient pleading. On that footing, he invokes
authorities such as Bakoven, Marais v Standard Credit Corporation Ltd ,9
Firstrand Bank Ltd t/a First National Bank v Moonsammy t/a Synka Liquors ,10
and Smit v Olivier. 11
[19] That argument requires careful attention. It is indeed correct that a default
judgment granted on a summons which is patently excipiable for want of a
judgment granted on a summons which is patently excipiable for want of a
9 2002 (4) SA 892 (W)
10 2021 (1) SA 225 (GJ)
11 (18322/2008) [2011] ZAWCHC 414 (27 October 2011)
necessary averment may, in an appropriate case, be vulnerable under rule 42.
But that is not because every pleading point becomes a rule 42 point. It is
because the defect must be so fundamental, and so apparent on the face of the
pleadings, that the plaintiff was not procedurally entitled to judgment at all.
[20] The applicant says first that all three claims were fatally defective because the
particulars did not expressly plead that the “ competing offer to purchase ” had
become valid and binding following fulfilment or waiver of the relevant
suspensive condition. There is force in the general proposition that a contract
subject to a suspensive condition is unenforceable unless the condition is fulfilled
or waived in law. The heads cite Paradyskloof Golf Estate v Stellenbosch
Municipality, 12 BW Brightwater Way Props (Pty) Ltd v Eastern Cape
Development Corporation ,13 and Fairoaks Investment Holdings (Pty) Ltd v
Oliver.14
[21] The difficulty for the applicant is that the rule 42 enquiry is narrower than an
exception. The question is not whether the particulars could have been more
elegantly or fully pleaded. It is whether, on their face, the claims were so devoid
of necessary av erments that the registrar was procedurally disabled from
granting judgment. I am not persuaded that this threshold has been crossed.
[22] The respondents’ heads point out that the particulars expressly relied on clauses
of the agreement, incorporated the written sale agreement, and pleaded breach
by the defendant in a manner that treated the contract as operative. They also
rely on correspon dence exchanged in December 2023 reflecting the
respondents’ stance that the agreement was binding and enforceable. Whatever
one may say about the nicety of the pleading, I am unable to conclude that the
summons was a nullity or that it disclosed no recogn izable contractual cause at
all.
[23] Smit v Olivier, on which the applicant relies, does not compel a different result.
all.
[23] Smit v Olivier, on which the applicant relies, does not compel a different result.
Much depends on the wording of the summons in that case and the nature of the
omitted allegation. Here, the pleadings, read as a whole and with their
12 2011 (2) SA 525 (SCA)
13 2021 (6) SA 321 (SCA)
14 2008 (4) SA 302 (SCA)
annexures, advanced a comprehensible case that the defendant concluded a
sale agreement, paid money pursuant to it, took occupation, repudiated or
breached it, and thereby incurred liabilities stipulated or flowing from the
transaction. That is not the sor t of patent pleading vacuum that obliged the
registrar to refuse judgment.
[24] In any event, rule 42 is not designed to permit a defendant to re-characterise as
a procedural nullity what is, in truth, a contestable pleading or contractual issue
that should have been ventilated by a notice of intention to defend, exception, or
plea. Lodhi 2 is plain that the later disclosure of a defence does not transform a
validly obtained default judgment into one erroneously granted.
[25] The applicant also attacks the second plaintiff’s claim on the footing that the
particulars did not plead compliance with sections 48 and 56 of the Property
Practitioners Act 22 of 2019, including possession of valid fidelity fund certificates
by the entit y and, if applicable, its directors. He points out that the annexed
certificate referred to Mr Carter acting on behalf of a different entity, First Realty
Bedfordview (Pty) Ltd.
[26] That point is not insubstantial. It may well have provided fertile ground for a
defence or exception had the applicant elected to defend the action. But again
the issue under Rule 42 is not whether the second plaintiff’s claim was vulnerable
to attack; it is whether the claim was so plainly non -sustainable on the papers
placed before the registrar that the judgment was procedurally incapable of being
granted.
[27] The particulars alleged that the second plaintiff was the estate agency, that Mr
Carter represented it, and that he held a valid fidelity fund certificate. Whether
those allegations were sufficient in law, and whether they could be proved at trial,
are cla ssic matters for pleading and proof. They do not demonstrate that the
registrar acted in error merely by granting default judgment on an undefended
registrar acted in error merely by granting default judgment on an undefended
claim. The applicant seeks to turn an arguable merits defence into a rule 42
defect. That the rule does not permit.
[28] The third plaintiff’s claim for wasted transfer costs is criticised on the basis that it
was pleaded as damages without adequate averments explaining how the
amount was computed, why the full invoiced transfer -related sums constituted
wasted costs, or what disbursements had actually been incurred. The applicant’s
heads develop this point with some vigour.
[29] Here too, however, the question is not whether the third plaintiff would
necessarily have succeeded at trial on the amount claimed. The issue is whether
the default judgment was erroneously granted because the particulars disclosed
no legally cognisable cl aim whatsoever. The respondents rely on the
agreement’s clauses and on the parties’ pleaded contractual arrangements to
say the claim was authorised by contract. Whether that construction is ultimately
correct is not the present enquiry.
[30] At most for the applicant, the third plaintiff’s claim may have been open to attack
as inadequately particularised or overstated. That is not enough for rule 42. A
defendant who wishes to resist such a claim must defend the action. He cannot
stand by, per mit judgment to be taken, and later invoke rule 42 because he
believes the claim should not have succeeded on its merits or quantum.
[31] The applicant also suggested that procedural irregularities attended the obtaining
of the default judgment under rule 31(5). I am not persuaded that any such
irregularity has been established on the papers. The chronology records service
of summons on 5 Ap ril 2024, application for default judgment on 24 May 2024,
and judgment on 28 May 2024. No fact is shown to have existed on the court
record which would have deprived the registrar of authority to entertain the
application.
[32] Nor does the fact that the third plaintiff is a firm of attorneys, or that an attorney
employed by it deposed to a supporting affidavit, establish procedural error. The
applicant’s true complaint is not about formal incompetence but about conflict,
fairness, or the substance of the claims. Those matters, once again, belong to
the merits and should have been raised in defended proceedings.
the merits and should have been raised in defended proceedings.
[33] Even if I were wrong on one or more of the above issues, I would still regard the
delay as material. From mid -July 2024 to 18 March 2025 there was no
application. There is no confirmatory affidavit from the former attorney explaining
the omission, no detailed chronology of follow-ups, and no satisfactory account
For the Applicant: MW Verster
Instructed by: Marais Verster and Associates
For the Respondent: Adv. Mailula
Instructed by: MC Kruger Attorneys.
Date of the hearing: 2 March 2026
Date of the judgment:14 April 2026