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[2026] ZAGPJHC 487
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Monama and Another v FirstRand Bank Limited t/a Wesbank (Ex-Tempore) (145679/2024) [2026] ZAGPJHC 487 (9 February 2026)
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 145679/2024
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In
the matter between:
ANETTE
PARANE MONAMA
First Applicant
DAVID
MOETJI
Second Applicant
and
FIRSTRAND BANK LIMITED
T/A WESBANK
Respondent
EX-TEMPORE
JUDGMENT
Mahosi J
Introduction
[1]
The first applicant,
Anette
Parane Monama (“Ms. Monama”),
brought an application for an order
to rescind the default judgment granted by this Court on 05 March
2025 in favour of the respondent,
FirstRand Bank Limited t/a WesBank
(“WesBank”), in terms of which the agreement between the
parties was terminated.
Ms. Monama was ordered to return a motor
vehicle, and the determination of the quantum of WesBank’s
claim for damages was
postponed.
[2]
WesBank opposed this
application and
raised
the point
in limine
regarding the misjoinder of the second applicant, Mr. David Moetji
(“Mr. Moetji”), arguing that he has no interest
in the
matter. Ms. Monama conceded this point in the heads of argument and
during the hearing. To the extent that
Mr.
Moetji has no contractual, statutory, or judicial relationship with
any of the parties in the original action, nor does he allege
a right
or obligation that the outcome of these proceedings could impact, he
has no interest in the matter.
Thus,
WesBank’s point ought to be upheld.
Background
[3]
Ms.
Monama
and
WesBank entered into an instalment sale agreement (“the
agreement”) on 01 March 2022 for the sale of
a
Volkswagen Polo GP 1.2 TSI Comfortline (66kW) ("the motor
vehicle")
.
WesBank
performed all its obligations under the agreement by delivering the
motor vehicle to Monama. Ms Monama breached the agreement
in that, on
26 September 2024, she was in arrears of R39 670.70.
[4] On 08 February
2024, Ms Monama applied for debt review, which did not result in any
resolution. On 07 October 2024, WesBank
terminated the review in
terms of section 86 (10) of the NCA, having provided the requisite
notice to the applicant, the debt counsellor,
and the National Credit
Regulator. Ms. Monama remained in arrears and failed to
surrender the vehicle.
[5] On 23 January
2025, WesBank instituted action for the return of the motor vehicle
by serving the combined summons at Ms
Monama’s chosen
domicilium
address and on Ms Monama’s sister. The
summons granted Ms Monama 10 days to file the notice of intention to
defend,
expiring on 06 February 2025, and a further 20 days
thereafter to file a plea, expiring on 05 March 2025. Ms Monama
failed
to file the notice of intention to defend by 06 February 2025.
WesBank applied for default judgment, which was granted on 05 March
2025. On 25 March 2025, Ms. Monama filed a notice of intention
to defend and a plea. Thereafter, she launched the present
rescission
application on 31 March 2025.
Ms. Monama’s
case
[6] Ms. Monama’s
main contention is that, firstly, WesBank applied for default
judgment before the deadline for filing
the plea had expired, that
is, before 05 March 2025, and obtained a judgment on the very day.
Secondly, Ms. Monama claims
that she was not served with the
application for default judgment. Thirdly, she alleges that her
failure to file the notice of
intention to defend timeously was not
wilful. Instead, she attributes the delay to a medical condition,
which caused her to be
absent from work and resulted in her sister
delivering the summons to her late.
[7] Fourthly, Ms.
Monama alleges that she has a
bona fide
defence. In this
regard, she claims that the breach was not entirely her fault, as the
debt counsellor’s action and the respondent’s
subsequent
failure to resume deductions after the debt review was cancelled,
contributed to the arrears. In her plea, Ms.
Monama proposes a
repayment plan of R3 000,00 per month and an extension of the
contract. Fifthly, she contends that the repossession
of the vehicle
would cause her severe prejudice as she uses it to transport her
children to school and to attend hospital appointments.
WesBank’s
defence
[8] WesBank opposes
the application on the ground that Ms. Monama is in clear and
admitted breach of the agreement, with significant
arrears that
continued to escalate. It contends that the service of the summons
was properly effected at the chosen
domicilium
address, and Ms
Monama’s failure to file the notice of intention to defend by
06 February 2025 entitled the respondent to
seek default judgment. On
the issue of the notice of set down for default judgment, WesBank
avers that it has no legal obligation
to notify Ms. Monama of the
application for default judgment because she was already in default
in failing to file a notice of
intention to defend. WesBank argues
that it was perfectly entitled to issue the application for a default
judgment on 04 March
2025, as the deadline for the notice of
intention to defend had expired. WesBank further contends that Ms.
Monama has failed to
show good cause for rescission, as her
explanation for the default is unsatisfactory. While WesBank noted
Ms. Monama’s medical
condition, it argued that it was not
sufficiently linked to the specific failure to act within the
required time.
[9] WesBank
contends that Ms. Monama has not demonstrated a
bona fide
defence in that her defence as pleaded appears to be a mere denial of
breach of and a proposal for debt restructuring, which does
not
constitute a triable issue on the merits of the respondent’s
claim for return of the vehicle based on breach. In addition,
WesBank
submitted that Ms. Monama previously brought an urgent application
for a stay of execution, which was struck from the roll
for lack of
urgency, with costs awarded against her. WesBank had already provided
an undertaking not to sell the vehicle pending
this rescission
application.
Legal principle and
analysis
[10] An application
for rescission of a default judgment in terms of rule 31 (2)(b)
requires the applicant to show good cause.
This entails a
reasonable and acceptable explanation for the default, the
application must be
bona fide
and not made with the intention
to delay, and the applicant must show a
bona fide
defence to
the applicant’s claim, which has some prospect of success.
[11] A judgment is
erroneously granted for purposes of rule 42 (1)(a) where there
existed at the time of its issue, a fact
of which the Court was
unaware, which would have precluded the granting of the judgment.
It is not sufficient that the defence
is later disclosed.
[12] In the current
matter, Ms. Monama’s explanation hinges on the late receipt of
the summons due to her medical condition,
and her sister’s
delay in passing it on. However, the law is clear that service
at the chosen
domicilium
address is effective service. The
applicant’s difficulty in personally receiving the documents
does not negate the legal
efficacy of the service. Her
explanation for failing to file a notice of intention to defend
within 10 days is therefore
not compelling. The default was,
therefore, wilful.
[13] Even if Ms
Monama’s default was not wilful, to resist a claim for the
return of goods under an instalment sale
agreement following breach,
she must raise a defence that goes to the validity of the claim. For
instance, that the agreement is
invalid, there was no breach, or that
the breach has been remedied. Ms. Monama does not deny entering into
the agreement, receiving
the vehicle, or falling into arrears. Her
defence as pleaded is essentially an appeal for indulgence. A
proposal to pay reduced
instalments does not constitute a legally
acceptable defence to WesBank’s accrued right, following breach
and termination
of the debt review, to claim return of the motor
vehicle. Thus, Ms. Monama discloses no triable issues.
[14]
Ms. Monama further contends that the judgment was erroneously granted
because the application was made before the
deadline
for filing the plea expired. This contention is factually and legally
unsustainable. WesBank’s right to apply for default
judgment
arose the moment Ms. Monama failed to file her notice of intention to
defend by 06 February 2025. The application for
default judgment was
issued on 04 March 2025, well after the right accrued. In terms of
Rule 31(2)(a) read with Rule 31(4),
WesBank
had no obligation to serve
Ms.
Monama
with a notice of
set down because
the
claim was for the return of specific property, with damages to be
determined later. She was further
in
default of the delivery of notice of intention to defend.
Rule
31 (5)(a) requires notice only where the claim is for a debt or
liquidated claim, which is not the case in this matter.
N
o
fact precluding judgment existed at that time. Thus, the Court was
not labouring under any error when it granted the judgment
on 05
March 2025.
Conclusion
[15] Ms. Monama has
failed to establish good cause for the rescission of the default
judgment. She has provided an inadequate
explanation for her default,
and more importantly, has failed to demonstrate that she has a
bona
fide
defence to WesBank’s claim, with any prospect of
success. Consequently, the application for rescission must fail.
Costs
[16]
WesBank has sought punitive costs. However, this
Court
is not persuaded that Ms. Monama’s application is so frivolous
or vexatious as to warrant a punitive costs order.
To
the extent that WesBank has been put to the expense of opposing an
unmeritorious application, there is no reason to depart from
the
general principle that costs should follow the results.
Order
[17] Accordingly,
the following order is made:
1. The point
in
limine
regarding the misjoinder of the second applicant is
upheld, and the second applicant is removed as a party to these
proceedings.
2. The application
for the rescission of the default judgment granted on 05 March 2025
is dismissed.
3. The first
applicant is ordered to pay the respondent’s costs of this
application on a party and party scale B.
D. Mahosi
Judge of the High
Court
Gauteng Division,
Johannesburg
Heard:
09 February 2026
Delivered:
09 February
2026
Appearances
For the first
applicant: In person
For the
respondent: Adv. M Arroyo
Instructed
by:
Strauss Daly
Incorporated c/o Trevor Swart Attorneys