REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 69417/2017
In the matter between:
PASSENGER RAIL AGENCY OF SOUTH AFRICA PLAINTIFF
and
LEBOGANG DIALE DEFENDANT
Heard: 30 October 2025
Delivered: 16 March 2026
This judgment is handed down electronically by circulating to the parties or their legal
representatives by email and by uploading the judgment onto CaseLines. The date
and time for hand down of the judgment are deemed to be 14:00 on 16 March 2026.
JUDGMENT
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
16 March 2026
_________________
DATE SIGNATURE
2
MATLAPENG AJ
INTRODUCTION
[1] This is an application for rescission of Judgment brought by the Applicant in terms
of Uniform Rule 42 (1) (a), alternatively under the common law, and further
alternatively in terms of Rule 31 (2) (b).
[2] The Applicant bid this Court to rescind a Default Judgment granted on 2 May
20231, together with written reasons handed down on 18 July 2023 by her
Honorable Justice Janse Van Nieuwenhuizen2 which was in favour of the
Respondent.
[3] The Respondent opposes the application and submits that the Applicant has
failed to meet the requirements for rescission, inter alia, due to the inordinate
delay, secondly, the lack of a bona fide defence and lastly, the absence of
sufficient cause.
BACKGROUND
[4] It is so that the Default Judgment application arose from damages claim that was
instituted by the Respondent, following injuries allegedly sustained by the
Respondent on 20 February 2017 3 wherein two locomotives operated by the
Applicant, collided.
1 CaseLines: 00-1-4.
2 CaseLines: 001-8.
3 CaseLines: Of Claim 001-10 para 5.1.
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[5] The Applicant attributes the granting of the Default Judgment to procedural
irregularities4, including the refusal of the presiding Judge to hear the Applicant's
Counsel5, alleging non-compliance with Rule 28 and the hearing of unliquidated
damages without oral evidence.6
[6] The Respondent, however, contends that the Applicant was the author of its own
misfortune7, having persistently failed to comply with Court Orders 8, practice
directives, and procedural obligations over an extended period.
[7] It is so that after the Applicant took a protracted period of time in defending the
matter by entering a Notice of Intention to Defend and file a Plea, the Respondent
approached the Court seeking the following relief:
7.1. An order compelling the Applicant to, within 10 days from date of
transmission of the Order to the Applicant to deliver a signed discovery
affidavit in terms of Rule 35;
7.2 For the Applicant to attend a pre-trial conference in terms of Rule 37;
7.3 For the Applicant to deliver notices in terms of Rule 36 and Rule 36(9)(a)
should the Respondent require the Applicant to submit to a medical
4 CaseLines: Founding Affidavit 023-2 para 9.
5 CaseLines: Founding Affidavit 023-7 para 26.
6 CaseLines: Founding Affidavit -23-7 para 27.
7 CaseLines: Answering Affidavit 025 para 4.7-4.9.
8 CaseLines: Answering Affidavit 025-4.12 to 4.14
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examination, failing which, the Applicant will be precluded from invoking
the provisions of Rule 36(2).
7.4 Should the Applicant fail to comply with the above, the Applicant ’s
defence to the action will be struck out and the Respondent may apply
to the Registrar to allocate a date in the Default Judgment Trial Court for
Default Judgment in terms of paragrap h 21 of the 18 February 2021
practice directive, 1/2021; and
7.5 That the Applicant be ordered to pay the costs of the application.
[8] The service of the 0rder of Ncongwane AJ Order on the Applicant, was effected
twice via email on 18 August 2021 as well as 20 August 2021.9
[9] It is so that the Ncongwane AJ Order, was not challenged by the Applicant and
therefore it was deemed to be accepted by the Applicant. It was only on 27 May
202210, when the Applicant served its discovery affidavit while the balance of the
Ncongwane AJ Order, were not complied with.
[10] Despite the defence of the Applicant been automatically struck as a result of the
Applicant’s non -compliance with the Ncongwane AJ Order, the Respondent
erroneously applied for the defence to be struck which a pplication, and after a
series of correspondence between the legal representatives of the parties,
9 CaseLines: Answering Affidavit 025-11 para 4.12.5.
10 CaseLines: Answering Affidavit 025-12 para 4.13.
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(amongst others there was an indication from the Applicant ’s legal
representatives that an application for the rescission of the Ncongwane AJ would
be made, such was never launched) 11, the Respondent proceeded with the
application for Default Judgment which the set -down, was delivered on 2
November 202212 and the matter was heard on 2 May 2023.13
[11] For it’s part, the Applicant’s failed to file the Answering Affidavit to the application
for Default Judgment despite been served with the application on 14 June 202214
and the Answering Affidavit, was uploaded on CaseLines on the day of the
hearing which was 2 May 2023.15
THE ISSUES
[12] The central issues which calls for determination by the Court are, firstly, whether
the application was brought within a reasonable time. Second, whether the
Default Judgment was erroneously sought or granted as contemplated in
Uniform Rule 42 (1) (a) alternatively 31 (2) (b) and in the fu rther alternative the
common law.
[13] Lastly, this Court is called upon to make a determination as to whether sufficient
cause exist, to justify rescission.
11 CaseLines: Answering Affidavit 025- 15 paras 4.14.5.3-4.15.
12 CaseLines: Answering Affidavit 025-15 para 4.17.
13 CaseLines: Answering Affidavit 025-15- paras 4.17-18.
14 CaseLines: Answering Affidavit 025-12 para 4.14.
15 CaseLines: Answering Affidavit 025-16 para 4.19.
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The delay in launching the application
[14] It is so that rescission is not there for the asking. A party seeking such indulgence
must act with diligence and expedition.
[15] The Judgment and Order sought to be rescinded by the Applicant, was granted
on 8 May 2023 with reasons furnished on 18 July 2023. The present application
before the Court, was instituted on 08 August 2023.
[16] It is well established that an Applicant seeking condonation or indulgence from a
Court, bears the onus of proving a full, detailed and accurate explanation for the
entire period of the delay.
[17] This principle has been authoritatively arti culated by the Constitutional Court in
Van Wyk vs Unitas Hospital and Another (Open Democratic Advice Center
as Amicus Curiae) 16 where the Court held that an unsatisfactory explanation
may, in and of itself, be dispositive of the inquiry. The Court held thus:
[30] If the only hurdle that the applicant had to surmount was mootness, the
position would have been entirely different. Here the applicant has to surmount
two hurdles, the first being the inordinate delay coupled with a lack of reasonable
explanation for the delay. Mootness adds a further hurdle and renders the first
hurdle insurmountable…”
16 (2008) SA 472 (CC) at Paras 31-31.
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[31] There is an important principle here. As inordinate delay induces a
reasonable belief that the order had become unassailable. This is a belief that
the hospital entertained and it was reasonable for it to do so. It waited for some
time before it took steps to recover its costs. A litigant is entitled to have closure
on litigation. The principle of finality in litigation is intended to allow to get on with
their lives. After an inordinate delay a litigant is entitled to assume that the losing
party has accepted the finality of the order and does not intend to pursue the
matter any further. To grant condonation after such an inordinate delay and in
the absence of a reasonable explanation, would undermine the principle of
finality and cannot be in the interests of justice.”
[18] On these facts, there has not been a delay in launching the application as the
impugned Court Order as well as the Judgment thereto, are dated 6 May 2023
and 18 July 2023 respectively and this application, was served on 08 August
2023.
Rule 42(1) (a): erroneously granted
[19] Rule 42 (1)(a) permits rescission only where a Judgment was erroneously sought
or erroneously granted in the absence of an affected party. An “error” must exist
at the time the Order was made.
[20] It is so that subsequent dissatisfaction with the outcome, doe s not suffice under
these circumstances. It is so that the record reveals that the Applicant was in
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default due to its own failure to comply fully and timeously with Court Orders and
the applicable practice directives of this division.
[21] The Court was acco rdingly, entitled to proceed on the basis that the Applicant
defense had been struck-off by Ncongwane AJ whether by operating of the Order
or as a consequence of persistent non -compliance on the part of the Applicant
which, has been expressly and unambiguo usly demonstrated by the
Respondent.
[22] The Applicant, had been aware of the Ncongwane AJ Order at least from 18
August 2021 alternatively 14 June 2022 when the Default Judgment application
which was predicated by the Ncongwane AJ Order, was served on it.
[23] Despite this awareness, the Applicant failed to file an Answering Affidavit to the
application for Default Judgment alternatively bring a counter -application to
rescind the Ncongwane AJ Order and instead, remained in default until 02 July
2023.
[24] When quizzed by Janse Van Van Nieuwenhuizen J that the Order of Ncongwane
AJ expressly and unambiguously stated that the failure to comply with the Order
would, ipso facto Bar the Applicant, the Applicant ’s Counsel responded and
stated:
“It was ordered that the defense will be struck ipso facto. So as we sit here today
you are not before court.”
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“I agree that court orders must be adhered to…”17
[25] In sum, the Applicant's reliance on alleged procedural missteps, does not
establish an error attributed to the Court. At best, it reflects an attempt to re -
litigate matters that ought to have been raised timeously by the Applicant.
[26] Rule 42, is not a mechanism for appeal in disguise and reliance on the same,
must thus fail on these facts.
Bona fide defence
[27] Even if Rule 42 were applicable (which this Court does not find), the Applicant
has failed to disclose a bona fide defense.
[28] It is so that a bona fide defense, requires more than bold averments. It must be
set out with sufficient particularity to enable the Court to assess its prospects.
[29] The Applicant with respect, does not meaningfully traverse the merits of the
Respondent's claim. Instead, the Applicant relies almost exclusively on technical
objections and procedural complaints to bolster its case.
17 CaseLines: Answering Affidavit 025-19 paras 4.34-4.35.
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[30] There are no expert reports which seriously challenge the quantum claimed and
Ordered by the Court a quo. Instead, the Applicant states that the Order is
contrary to the Practice Directives of 1/2021 of the Gauteng Division.18
[31] There has not been non -compliance with the Practice Directive of 1/2021 and
instead, the opposite is true. The Applicant, failed to comply with the Order of
Ncongwane AJ, failed to effectively engage with the Respondent regarding pre -
trials which prompted the Respondent, while relying on prayer 2 of the
Ncongwane AJ Order, to approach the Court, confirm a date of hearing and
correctly proceed on a default basis as, there was no Defendant as the defence
was struck after the non -compliance of the 18 August 2021 Order, and whilst
being aware as of 18 August 2021 of what was required of the Applicant to no
avail.
[32] Critically, no substantive defence to the quantum is articulated by the Applicant.
Furthermore, there is no engagement with the factual allegations underpinning
the damages claim as stated above.
[33] In this regard, the Applicant falls well short of the threshold articulated in De Wet
vs Western Bank Limited 1979 (2) SA 1031 (A).19
[34] In sum, the absence of a bona fide defence, is fatal to the application whether
considered under the common law or Rule 31(2) (b).
18 CaseLines: Founding Affidavit 023-4 para 12.
19 1042 F-H.
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The unliquidated damages and evidence
[35] The Applicant also contends that the Court erred by granting Default Judgment
without hearing oral evidence. This argument overlooks the context in which the
matter was heard.
[36] It is so that the Applicant's defense had been struck -off by the operation of the
Ncongwane AJ Order and the matter therefore proceeded on an unopposed
basis and with the strict compliance of the Practice Directive 1/2021.
[37] The Court was entitled to rely on the expe rt reports which were filed by the
Respondent which included documentary evidence, was properly before the
Court.
[38] The reliance that the Respondent was not entitled to effect an amendment is
misplaced. An amendment may be affected at any time before Judgment as was
the case under the facts before the Court.
[39] It is so that no application was made at the time to challenge the admissibility or
sufficiently of such evidence, which evidence, was properly before Court.
[40] In any event, the Applicant was ipso facto barred from participating in the
proceedings. The Applicant ’s remedy squarely lies with rescinding the
Ncongwane AJ Order.
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[41] In sum, the Applicant through its own default, deprived itself and on multiple
occasions, the opportunity to be heard by the Court.
[42] There was no application for condonation for the late filing of the Answering
Affidavit which made the situation worse for the Applicant when the matter was
heard before Janse Van Nieuwenhuizen J.
Common law and rule 31 (2) (b)
[43] Under both the common law and Rule 31 (2) (b), the Applicant bears the onus of
showing good cause. For the reasons already articulated above and namely,
delay, lack of adequate explanation, and absence of a bona fide defense the
Applicant has failed to discharge this onus.
[44] It is so that litigation must come to an end. The interest of justice and finality
weigh heavily against granting rescission in circumstances such as these.
[45] In sum, inadequate explanation and the absence of prospects of success, aligns
squarely with the approach endorsed in Van Wyk supra, namely that Courts must
guard against the abuse of process and uphold the principle that litigation must
reach finality (interest rei publicae ut sit finis litum).
CONCLUSION
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Appearances
Applicant’s Counsel: Adv S. Raselalome (Heads of
argument prepared by N Mahlangu)
Applicant’s Attorneys: Ledwaba Mazwai
Respondent’s Counsel: JF Grobler SC with C Jooste
Respondent’s Attorneys: Wehmeyers Attorneys