IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. 245/2024
In the matter between:
THE UNIVERSITY OF FORT HARE Applicant
and
MAXI PHUMELELA SECURITY (PTY) LIMITED First Respondent
THE MINISTER OF HIGHER EDUCATION AND
TRAINING Second Respondent
JUDGMENT
MOLONY AJ:
Introduction
[1] The applicant in this matter seeks the rescission of an order granted against it by
default (in the amount of R 30 894 120.78) on 2 April 2024, in which matter the
first respondent was the plaintiff. The second respondent was cited as the
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second defendant in the main action (on a nominal basis). The parties will, for
ease of reference, be referred to as cited in this application.
[2] The main action against the applicant was based on four partly written and partly
verbal agreements. The first three agreements were concluded on
12 December 2019, with the four th being concluded on 12 February 2020. The
nature of the agreements related to the sale and installation of covert security
cameras by the first respondent to the applicant.
[3] According to the particulars of claim in the main action the first respondent,
between December 2019 and March 2020, complied with its obligations in terms
of the agreements and sold and installed the covert security cameras at the
applicant’s designated premises. The applicant, allegedly,
failed/refused/neglected to pay for the relevant goods and services.
[4] The first respondent allegedly complied with the notice requirements in terms of
the Institution of Legal Proceedings Against Certain Organs of State Act 40 of
2002 (‘the Organs of State Act’), by providing such notice to the ap plicant on
27 November 2023 (‘the first Organs of State letter’), and to the second
respondent on 4 December 2023 (‘the second Organs of State letter’).
[5] The particulars of claim state further that as a result of the ab ove-mentioned
statutory demands having been delivered, and on or about 15 December 2023
and at or near St Francis Bay, the first respondent (duly represented) and the
applicant concluded a written agreement (‘the settlement agreement’) in terms of
which the applicant acknowledged that it was truly and lawfully indebted to the
first respondent in the sum of R 30 894 120.78, and inter alia undertook to pay
that amount, as well as any accrued interest, on or before 21 December 2023.
[6] The particulars of claim (despite alleging that the first respondent was ‘duly
[6] The particulars of claim (despite alleging that the first respondent was ‘duly
represented’ when entering into the four agreements) did not allege that the
applicant was duly represented by someone with the necessary authority to
conclude the settlement agreement and furthermore claimed (despite the prayers
therein only seeking judgment against the applicant) that the applicant and the
second respondent were indebted to the first respondent in the relevant amount,
which was due, owing and payable by the applicant and the second respondent.
[7] The first Organs of State letter was addressed to Dr Paul Tladi (it does not
appear to be in dispute that Dr Tladi was the Director of Human Resources at the
applicant during the relevant period and was, according to the applicant, later
dismissed for gross misconduct).
[8] The first Organs of State letter inter alia stated that four letters of award were
issued to the first respondent by Dr Tladi on 12 December 2019 (for an amount
of R 2 723 981.23), 12 December 2019 (for an amount of R 3 211
382.66), 12 December 2019 (for an amount of R 1 169 410.01)
and on 12 February 2020 (for an amount of R 17 345
693.66). The amounts referred to were inclusive of tax and, according to the
letter, with interest amounted to a total sum of R 30 894 120.78 (the total capital
amount being R 24 450 467.56).
[9] The first Organs of State letter made direct reference to the contents of the
letters of award but did not annex the letters of award.
[10] The first Organs of State letter referred to the following annexures (none of which
appear to have been included in the papers issued and served in the main
action):
(a) A copy of the interest calculation in regard to the total amount allegedly
owing.
(b) Four written acknowledgments of debt and commitments to pay.
[11] The second Organs of State letter referred to the following annexures (none of
which appear to have been included in the papers issued and served in the main
action):
(a) The four letters of award.
(b) Four written acknowledgments of debt.
(c) A copy of the statement of account for the applicant.
[12] The written agreement, in which the applicant allegedly accepted its
indebtedness and liability to pay (in the claimed amount) was attached to the
particulars of claim and is headed ‘Settlement Agreement’. Despite this heading
the first respondent averred that this agreement amounted to a promissory
note/acknowledgment of debt, and was not in fact a settlement agreement.
[13] What is no table about the above -mentioned settlement agreement is that the
creditor (that being the first respondent) is recorded as having signed the
agreement on 15 December 2023 at St Francis Bay, whilst the date and place of
signature on behalf of the applicant is not recorded. On the assumption that the
settlement agreement was signed on 15 December 2023 and at St Franics Bay,
no explanation is tendered as to why a duly authorised representative of the
applicant would attend to the signing of the settlement agr eement (given where
the applicant is located) as far afield as St Francis Bay.
[14] The names of the allegedly authorised representatives who signed the settlement
agreement are not recorded anywhere in the agreement. It cannot be discerned
from the signatures in question who in fact signed the settlement agreement, and
below each signature is recorded that the undertaking was signed: ‘For and on
behalf of the Debtor/Creditor (who warrants that he/she has the authority to bind
the Debtor/Creditor hereto)’. It is not confirmed, by deleting the relevant word,
whether the signatories were a ‘he’ or a ‘she’ either.
[15] The first respondent issued summons against the applicant on 24 January 2024,
and service was effected on 16 February 2024.
[16] According to the foun ding affidavit in this application, the summons was served
upon Olo Myendeki (‘Myendeki’), who took the summons to the office of
Governance and Legal Service, and handed it to Pamela Ngese (‘Ngese’), who
was the secretary of Mamatibidi Maepa (‘Maepa’), who was the Deputy -
Registrar: Governance and Legal Affairs at the applicant.
[17] Ngese duly advised Maepa of receipt of the summons, including that reference
was made in the documentation received to annexures which were not attached
to the summons. Ngese then, on instruction from Maepa, sent an email to the
attorneys of record of the first respondent, the relevant portion of which reflected
the following:
‘This email serves to acknowledge receipt of the summons served to our office this
morning. Kindly note that the document is dated 24 January 2024 by the Registrar of the
court and received by the Queenstown Sheriff’s office on 15 February 2024, so the
University only received it this morning and is incomplete. Also, would you kindly advise
on who were you dealing with regarding this matter from the University.’
[18] This request was made, inter alia, in order to allow the applicant to conduct an
internal investigation in regard to the claim.
[19] Instead of responding to the email, the first respondent proceeded to take default
judgment against the applicant. There was a letter sent, notifying the applicant of
the default judgment, dated 26 April 2024, however both Ngese and Maepa aver
that they did not receive the letter, but only received su ch notice on 6 May 2024,
when the first respondent sent another letter to the applicant in this regard.
[20] On 7 May 2024 Ngese sent an email to the first respondent’s attorneys of record,
alerting them to the email she had sent on 16 February 2024. This ema il also
received no response.
[21] On 12 June 2024 the first respondent sent the Sheriff to attach the applicant’s
assets pursuant to a warrant of execution. This application was then issued on
21 June 2024.
[22] The applicant averred that it had a bona fide defence, as it was unable to trace
any of the letters of award referred to by the first respondent, as the records of
the applicant did not reflect four contracts of this nature established pursuant to
valid procurement protocols.
[23] According to the applicant, the applicant’s Asset Unit was only able to trace three
invoices, submitted by the first respondent, for services rendered in the total
amount of R 788 849.93, which was paid to the first respondent.
[24] The applicant thus presumed that the settlement agreement must be a fraudulent
document, since the first Organs of State letter was addressed to Dr Tladi and
referred to letters of award made by Dr Tladi, under circumstances where Dr
Tladi had been dismissed for gross misconduct a nd it had been established that
Dr Tladi had signed two contracts irregularly with another institution. The
awarding of the contracts in question in this matter, had they been awarded by Dr
Tladi were, according to the applicant, beyond Dr Tladi’s authori ty as Director of
Human Resources.
[25] At its core, the applicant’s complaint is that it has no idea who signed the
settlement agreement on behalf of the applicant, as the applicant has no record
of its existence, or the existence of the contracts which allegedly underpinned the
settlement agreement. All that could be found were three invoices for certain
work, which had been paid.1
1 Confirmatory affidavits were provided by employees of the applicant in regard to the value of the actual work
done in relation to these invoices which was, apparently, not necessarily of as high a value as that claimed by and
paid to the first respondent.
[26] The applicant submitted that the first respondent, due to its failure to name the
representative of the applicant who had engaged with the first respondent in
concluding the relevant contracts, had not complied with rule 18(6) of the Uniform
Rules, which states that:
‘A party who in his or her pleading relies upon a contract shall state whether the contract
is written or oral and when, where and by whom it was concluded, and if the contract is
written a true copy thereof or of the part relied on in the pleading shall be annexed to the
pleading.’
[27] The first respondent opposed the application via an extensive and repetitive
litany of technical objections2 which were, in my view, more perceived than real.
[28] The main thrust of the grounds of opposition appeared to be the following:
(a) The applicant is a juristic person and had not resolved to institute this
application, meanin g that Maepa and the applicant’s attorneys of record
lacked the necessary authority to act on behalf of the applicant.3
(b) The delay in launching the application was too lengthy.
(c) The applicant was in wilful default.
(d) The applicant did not have a discernible bona fide defence.
[29] The first respondent averred that, despite the settlement agreement being titled
‘Settlement Agreement’, it in fact amounted to a promissory note (which was,
according to the first respondent, no t in dispute). The first respondent,
according to the answering affidavit:
‘…prudently obtained the Promissory Note to ensure that it would not suffer massive and
irreparable losses as a result of a chaotic, fraudulent and corrupt institution’s chaos, f raud
and corruption.’4
2 On the potential failure of justice caused by a reliance upon technical objections see City of Tshwane
Metropolitan Municipality v Afriforum and Another 2016 (6) SA 279 (CC) at para 18, cited with approval in Minister
of Police v Miya 2025 (3) SA 130 (SCA) at para 1.
of Police v Miya 2025 (3) SA 130 (SCA) at para 1.
3 Issues were raised regarding the commissioning of the founding affidavit and the signing of the notice of motion,
however these complaints, which, in my view, had no merit, were not pursued with any obvious vigour.
4 See answering affidavit at para 95.3 on pp. 92 – 93.
[30] The first respondent averred further that averments by the applicant, in the
founding affidavit, relating to issues surrounding corruption at the applicant were
based upon irrelevant ‘gossip’, as the Government Gazette (issued by the
President of the Repub lic of South Africa) authorising the Special Investigation
Unit (‘the SIU’) to investigate the applicant was not tasked with investigating the
first respondent’s cause of action.
[31] Later, however, the terms of reference of the SIU having been extended in 2024,
the first respondent submitted a supplementary affidavit submitting that it had, in
essence, been exonerated by the SIU. The high point of the alleged exoneration
was a letter addressed by the SIU to the first respondent’s attorneys of record,
dated 18 March 2025, stating that:
‘The SIU hereby confirms that no adverse finding was made on its investigation of the
University insofar as such relate to Maxi. However, should new allegations based on
evidence be brought to the SIU’s attention, the invest igation team shall not hesitate to
investigate such allegations further.’
[32] The above -mentioned letter did not provide any factual detail in regard to the
investigation and did not reflect which contracts were considered during the
course of the investigation.
[33] Somewhat curiously the first respondent, in its answering papers, denied that
Maepa was employed by the applicant in the post of Deputy Registrar:
Governance and Legal Affairs, or at all. This was despite the fact that the first
respondent’s letter of 6 May 2024, notifying the applicant of the default judgment,
was addressed to Maepa in her capacity as Deputy -Registrar: Governance and
Legal Affairs.
The Law and Analysis
[34] The Higher Education Act 101 of 1997 (‘the HEA’), in section 1 thereof, states
that:
‘‘principle’ means the chief executive and accounting officer of a
public higher education institution, and includes a vice-chancellor and a rector.’
[35] Section 30 of the HEA records that:
‘The principal of a public higher education institution is responsible for the management
and administration of the public higher education institution.’
[36] Section 1 of the applicant’s Institutional Statute, states that the Vice -Chancellor
and Principle means the ‘chief executive and accounting officer’ of the applicant,
whilst section 9 thereof confirms that the Vice -Chancellor is the legal,
administrative and academic head of the applicant, and is responsible for the
management and administration of the applicant, as well as the overall
performance and discipline within the applicant.
[37] The applicant annexed, to its replying papers, a policy referred to as the ‘UFH
Delegation of Authority Document (DOAD)’.
[38] According to Maepa the DOAD allows Maepa, given her position within the
applicant, the a uthority to pursue all legal work on behalf of the applicant, whilst
reporting legal disputes to the Vice -Chancellor, and obtaining confirmation from
the Vice-Chancellor’s office as to the way forward.
[39] A letter from the Vice-Chancellor, with reference to section 7.1 and schedule 5 of
the DOAD, was annexed to the replying affidavit, confirming Maepa’s authority in
this regard, and specifically in regard to this application.5
[40] Section 7.1 of the DOAD states as follows:
5 The papers also contain a power of attorney, signed by the Vice -Chancellor of the applicant, in regard to the
applicant’s attorneys of record.
‘7.1.1 The Vice-Chancellor is the Chief Executive Officer of the University. In accordance
with the provisions of the Higher Education Act and the University’s Statute, Council has
delegated the powers of management of the University to the Vice -Chancellor and
Principle.
7.1.2 The Vice-Chancellor on behalf of the University and for its benefit and purposes,
may institute or defend legal proceedings and sign all deeds, powers of attorney and
other documents that may be necessary for this purpose or delegate such authority in
writing, for any one specific matter to an employee of the University.’ 6
[41] Schedule 5 of the DOAD states, in regard to ‘LEGAL (Excluding Human
Resources)’ that: ‘Except as otherwise provided in the DOAD, the maximum
approval levels for legal matters are set out below.’
[42] What follows is a table which sets out that ‘Legal Settlement’ and ‘Institute or
Defend Legal Proceedings and the settlement of disputes by arbitration or
mediation’ which involve over R30 million, ostensibly require the approval of the
Chairman of Council.7
[43] The page following the above -mentioned page is also headed ‘Schedule 5’, and
repeats the wording of section 7.1.2 of the DOAD, stating that:8
‘The Vice -Chancellor on behalf of the University and for its benefit and purposes, may
institute or defend legal proceedings and sign all deeds, powers of attorney and other
documents that may be necessary for this purpose or delegate such authority in writing,
for any one specific matter to an employee of the University.’
[44] Section 68 of the HEA states that:
‘(2) The council of a public higher education institution may, on such conditions as it may
determine, delegate any of its powers under this Act or delegated to it in terms of
subsection (1), except the power to-
(a) make an institutional statute;
(b) enter into an agreement contemplated in section 40 (2); or
(c) perform an action contemplated in section 40 (3)9,
(c) perform an action contemplated in section 40 (3)9,
6 See annexure ‘RA1’ to the replying affidavit at p. 244 of t he papers. See further section 4.3 of the DOAD at p. 242
of the papers.
7 See annexure ‘RA1’ to the replying affidavit at p. 255 of the papers.
8 See annexure ‘RA1’ to the replying affidavit at p. 256 of the papers.
and assign any of its duties in terms of this Act or assigned to it in terms of subse ction
(1), to the other internal structures, the principal or any other employee of the public
higher education institution concerned.
(3) The principal of a public higher education institution may, on such conditions as he or
she may determine, delegate any of his or her powers under this Act and assign any of
his or her duties in terms of this Act to any other employee of the public higher education
institution concerned.’
[45] Schedule 1 of the DOAD, which is titled ‘Authority Levels for Contracts’,
specifically states that: ‘Verbal agreements are forbidden in their entirety’. This is
notable given the first respondent’s allegation that the four contracts, which led to
the applicant allegedly owing the first respondent over R30 million, w ere partly
written and partly verbal. The DOAD was approved and signed by the
Chairperson of Council on 7 December 2023 (mere days before the signing of
the alleged promissory note).
[46] The logical corollary of the first respondent’s argument in terms of authority (as
referred to in the HEA, the Institutional Statute and the DOAD) is that the
authority of the signatory to the promissory note itself, relating to an amount of
over R 30 million, would, on the first respondent’s interpretation,
conceivably have required the approval of the Chairman of Council (presumably
pursuant to a resolution of council). The first respondent has not confirmed that
the promissory note had such approval.
[47] In my view the obvious (as well as expeditious and businesslike) interpretation 10
of the HEA, Institutional Statute and the DOAD allow for employees such as
Maepa to attend to legal affairs, such as the launching of this application, under
the oversight of the Vice -Chancellor. A reading of the HEA and Institutional
Statute demonstrate that obtaining a resolution from council is not an expeditious
Statute demonstrate that obtaining a resolution from council is not an expeditious
undertaking, hence the necessary delegation of authority referred to above.
9 Sections 40(2) and 40(3) of the HEA are not relevant in regard to this application.
10 See Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18.
[48] The applicant has launched this application in terms of the common law. In such
an application, for recission of a judgment taken against the applicant by default,
the applicant must show good/sufficient cause. This generally requires that the
applicant must:
(a) give a reasonable explanation for his default;
(b) show that his application is made bona fide; and
(c) show that on the merits he has a bona fide defence which prima facie carries
some prospect of success.
[49] The courts, nonetheless, retain a discretion which must be exercised after a
proper consideration of all the relevant circumstances. 11
[50] In regard to rescission in terms of the common law, the following was stated in
the matter of Ekurhuleni City v Rohlandt Holdings CC and Others:12
‘[88] An application for rescission under the common law must be brought ‘within a
reasonable time. What is reasonable will depend on the circumstances of the particular
case. A starting point in determining what is reasonable is the 20 -day time period referred
to in rule 31(2) (b) of the Uniform Rules of Court. Where there has been delay, the
applicant must show that there is a reasonable explanation for the delay.’
[51] In Melane v Santam Insurance Co Ltd13, the following guidance was provided:
‘In deciding whether sufficient cause has been shown, the basic principle is that the Court
has a discretion, to be exercised judicially upon a consideration of all the facts, and in
essence it is a matter of fairness to both sides. Among the facts usually relevant are the
degree of lateness, the explanation therefor, the prospects of success, and the
importance of the case. Ordinarily these facts are interrelated: they are not individually
decisive, for that would be a piecemeal approach incompatible with a true discretion,
save of course that if there are no prospects of success there would be no poin t in
granting condonation. Any attempt to formulate a rule of thumb would only serve to
granting condonation. Any attempt to formulate a rule of thumb would only serve to
harden the arteries of what should be a flexible discretion. What is needed is
an objective conspectus of all the facts. Thus a slight delay and a good explanation may
help to compensate for prospects of success which are not strong. Or the importance of
the issue and strong prospects of success may tend to compensate for a long delay. And
11 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at para 11.
12 2025 (1) SA 1 (CC).
13 1962 (4) SA 531 (A) at p. 532
the respondent's interest in finality must not be overlooked. I wo uld add that
discursiveness should be discouraged in canvassing the prospects of success in the
affidavits.’
[52] The Melane14 matter was referred to with approval in the matter of Chetty v Law
Society, Transvaal, in which the following was stated:15
‘The term "sufficient cause" (or "good cause") defies precise or comprehensive definition,
for many and various factors require to be considered. (See Cairn's
Executors v Gaarn 1912 AD 181 at 186 per INNES JA.) 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 a 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 fide defence which, prima facie ,
carries some prospect of success.16
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
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 o n the
ground that he had reasonable prospects of success on the merits.’
[53] The first respondent issued summons against the applicant on 24 January 2024,
and service was effected on 16 February 2024.
[54] On the same day (16 February 2024) Ngese sent a query to the attorneys of
record of the first respondent, on the instruction of Maepa, requesting information
in order to allow the matter to be investigated internally. No such information
was forthcoming.
was forthcoming.
[55] Faced with a letter on 6 May 2024, which disclosed the existence of the default
judgment order, Ngese sent a further email on 7 May 2024 to the first
respondent’s attorneys of record, alerting them to the email she had sent on 16
14 Supra.
15 1985 (2) SA 756 (A) at p. 765.
16 Authorities omitted.
February 2024. This email received no response, but was followed (over a
month later, on 12 June 2024) by the Sheriff attaching the applicant’s assets
pursuant to a warrant of execution. This application was issued on 21 June 2024
– about nine days after the arrival of the Sheriff.
[56] I do not view the above as an unreasonable delay on the part of the applicant. It
was clear that the applicant (which, as a public higher education institution,
inevitably suffers the effects of cumbersome and unwieldy procurement
requirements) was attempting to gain clarity on the first respondent’s claim, with
no assistance from the first respondent. Once it became clear that the first
respondent was not intending to assist, the applicant launched the current
application with only a very brief delay.
[57] I am therefore satisfied that the failure in question was not wilful.17
[58] In regard to the application being bona fide , with a bona fide defence which
carries reasonable prospects of success, it must be noted that fraud as a ground
for rescission of an order may take any form and is not limited to perjured
evidence or ‘fraud committed during proceedings’.18
[59] On the assumption that the four contracts referenced by the first respondent in its
particulars of claim are not relevant to the first respondent’s claim, what remains
glaringly absent from the first respondent’s papers is any reference to the name
of the allegedly duly authorised person who signed the settlement agreement
(which, according to the first respondent, is not in fact a settlement agreement)
on behalf of the applicant. This is information which would be peculiarly within
the knowledge of the fi rst respondent, given the applicant’s professed lack of
knowledge in this regard.
17 See Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at pp. 352 – 353.
18 See Schierhout v Union Government 1927 AD 94 at 98 and Rowe v Rowe 1997 (4) SA 160 (SCA) at 166H.
[60] There is thus no way to assess the validity of the promissory
note/acknowledgment of debt/settlement agreement, and the first respondent’s
inexplicable refusal to answer w hat is a very simple question, lends credence to
the reasonable suspicion that the promissory note/acknowledgment of
debt/settlement agreement is the product of fraud.
[61] The first respondent elected not to address the provenance of the promissory
note, an d thus engineered the need for these aspects to be appropriately
ventilated at trial. This would, additionally, be in the interests of justice, as the
applicant is a public higher education institution that is funded inter alia by the
public purse. This would particularly be so, since a university is viewed as an
organ of state, where service level agreements are potentially involved.19
[62] The applicant, furthermore, pointed to the potential defence of prescription, as
summons wa s issued more than three years after May 2020 (which was when
the particulars of claim alleged that the first respondent concluded its work).
Such a defence is, prima facie, a bona fide defence when one has regard to the
timeline in this matter.
Conclusion
[63] Having considered all of the above, I am inclined to exercise my discretion in the
applicant’s favour.
19 See Harrielall v University of KwaZulu -Natal 2018 (1) BCLR 12 (CC) at para 15 ; Corruption Watch (NPC) (RF) v
Chief Executive Officer of the South African Social Services and Others (21904/2015) [2018] ZAGPPHC 7 (23 March
2018) at para 12 and Maluti-A-Phofung Local Municipality v Kill Crime Security Service (Pty) Ltd and Others
(2237/2023) [2025] ZAFSHC 24 (30 January 2025) at paras 11 and 13.
Costs
[64] The applicant, in the notice of motion, essentially only requested costs in the
event of opposition. The first respondent requested, in the event it was
successful, costs on a punitive scale, on scale B. During the hearing of the
matter, a punitive costs order was requested by the applicant.
[65] The first respondent’s answering affidavit demonstrated an unfortunate tendency
to be deliberately obtuse and focus on semantic differences in wording in regard
to the technical issues raised in opposition.
[66] The answering affidavit, additionally, engaged in unfounded and scurrilous
accusations. The deponent to the founding affidavit (M aepa) was accused of
belligerently and intentionally persisting with the default in delivering a notice of
intention to defend (despite Maepa’s position within the applicant being in
dispute); it was averred that it was astonishing that Maepa was not embar rassed
to approach this court; that Maepa was intentionally misleading the court; Maepa
was (essentially) incompetent; Maepa engaged in recalcitrant and unreasonable
conduct; insulted the court and was disingenuous.
[67] The above-mentioned approach, which s ought to malign the good character and
integrity of the deponent to the founding affidavit (particularly under
circumstances where the first respondent failed to name the person who signed
the settlement agreement on behalf of the applicant) is to be depre cated, with a
suitable costs order reflecting the necessary disapproval.
[68] The cost of counsel on scale C is, in my view, warranted, as the first respondent
raised a plethora of technical points, which the applicant was required to
address.
Order
The following order is hereby issued:
(a) The default judgment granted on 2 April 2024 against the appellant, is
hereby rescinded.
(b) The time periods set out in the Uniform Rules of Court will apply to the
further conduct of this matter, and such time periods are t o be calculated
as commencing from the date of this order.
(c) The first respondent is to pay the costs of this application, on an attorney
and client scale, on scale C.
____________________
N MOLONY
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: Adv Cole SC instructed by
Godongwana and Partners Inc.
c/o Mili Attorneys
MAKHANDA
For the First Respondent: Adv Sephton instructed by
Bouwer Cardona Inc.
c/o Wheeldon, Rushmere & Cole Inc.
MAKHANDA
Heard on: 4 December 2025
Judgment delivered: 14 April 2026