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Heard on: 26 February 2026
Delivered on: 24 April 2026
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is electronically circulated to the parties/their legal representatives by e-
mail and by uploading it to the electronic file of this matter on Caselines. The date for
hand-down is deemed to be 24 April 2026.
JUDGMENT
KEKANA AJ
Introduction
[1] This is an application for rescission of the default judgment granted by Fisher J
on 21 May 2025 in favour of the Respondents. The Respondent s oppose the
application on grounds inter alia that there was wilful default and that there is no bona
fide defence on the part of the Applicant.
Background
[2] The Respondents (plaintiffs in the main action ) claimed delictual damages
arising from power failures at the Tshwane Fresh Produce Market from 19 to 24
January 2023. The damages suffered were, according to the Respondents caused by
the Applicant's (defendant in the main action) gross negligence in failing to comply with
its statutory duties under the Tshwane Market by-law, the Agricultural Produce Agents
Act 12 of 1992, and related rules to provide proper infrastructure, inter alia, at the
Tshwane Fresh Market precinct (the Market).
[3] There was a mandamus application instituted by the Institute for Market Agents
(IMASA) and the Respondents under case number (2120/2022) where Meersingh J
granted an order , inter alia, ruling that the damages occurred as a result of the
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Applicant’s failure to provide proper electricity and a backup system also ordering the
Applicant to submit within 60 days a draft precinct plan and a final precinct plan in 180
days of the order. The Applicant failed to comply with this order. IMASA subsequently
instituted an application for contempt of court against the Applicant; judgment was
reserved on 14 August 2024. On 23 January 2023, a letter of demand was sent to the
Applicant and on 26 January 2023, the Applicant invited the Respondents to submit
their claims by way of a letter and supporting documentation.
[4] On 14 March 2024, the Respondents submitted their claims together with the
necessary supporting documentation to the Applicant. Mr Mphago, an employee within
the municipality, was appointed by the Applicant to handle the claims. Engagements
with him date as far back as April 2023. On 23 April 2023, the Applicant’s Department
of Delictual and Contractual and Litigation Recovery informed the Respondents that
the claims have been submitted to the Applicant’s insurer for further handling. There
was no response from the Applicant to the claims.
[5] Later on, 12 February 2024, the Applicant issued and served summons for the
delictual claim and damages suffered . Again, because of the purported inaction due
to some communication mishaps, the matter was argued on 9 May 2025, and the
Court granted condonation in terms of section 3 of Act 40 of 2002. After argument on
the merits and quantum of the action, the matter stood down for heads of argument to
be filed on the issues in the action. Heads were filed on 12 May 2025, and on 21 May
2025, Fisher J granted in favour of the Respondents, the judgment that the Applicant
seeks to rescind. This judgment was served on 9 June 2025 at the same addresses
provided by the applicant.
Submissions by parties
[6] The Applicant makes several submissions that:
6.1 failure to file a notice of intention to defend was a clerical error occasioned
6.1 failure to file a notice of intention to defend was a clerical error occasioned
by an incorrect email address being used to dispatch the notice;
6.2 there exists a bona fide defence to the Respondent claim for damages
which can be summarised as follows:
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6.2.1 the Respondent’s case is further met by a substantive defence on
causation, both factual and legal, including whether the losses
alleged are sufficiently closely connected to the Applicant’s
conduct for liability to ensue, and whether intervening events and
operational realities break or attenuate the causal chain;
6.2.2 the Respondent s has not established locus standi/own loss in
respect of the heads of damage claimed;
6.2.3 the Respondents’ claim is one for pure economic loss arising from
an alleged omission, and is therefore not prima facie recoverable;
6.2.4 the Respondents ’ pleaded case raises material and triable
questions concerning wrongfulness and legal duty, including
whether it is consonant with public and legal policy to impose
delictual liability on a municipality for downstream commercial
losses alleged to have aris en from a service interruption at the
Market.
[7] The Respondents contend that:
7.1 there exists n o basis for rescission under Rule 42(1)(a) , t he Applicant
admitted receipt of the summons. The Applicant’s default is due to their own
negligence, by inter alia, failing to serve a notice of intention to defend. There
is no procedural irregularity on the part of the Respondents;
7.2 n o good cause shown under Rule 31(2)(b) or common law ; again, no
reasonable explanation for default exists; gross negligence has been displayed
throughout.
7.3 The applicants appointed their attorneys late (25 April 2024); no proof of
service exists. After being informed of non -receipt on 7 November 2024, no
remedial steps were taken to rectify the issue. Failure by the Applicant to draft
a plea for more than the supposed 16 months after the relevant periods expired,
furthermore, constitutes wilful default;
7.4 the Respondents further contend that t he rescission application was
brought out of time.
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Issues
[8] The crisp issue for determination before this Court is whether the Applicant was
able to show “good cause” in terms of Rule 31(2)(b) of the Uniform Rules of the High
Court, alternatively under common law, and whether the Applicant discloses a bona
fide defence with prospects of success.
Point in Limine
[9] The Respondents contend that the founding affidavit by Mr Makgata is defective
and does not constitute admissible evidence. That it contains allegations which are all
hearsay and unconfirmed by an affidavit from the official who can actually testify
thereto. That the founding affidavit must be disregarded. I am of the view that while Mr
Makgata may not have personal knowledge of facts, he may be conversant with facts.
Knowledge of facts is required in summary judgments, while being conversant with
facts will be sufficient for these motion proceedings.
Legal principle and analysis.
[10] I will now turn to the contention raised that the Applicant’s rescission application
is out of time. I agree with Eksteen AJA in Van Heerden at para [11]1 where it is stated
that:
“even peremptory provisions of the rules may, in appropriate circumstances, be
condoned. The test, it seems to me, is whether any potential prejudice results
to a party affected.”
[11] Upon careful analysis of the entire case , I am of the view that the Applicant’s
lateness by just a day and further that the Respondents have not demonstrated how
lateness by a day would result in them being prejudiced, and it is for this reason that
this Court is of the view that it will be in the interests of justice to respond in affirmative,
condone the lateness and allow the application.
1 Van Heerden v Bronkhorst (Case no 846/19) [2020] ZASCA 147.
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[12] The Applicant initially brought an application in terms of both Rule 42(1)(a) and
Rule 31(2)(b) , however, i n paragraph 40.2 of its replying affidavit , the Applicant
abandons the Rule 42(1)(a) application and is only proceeding on Rule 31(2)(b), and
for that reason, I do not intend to delve into the legal principles applicable to Rule
42(1)(a). I will only confine myself to Rule 31(2)(b).
[13] Rule 31(2)(b) states that:
“A defendant may within 20 days after acquiring knowledge of such judgment
apply to court upon notice to the plaintiff to set aside such judgment and the
court may, upon good cause shown, set aside the default judgment on such
terms as it deems fit.”
[14] For the Applicant to succeed in a rescission application, it must satisfy the Court
that it has a bona fide defence to the Plaintiff’s Particulars of Claim. 2 Eksteen AJA3
held that:
“...An applicant for rescission of judgment taken by default against him is
required to show good cause. Whilst the courts have consistently refrained from
circumscribing a precise meaning of the term ‘good cause’, generally courts
expect an applicant to show ‘good cause’ (a) by giving a reasonable explanation
of his default; (b) by showing that his application is bona fide; and (c) by showing
that he has a bona fide defence to the plaintiff’s claim which, prima facie, has
some prospect of success.”
[15] The explanation provided by the Applicant that there was a clerical error
occasioned by an incorrect email address being used to dispatch the notice of intention
to defend is , to me, an inexcusable inefficiency on the Applicant’s part. Mr Mphago
who was handling claims for the m unicipality, was already aware of the correct email
address of the Respondents’ attorney of record. Again, the Applicant was made aware
of the error or became aware of the error on 7 November 2024, but still did nothing to
cure or remedy the situation. The Applicant had from this day (7 November 2024) till
cure or remedy the situation. The Applicant had from this day (7 November 2024) till
the date the default judgment was granted to remedy the error of an incorrect email
address used. It is difficult to say there is a reasonable explanation. The Applicant, by
2 Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) at 476-477.
3 Van Heerden (supra).
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its own admission, concedes in paragraph 21 of its heads of argument that it took no
steps to rectify their various oversights . These concessions cannot be ignored in the
determination of wilful default. There is nothing brought before this Court to explain
this inaction to cure the error; the conclusion is strong that there was deliberate
inaction on the part of the Applicant.
[16] A notice of intention to defend must be followed by a plea; the Applicant could
not show this Court that such a plea was filed and served , which raises a suspicion
whether the Applicant had genuine intentions to defend the matter. The Applicant
alleges it has already taken steps consistent with that intention but fails to show those
steps. The Applicant uses its conduct after it became aware of the default judgment .
Unfortunately, in determining whether a litigant is a wilful defaulter, the Court looks at
the conduct of the party prior to the default judgment being granted, not afterwards. A
party must explain why it failed to file a notice to defend or appear before the default
judgment was granted.
[17] The second crisp issue to be determined is whether the Applicant has a bona
fide defence or prospects of success. The Court had to look at various submissions
made by the Applicant to demonstrate prospects of success. Regarding the locus
standi of the Resp ondents, the Respondents were able to prove their standing as
market agents and the corresponding fiduciary duty to account and pay the producers
for their produce from their trust account. The market agent acts in a fiduciary capacity
for and on behalf of the farmer/producer and has to apply for a fidelity fund certificate
in terms of section 16(3)(a), open a trust account in terms of section 19(1) of the
Agricultural Produce Agents Act, 12 of 1992. The Respondents each confirmed that
they paid the farmers/producers in full, even though the produce had to be sold at
reduced prices or discarded as a result of the power failure.
reduced prices or discarded as a result of the power failure.
[18] As regards the legal duty of the Applicant to pay for the damages, it has been
shown that the Applicant invited claims on 26 January 2023 to be submitted to its
insurer, exercising its discretion in accordance with by-law section 7(2). These
invitations to submit claims were in themselves an acknowledgement by the Applicant
of its liability and legal obligations.
[19] There was a Court order finding fault on the part of the municipality. A court
order is, by its nature, a legal instruction which creates a legal duty to be complied
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with. Once a valid court order exists, a legal duty immediately falls on the person bound
by it, to obey its terms unless and until it is set aside or varied by a court of competent
jurisdiction. This duty exists regardless of whether the person agrees with the order or
believes it is incorrect. If the Applicant was not happy with it, it ought to have returned
to court to seek rescission or relaxation of its terms.
[20] The Applicant failed to remedy the electrical infrastructure and upgrade it as
ordered by this Court on 31 October 2022, which triggers non -compliance with the
Court order; there was no rescission of this order by the Applicant. Absent the order
being rescinded, the Applicant had no option but to comply with the order and upgrade
the infrastructure at the Market as directed by this Court.
[21] It was mentioned by Mlambo J in the case of Southern Africa Litigation Centre
v Minister of Justice and Constitutional Development and Others4 that:
"A democratic State based on the rule of law cannot exist or function, if the
government ignores its constitutional obligations and fails to abide by Court
orders. A Court is the guardian of justice, the corner -stone of a democratic
system based on the rule of law. If the State, an organ of State or State official
does not abide by Court orders, the democratic edifice will crumble stone -by-
stone until it collapses and chaos ensues".
[22] It cannot be correct for the Applicant to ignore Court orders, the value and the
corresponding obligations of those Court orders. Since the se orders were served on
the Applicant, they gave rise to a legal duty ; it is so quirky for the Applicant to now
approach this Court and to think it can successfully raise the absence of a legal duty
on its part as a bona fide defence. That duty was dealt with in the Court order granted
by Meersingh J. If the Applicant was not happy with it, it ought to have returned to court
by Meersingh J. If the Applicant was not happy with it, it ought to have returned to court
to rescind the judgment . This was not done which means that the Applicant did not
disagree with the duty imposed. T here was a contempt of Court order application,
which again the Applicant did not challenge. These piling and unchallenged Court
orders created a legal duty on the part of the Applicant.
[23] As regards damages, they were proven with admissible evidence, with expert
and confirmatory documents submitted since 2023, first to the Municipality, then to its
4 (27740/2015) [2015] ZAGPPHC 402 at para 37.2.
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insurer, and finally to the Court. The municipality did not at any stage pronounce on
the inaccuracy of the claims , not even the insurer of the Applicant. No explanation is
provided by the Applicant for its inaction during this process. But what can be deduced
from this process is that at no stage did the Applicant exonerate itself from liability; i t
therefore cannot be correct that this aspect of the matter is used as a reason to support
an argument that the matter is to be reheard.
Conclusion
[24] There was no explanation provided by the Applicant for the six months period
of inaction. The Applicant must account for the entire period, and this was not
achieved. There is an interplay between the three requirements for "good cause"
(explanation for default, bona fide intention to defend, and prospects of success).
While all three must be present, they must be applied flexibly and holistically, weighting
them against each other. An absence of any explanation for the default is
fundamentally fatal to the application. The three requirements are cumulative, but a
complete lack of an e xplanation is a deal -breaker. It is well-established principle that
an applicant who fails to give a reasonable explanation for the default cannot succeed,
irrespective of what their prospects of success are. The explanation is a threshold
requirement. If it is absent or completely unacceptable, the court does not even need
to consider the strength of the defence.5
[25] This matter has already been pending with various Court orders obtained, all
attributing a responsibility on the part of the Applicant. Courts are also there to promote
consistency, efficiency, and certainty in the legal system; hence, finality is paramount
to serve the interests of justice. In the result, the Applicant failing to give an acceptable
explanation and again failing to sh ow good cause for a rescission order under Rule
31(2)(b) the Applicant is not entitled to rescission in terms of common law. The
31(2)(b) the Applicant is not entitled to rescission in terms of common law. The
application for rescission should fail.
Costs
5 De Wet and Others v Western Bank Ltd 1979 (2) SA 1031.