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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 1868/2023
In the matter between
TEBOHO JAPTHA MOHAPI APPLICANT
And
NEDBANK LIMITED FIRST RESPONDENT
LIBUSENG MARY MOHAPI SECOND RESPONDENT
Neutral citation: Mohapi v Nedbank LTD and A nother (1868/2023) [2026] ZAFSHC
259 (17 April 2026)
Coram: NTSHULANA AJ
Heard: 21 August 2025
Delivered: 17 April 2026.
Summary: Rescission of default judgment – iustus error – principles restated.
ORDER
1 Application for rescission of judgment is dismissed
2 Applicant to pay the costs
JUDGMENT
Ntshulana AJ
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[1] This is an application for rescission of a default judgment granted by this
honorable court in favor of the first respondent against the applicant on the 6 February
2025 by the honorable acting judge S. Grobler, declaring the immovable property jointly
owned by the applicant and the second respondent to be especially executable.
[2] The following order was made by Grobler AJ and reads as follows:
‘
It is ordered that:
1. The immovable property known and described as: ERF 9 […] H[…] (extension 20),
district Bloemfontein, Province Free State in extent: 291 (two hundred and ninety one)
square meters held by deed of transfer T16202/2008, subject to the conditions therein
contained, is declared especially executable.
2. The registrar is authorized and instructed to issue a writ against the immovable property
namely 9[…] H[…] l (extension 20), situate house no. 9[…] G[…] , H[…] .
3. A reserved price is set at R340 000.00 (three hundred and forty thousand rand).
4. Should the reserved price in prayer 3 not be reached at the auction where the
abovementioned property is to be sold, the matter must be dealt with in terms of Rule 46 A.
5. Respondents shall pay the costs of the application.’
[3] It appears that the applicant is seeking the rescission of the order granted on 6
February 2025 with costs being borne by the first respondent. It is difficult to follow or
understand whether there is other relief sought by the applicant or whether the applicant
is merely complaining about the treatment he received at court as he has been
representing himself and appeared on his own.
[4] The applicant contends that , as a lay person without legal representation, the
court is unwilling to consider arguments presented by him personally and without an
‘authority presence’. He contends that no court is willing to hear any submissions made
by him during proceedings preceding the granting of the order by the court.
by him during proceedings preceding the granting of the order by the court.
[5] The applicant further asserts that the order granted against him wa s prejudicial,
as it does not acknowledge his right to legal representation as guaranteed under s 35,
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or his right to be heard in terms of s 34, of the Constitution. He also contends that there
was no urgency justifying the granting of default judgment on 6 February 2025.
[6] The court file clearly shows that the court was very patient with the applicant
and it considered his arguments regardless of his status as a lay person without legal
representation. On 12 December 2024, when the applicant appeared in person before
this honorable court and made submissions that the matter should be removed from the
roll in order to allow him time to obtain legal representation, the court listened to him.
The court was not minded to remove the matter from the roll and consequently, granted
a postponement to 6 February 2025.
[7] The court order of 12 December 2024, reads as follows:
‘It is ordered that:
1 The matter is postponed to 06 February 2025 to the unopposed roll for first
respondent to obtain legal representation, final postponement for this purpose.
2 Wasted costs for the day to stand over for later adjudication.’
[8] On 12 December 2024, the court clearly informed the applicant that this could
be the final postponement granted to enable him to secure legal representation. On 06
February 2025, the applicant once again appeared in person, without legal
representation, and requested another postponement in order to obtain legal
representation.
[9] The applicant was unable to provide cogent or sufficient reasons as to why he
had not secured legal representation since 12 December 2024. The applicant further
made submissions to the court as to why judgment or an order should not be granted
against him, despite the applicant's failure to file the necessary opposing affidavit. After
hearing submissions and considering the applicant's request , the court dismissed his
application for postponement and proceeded to grant the order.
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[10] The applicant's case is likely arguing that the judgment was granted erroneously
and on this ground the court should consider rescission of the judgment. He argues that
‘it is the most embarrassing default judgment granted on behalf of Nedbank legal
representative.’ From this point the applicant takes the off -ramp and indulges in
attacking the legal representative of the first respondent.
[11] In opposition of this application, the first respondent raises one point in limine
aimed at dismissing the application in its entirety. It submitted that this application wa s
fatally flawed as the applicant could only seek rescission of an order under rule 42 of
the Uniform Rules of Court, the common law, or r ule 31(2)(b) of the Uniform Rules of
Court. It argues that , with respect, the applicant has failed to establish a valid case for
rescission under any of these grounds.
[12] It is trite that an application for rescission of judgment can be brought in terms
of rule 31(2)(b) or under r ule 42 (1) of the Uniform Rules of court or common law. In
terms of Rule 31 92) (b) the applicant must show a good course and set out a bona fide
defense. In terms of Rule 42 (1) a good course exists where an order or judgment was
wrongly sought in the absence of any party, where there is ambiguity, a patent error or
omission to the extent of such ambiguity or an order was granted as a result of a
mistake common to the parties.
[13] It is convenient at this juncture to first deal with issue of compliance with the
provisions of the National Credit Act , namely s 129 read with s 130. It is either common
cause, or had not been sufficiently challenged or refuted so as to create a
preponderance of probabilities in favour of the applicant, that:
a) The agreement between the parties is a credit agreement as defined,
contemplated and envisaged in the National Credit Act 34 of 2005.
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b) The first respondent has complied with ss 129 (1) (a) and 130 of the
National Credit Act. On the 23 March 2023, a notice in terms of s 129 (1) (a) was
delivered by the first r espondent to the applicant by registered post, as well as
ordinary mail to the a pplicant/ defendant's domicilium address being 1[ …] S[…] ,
Botshabelo, 9781, and to applicant and second r espondents/defendants, by
registered post, as well as ordinary mail to the d efendants' bonded property ,
being House no. 9[ … ] G[…] , H[…] , 9306. A copy of the notice, proof of postage
and the ‘track and trace’ report from the website of the post office is attached on
papers as Annexure ‘D1’ – ‘D16’, respectively.
c) The applicant and second respondent failed to respond to the s 129 notice
prior to the institution of the these proceedings and they were in default as the
account was in arrears for at least over twenty (20) business days. The first
respondent then issued summons in this matter.
[14] In the case of Blue Chip 2 (Pty) Ltd v Ryneveldt ,
1 the Supreme Court of Appeal
pointed out that delivery to a debtor of the notice referred to in s 129(1) (a) of the
National Credit Act is a material element of the cause of action. Section 129(1)(a) of the
National Credit Act requires that the notice which it prescribes must be given in writing
to the debtor and must be brought to his or her attention. It can be made available to
him or her in a manner prescribed for delivery of notices. In terms of s 96(1) , whenever
a party to a credit agreement is required or wishes to give legal notices to the other
party for any purposes contemplated in the agreement, the NCA or any other law, the
party giving notice is to deliver that notice to the party at (a) the address of the other
party as set out in the agreement (unless paragraph (b) applies ), or (b) at the address
most recently provided by the recipient in accordance with subsection (2) . The notice
most recently provided by the recipient in accordance with subsection (2) . The notice
can be delivered in person, by registered post or ordinary mail, fax or email.
[15] In the C onstitutional Court matter of Sebola and Another v Standard Bank of
South Africa LTD and Another,2 the Court held that where the credit provider seeking to
1 Blue Chip 2 (Pty) Ltd v Ryneveldt and Others [2016] ZASCA 98; 2016 (6) SA 102 (SCA).
2 Sebola and Another v Standard Bank of South Africa LTD and Another (Socio-Economic Rights
Institute of South Africa, National Credit Regulator and Banking Association South Africa as Amici Curiae)
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enforce a credit agreement, avers and proves that the notice was delivered to the
consumer, proof of registered di spatch of the notice and that it reached the appropriate
post office for delivery to the consumer, will in the absence of contrary indication,
constitute sufficient proof of delivery thereof to the debtor. In this case , I am satisfied
that the first r espondent had sufficiently complied with the requirements of s 129, as
read with s 130 of the NCA and that delivery of the n otice to the applicant and second
respondent had taken place.
[16] Generally speaking, once a court has pronounced upon a matter finally it has no
authority to alter its own order. There are, however, three grounds on which an o rder of
the High Court can be rescinded. These are set out in r ule 31(2) (b) and 42 of the
Uniform Rules of Court and also the common law.
[17] Briefly, rule 31(2)(b) makes provisions for the setting aside of a default judgment
in cases where the claim is not for a debt or liquidated demand. The application for
rescission must be delivered within 20 days after the applicant bec ame aware of the
judgment and he or she must show good cause as to why the judgment should be
rescinded, namely (a) he or she must give a reasonable explanation of his or her
default; (b) the application must be a bona fide; and (c) he or she must have a prima
facie bona fide defense to the claim against him or her.
[18] Rule 42(1) (a) provides for three distinct rescission or variation procedures,
including instances such as in the present matter in which the judgment is said or
alleged to have been erroneously sought or erroneously granted in the absence of a
party affected thereby; where there is ambiguity, a patent error or omission to the extent
of such ambiguity or where an order was granted as a result of a mistake common to
the parties. In general terms, a judgment will have been erroneously granted if there
the parties. In general terms, a judgment will have been erroneously granted if there
existed at the time of its issue a fact of which the court was unaware, and which fact
would have induced the court not to grant the judgment.
[2012] ZACC 11; 2012 (5) SA 142 (CC).
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[19] On the other hand, at common law , a judgment can be set aside on grounds of
fraud, iustus error, if new documents come to light and in the case of default judgments,
where good cause for rescission is shown. In Colyn v Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape)3 the following was said in regard to the requirement of good
cause:
‘In order to succeed an applicant for rescission of a judgment against him by default
must show good cause . . . The authorities emphasize that it is unwise to give a precise
meaning to the term "good cause". As Smalberger J put it in HDS Construction (Pty) Ltd
v Wait:
"When dealing with words such as "good cause" and "sufficient cause" in the other
Rules and enactments the Appellate Division has refrained from attempting an
exhaustive definition of their meaning in order to abridge or fetter in any way the wide
discretion implied by these words . . . The meaning in order to abridge or fetter in any
way the wide discretion implied by these words. The Court's discretion must be
exercised after a proper consideration of all the relevant circumstances.”’4
[20] Quite clearly the court has a wide discretion in evaluating ‘good cause’ in order
to ensure that justice is done between the parties. Of considerable importance is the
fact that a good defense can compensate for a poor explanation for the default and vice
versa.5
[21] I am satisfied that on the day the judgment or order was granted it was not
erroneously granted. It appears that the applicant placed undue reliance on incorrect
information or correspondences between himself and some employees of the first
respondent and his ex -wife. These correspondences are disputed (and/or were later
withdrawn after the second respondent raised concerns) by the respondents. Further,
3 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA).
4 Ibid para 11.
5 See in this regard Zealand v Milborough 1991 (4) SA 836 (E) and Smith v Saambou Bank Ltd 2002 (6)
SA 346 (SE).
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all the letters and correspondence relied upon by the applicant fails to address or
dispose of the onus put squarely on the applicant in terms of the rules and common law.
This Court encourages the p ossible discussions of settlement between the parties in
order to resolve the issues amicable. Thi s, however does not mean that the onus in
terms of rule 31(2)(b), rule 42, and/or common law has been satisfied by the applicant.
[23] In my view, his defenses are raised in an attempt to muddy the waters or mislead
this court. Consequently, the applicant's application for rescission falls to be dismissed. I
therefore make the following order:
1 The application for rescission of judgment is refused.
2 The applicant to pay the costs.
X NTSHULANA
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Appellant: TJ Mohapi
In person
For the First Respondent: D Naude
Instructed by: Hill, McHardy & Herbst
Bloemfontein
For the Second Respondent: No appearance