IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 5484/2022
Reportable No
In the matter between:
BUKELWA SITUNDA Applicant
and
MINISTER OF HIGHER EDUCATION & TRAINING First Respondent
KSD TVET COLLEGE Second Respondent
IN RE:
KSD TVET COLLEGE Applicant
and
BUKELWA SITUNDA Respondent
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________________________________________________________________
ORDER
________________________________________________________________
In the result, the following order shall issue:
1. The application for rescission of the order dated 4 April 2023 is
dismissed;
2. The second Respondent (KSD TVET College) is ordered to pay costs of
the application, including costs of counsel according to Scale C of the
tariff.
REASONS FOR THE JUDGMENT
NOTYESI AJ
Introduction
[1] On 5 March 2026, following the hearing of a rescission application in respect
of an order granted on 4 April 2023 in favour of the Applicant, this Court delivered an
ex tempore judgment dismissing the application with costs on Scale C of the High
Court tariff. The rescission application was brought by KSD TVET College, and the
Minister was not a party thereto. Although the Court furnished substantive reasons at
the time of delivering judgment, KSD TVET College has since requested written
reasons. These are the reasons for the order.
[2] The background facts giving rise to the rescission application may be
summarised as follows. On or about 4 November 2022, Ms Bukelwa Situnda
instituted an application against KSD TVET College and the Minister of Higher
Education seeking an adjustment of her salary from level M+3 to level M+4. The
notice of motion and founding affidavit were duly served on both respondents, who
elected not to oppose the application.
[3] On 4 April 2023, Rusi J, on application by Ms Situnda, g ranted an order in
terms of the notice of motion. The terms of the order were as follows:
3.1 The Respondents are directed to adjust the Applicant’s salary from level Mplus3 to
level Mplus4 within ten (10) days of this order.
3.2 The Respondents are directed to pay the Applicant back pay from January 2020 to
date of compliance with this order in line with the adjustment in paragraph 3.1 above.
3.3 The Respondents are directed to pay costs of this application.
[4] Following the grant of the order, Ms Situnda invoked enforcement mechanisms
after realising that the Respondents were not complying with its terms. She further
threatened to institute contempt of court proceedings in the event of continued non -
compliance. It was in response to this threat th at KSD TVET College launched the
rescission application.
[5] In the rescission application, the deponent to the founding affidavit on behalf of
the college confirmed that the notice of motion and founding affidavit in the main
application had been received. The deponent further confirmed that the college had
elected not to oppose the application in order to avoid incurring unnecessary costs.
The college also confirmed that the court order was served on 23 April 2023.
[6] On 14 September 2023, Ms Si tunda served the college with contempt of court
proceedings seeking to have the Respondents declared to be in contempt of the court
order. Thereafter, on 27 September 2023, the college launched the present rescission
application, approximately six months after the granting of the order.
[7] The principal ground advanced by KSD TVET College is that it is not the
employer of Ms Situnda, and that the Minister is her employer. On this basis, the
college contends that it was misjoined in the main application a nd that the order
granted on 4 April 2023 ought to be rescinded. The application is brought under the
common law.
[8] Ms Situnda opposes the application on the basis that the college has failed to
provide an adequate explanation for its inaction at the ti me the order was granted. The
gravamen of her contention is that the rescission application lacks the requisite good
cause to justify rescission.
The parties
[9] The parties in this rescission application shall be referred to as follows:
9.1 The Applicant shall be referred to as the KSD TVET College or the
college.
9.2 The Respondent shall be referred to as Ms Situnda.
Issue before court
[10] The issue before court was:
10.1 Whether the TVET College has made out a case for the rescission of the
order.
10.2 Appropriate order of costs.
Contentions of the parties
[11] Mr Nkele, counsel for the college, submitted that the rescission application is
brought under the common law. He correctly conceded that, in order to succeed, the
college must demonstrate go od cause. He submitted that the college has a bona fide
defence on the merits, namely that it is not Ms Situnda’s employer and that the order
was erroneously granted against it.
[12] When pressed on the absence of any explanation for the college’s failure to
oppose the main application, Mr Nkele conceded that no explanation had been
provided beyond the college’s stated intention to avoid unnecessary costs. He
submitted that the strength of the college’s defence should compensate for the la ck of
explanation.
[13] During his submissions, Mr Nkele, handed up a document described as a
“Delegation of Authority”.
[14] Mr Mzileni, who appeared for Ms Situnda, urged the Court to dismiss the
application, contending that it constitutes an abuse o f process. He submitted that the
college had been delegated the authority to recruit and appoint Ms Situnda and
therefore had a direct and substantial interest in the main proceedings. Accordingly,
the contention of misjoinder is without merit.
[15] Mr Mzileni further contended that the college ought to have placed its position
before the Court in the main application by way of affidavit, which it failed to do. He
contended that it is insufficient for the college to rely on internal decisions not to
oppose the application where such reasons were neither communicated to the
Applicant nor placed before the Court. He also pointed to the unexplained delay of
approximately six months in launching the rescission application, submitting that
good cause requires bo th a satisfactory explanation for the default and a bona fide
defence on the merits.
Legal framework
[16] The rescission application is brought under the common law. In terms thereof,
the applicant must demonstrate sufficient or good cause. The requireme nts for
rescission of a default judgment were articulated in in Chetty v Law Society,
Transvaal1, namely that the applicant must: (a) provide a reasonable and satisfactory
explanation for the default; and (b) show that it has a bona fide defence which pri ma
1 Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 765 A-E
facie carries some prospect of success. Failure to satisfy either requirement may
justify refusal of the application.
[17] The discretion to rescind a judgment must be exercised judicially, with the
primary aim of achieving justice between the parties. “Good cause” generally entails
that:
(a) The defendant has a reasonable explanation for the default. Wilful
default is ordinarily fatal, although gross negligence may, in appropriate
circumstances, be condoned. Wilful default implies knowledge of the
proceedings and their consequences, coupled with a conscious decision
not to act.
(b) The application is bona fide and not brought merely to delay the
plaintiff’s
claim.
(c) The defendant has a bona fide defence and a genuine intention to pursue
it if rescission is granted. The Court may also consider prejudice to the
parties.
[18] A bona fide defence need only be established prima facie. It is not necessary to
prove the defence in full; it suffices to set out facts which, if established at trial, would
constitute a valid defence. The defence must have existed at the time judgment was
granted. The Court retains a wide discretion in assessing “good cause” to ensure that
justice is done. In appropriate cases, a strong defence may compensate for a weak
explanation, and vice versa.
Evaluation and analysis
[19] The rescission application is without merit and was defective from the outset. It
is devoid of any meaningful detail or explanation. The college accepts that it was
served with the notice o f motion, which clearly set out the relief sought. With full
knowledge of the proceedings and their consequences, the college deliberately elected
not to oppose the application. In its founding affidavit, the deponent stated:
‘The 2nd Respondent did not op pose the application because it did not want to unnecessarily
escalate costs by opposing what it regarded as a simple and straight forward matter that is
capable of being dealt with swiftly. Consequently, it provided the national department with all
documentation that demonstrate that the applicant qualifies to be compensated, salary wise,
on the basis of Mplus 4. In fact the College understood the Applicant’s case and the of time
reasons behind, hence the discussion not to oppose the Application and at the sometime it had
hope that the department will comply.’
[20] There can be no doubt that the college was a necessary party to the main
proceedings and was properly joined. Ms Situnda was recruited by the college, which
was in possession of her employment r ecords. Any information relevant to salary
adjustments was therefore within its knowledge. Even if the Minister bore ultimate
responsibility, the college had a direct and substantial interest in the proceedings. The
contention of misjoinder is accordingly without merit.
[21] The central submission advanced on behalf of the college —that it is not the
employer and therefore bears no responsibility —is misconceived. The relevant
enquiry is whether the college had an interest in the proceedings, which it plainl y did.
Having been served with the application, the college ought to have placed its position
before the Court or, at the very least, communicated it to the Applicant. It failed to do
so.
[22] The college’s explanation that it elected not to oppose the ap plication to avoid
costs is inadequate. This position was never communicated to the Applicant. The
college was aware of the hearing date yet chose not to attend court. It was
subsequently served with the order, which it simply ignored until threatened with
contempt proceedings. Its prolonged inaction —spanning approximately six months —
remains unexplained. The college is the author of its own misfortune.
[23] There is a complete absence of a satisfactory explanation for the delay in
launching the rescission application. The inference is inescapable that the application
was brought as a stratagem to avoid contempt proceedings. It is therefore not bona
fide but motivated by an ulterior purpose, namely to frustrate the enforcement of the
court order. Undeniably, the delay in launching the rescission application is
excessively long. There is no account for the delay except for the spurious excuses.
This conduct, self-evidently is an abuse of court procedures. It should be discouraged.
[24] The college has failed to satisfy the requirements for rescission as set out in
Chetty v Law Society, Transvaal2. It has neither provided a reasonable explanation for
2 Supra
its default nor established a bona fide defence with prospects of success. Its failure on
both requirements is fatal to the application.
[25] In the circumstances, this Court found no basis upon which to exercise its
discretion in favour of rescission.
Costs
[26] The Court considered the abuse of process inherent in the application. The
rescission proceedings were instituted only after contempt proceedings had been
initiated, and approximately six months after the granting of the original order. The
timing strongly suggests that the application was intended to circumvent compliance.
The Court also took into account the nature and importance of the matter, as well as
the prejudice suffered by Ms Situnda since 2022. In these circumstances, an award of
costs on Scale C of the High Court tariff was appropriate.
Conclusion
[27] In the result, the Court found that the rescission application constituted an
abuse of process and lacked merit. The application was accordingly dismissed with
costs.
Order
[28] In the result, the following order shall issue:
1. The application for rescission of the order dated 4 April 2023 is
dismissed.
2. The second Respondent (KSD TVET College) is ordered to pay costs of
the application, including costs of counsel according to Scale C of the
tariff.
_______________________
M NOTYESI
ACTING JUDGE OF THE HIGH COURT, EASTERN CAPE DIVISION
APPEARANCES:
Attorney for the Applicant : Mr Nkele
: T A Nkele & Sons
Mthatha
Counsel for the Respondent : Mr Mzileni
Instructed by : M Nogumbe Incorporated
Mthatha
Heard on : 5 March 2026
Reasons for Judgment Delivered on : 14 April 2026