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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-025198
(OLD CASE NO: 2016-30980)
DATE: 18 MAY 2026
In the matter between:
WILLEM ANDRIES HAMAN Plaintiff
and
ANTONY CHARLES PATRICK COTTERELL N O First Defendant
ANITA BHIKA N O Second Defendant
BRIDGET MARY NAUDÉ N O Third Defendant
[The above defendants are cited nomine officio in their
Official capacities as the duly appointed Trustees for the time
being of THE KEMPSTON MOTOR GROUP TRUST (TM334)]
Neutral Citation: Haman v Cotterell NO and Others (202 5-025198) [2026]
ZAGPJHC --- (18 May 2026)
Coram: Adams J
Heard: 4 May 2026
Delivered: 18 May 2026 – This judgment was handed down electronically by
circulation to the par ties' representatives by email , by being
(1) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
---
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 10:30 on 18 May 2026.
Summary: Practice – judgment and orders – rescission – application of
Uniform Rule 42(1)(a) in terms of which a court is empowered to set aside a
default judgment erroneously sought and granted in the absence of a party
affected thereby – defendants raising triable defence –
Application in terms of Uniform Rule of Court 6(15) to have struck out
paragraphs of the founding affidavit – on the basis that they contain
inadmissible hearsay evidence – application ill-advised – application to be
granted only if the applicant will be prejudiced if the application is not granted –
no prejudice proven – no case made out by the plaintiff that the matter sought to
be struck out is ‘scandalous, vexatious or irrelevant’ – plaintiff also failed to
demonstrate prejudice in the event of the offe nding paragraphs not being struck
out – application to strike out dismissed with costs –
Rule 42(1)(a) – an applicant need not show good cause or a bona fide defence
on the merits – enough to show that the order was erroneously sought or
granted – because of a procedural irregularity or because there were facts
which the court did not know that would have prevented it from granting the
order – in casu such a case made out by applicants for rescission –
Application for condonation and rescission granted.
ORDER
(1) The defendants’ late filing of their application for a rescission of the orders
granted by this Court on 30 November 2023 (per Cajee AJ) and 11 March
2024 (per Botsi-Thulare AJ) respectively, be and is hereby condoned.
(2) The orders granted by this Court, under case number: 2016 -30980,
against the defendants on 30 November 2023 (per Cajee AJ) and 11
March 2024 (per Botsi -Thulare AJ) respectively, be and are hereby set
aside and rescinded.
(3) The defendants’ plea and their defence in the main action be and are
hereby reinstated.
(4) The costs of the above opposed applications shall be in the course of the
main action instituted by the plaintiff against the first, second and third
defendants in their official capacities as the duly appointed Trustees for
the time being of the Kempston Motor Group Trust (‘the Trust’).
(5) The plaintiff’s counter-application to have struck out certain paragraphs in
the defendants’ founding affidavit, is dismissed with costs.
JUDGMENT
Adams J:
[1]. The litigation between the parties in t his matter, which came before me
as an opposed application on Monday, 4 May 2026, has had a long and a
tedious history, dating back to September 2016, when the plaintiff caused to be
issued out of this Court a combined summons against the first, second and third
defendants (‘defendants’) in their official capacities as the duly appointed
Trustees for the time being of the Kempston Motor Group Trust (‘the Trust’ ),
claiming a statement and debatement of account and a monetary judgment
based on an alleged employment contract between the plaintiff and the Trust. I
am referring to the parties as referred to in the main action.
[2]. In this opposed application the defendants apply for a rescission of two
orders granted by default by this Court against them respectively on 30
November 2023 and 11 March 2024 – one striking out the defendants’ plea and
the second granting default judgment against the m. The rescission is sought by
the defendants under the common law and in terms of Uninform Rule of Court
42(1)(a). The plaintiff is the respondent in this opposed application and he has,
in addition to opposing vigorously the defendants’ rescission application,
preferred a counter application against the defendants for an order striking out a
number of paragraphs in the founding affidavit of the defendants.
[3]. The question to be considered by me is simply whether the defendants
have made out a case for the rescission of the aforesaid court orders. That
issue is to be decided against the factual backdrop of the matter , as set out in
this judgment as and when I discuss the applicable principles relating to
rescission.
[4]. The plaintiff was employed by the Trust from October 2010 until his
dismissal in March 2015. He was employed as Group Parts Manager. In
September 2016, he instituted an action against the defendants claiming an
account and debatement of incentive payments allegedly due under his
employment contract. He contended that he was entitled to a commission of
2.5% of the Group parts gross profit of all the Trust’s dealerships.
[5]. From 2016 to 2019, the parties engaged in discovery. Then the matter
lay dormant for about four and a half years – from early 2019 until July 2023. It
was only in July 2023 that the plaintiff re -emerged, amending his particulars of
claim to limit his claim to the Trust’s Gauteng dealerships. What followed was a
flurry of correspondence and applications. The plaintiff’s attorney requested a
flurry of correspondence and applications. The plaintiff’s attorney requested a
pre-trial meeting. The defendants’ erstwhile attorney struggled to obtain
instructions. On 4 September 2023 – one day b efore the hearing of an
application to compel – the defendants’ attorney withdrew, citing a failure by the
defendants to provide instructions. The application to compel was granted on 5
September 2023, ordering the defendants to furnish dates for a pre -trial
conference.
[6]. The defendants did not comply. The plaintiff then launched an application
to strike out the defendants’ plea. That application was served on a Ms Leah
Kaschula, the Head of Legal of the Kempston Group, at 6 […] O[...] T[...] Road,
East London. On 30 November 2023, the court granted the striking out order.
Thereafter, the plaintiff applied for default judgment. That application was
served on a receptionist, Ms Mariska Hartzenberg, at the same address. On 11
March 2024, default judgment was granted. The default judgment was served
on Ms Kaschula on 2 April 2024.
[7]. The defendants only launched this rescission application in May 2025.
They also seek condonation for the late delivery of the rescission application
and, separately, for the late delivery of their replying affidavit. The plaintiff
opposes all relief sought and has brought a counter -application to strike out five
paragraphs of the founding affidavit as inadmissible hearsay.
[8]. Before addressing the rescission, I deal with the plaintiff’s counter -
application. The plaintiff seeks to have struck out – in terms of Uniform Rule of
Court 6(15) – paragraphs 28, 76, 82, 100 and 133 of the founding affidavit on
the basis that they contain inadmissible hearsay evidence.
[9]. I am of the view that the said application should fail. It is ill -advised and
should be dismissed.
[10]. Rule 6(15) reads as follows: -
‘(15) The court may on application order to be struck out from any affidavit any matter
which is scandalous, vexatious or irrelevant, with an appropriate order as to
costs, including costs as between attorney and client. The court may not grant
the application unless it is satisfied that the applicant will be prejudiced if the
application is not granted.' (Emphasis added).
[11]. In Helen Suzman Foundation v President of the Republic of South Africa
and Others1, the Constitutional Court held as follows at paras 27 and 28: -
'[27] Is the additional evidence scandalous, vexatious or irrelevant? Two requirements
must be met before a striking -out application can succeed: (i) the matter sought to be
struck out must be scandalous, vexatious or irrelevant; and (ii) the court must be
satisfied that if such a matter is not struck out the party seeking such relief would be
prejudiced.
[28] "Scandalous" allegations are those which may or may not be relevant but which
are so worded as to be abusive or defamatory; a 'vexatious' matter refers to allegations
which may or may not be relevant but are so worded as to convey an intention to
harass or annoy; and "irrelevant" allegations do not apply to the matter at hand and do
not contribute one way or the other to a decision of that matter. The test for determining
relevance is whether the evidence objected to is relevant to an issue in the litigation.'
(Emphasis added).
[12]. On the basis of this Constitutional Court authority, it is clear that the
plaintiff does not even begin to make out a case for the striking out of
paragraphs from the founding affidavit. No case – none whatsoever – is made
out by the plaintiff that the matter sought to be struck out is ‘scandalous,
vexatious or irrelevant ’. Moreover, the plaintiff has failed to demonstrate
prejudice in the event of the offending paragraphs not being struck out.
[13]. Accordingly, the application to strike out certain paragraphs falls to be
dismissed with costs,
[14]. I now turn my attention to the defendants’ application for c ondonation of
the late delivery of the rescission application, which was brought about thirteen
months after the default judgment was served on the defendants. That is a
months after the default judgment was served on the defendants. That is a
considerable delay. The defendants must provide a reasonable explanation.
1 Helen Suzman Foundation v President of the Republic of South Africa and Others 2015 (2) SA 1 (CC).
[15]. The explanation is this. The default judgment came to Ms Kaschula’s
attention in April 2024. She then investigated how the Trust had allowed a
default judgment to be taken in a matter that had been dormant for years. That
process took months because the events dated back more than a decade,
relevant employees had moved on, and the defendants’ erstwhile attorneys had
refused to hand over files because of an alleged fee dispute with other group
entities, not the Trust itself. Once the Trust’s present attorneys of record were
instructed in May 2024, they formed the view that the order was unenforceable.
They wrote to the plaintiff’s attorney on 7 June 2024, seeking agreement to
rescind. The plaintiff refused. The defendants then waited to see if the plaintiff
would take any steps to enforce the order. He did not. He sought only to collect
costs. It was only when the sheriff attempted to remove attached assets in April
2025 that the defendants appreciated that the order might be enforced against
them, and they launched this application.
[16]. Whilst the explanation for the delay may seem on the thin side, I do not
believe same to be so unreasonable as to be rejected out of hand. Moreover, in
view of my findings below, I conclude that the rescission application has good
prospects of succeed and, for that reason, condonation should be granted. The
point is that the explanation is not so deficient that condonation should be
refused outright. The delay must be weighed against the strength of the
defendants’ case for rescission. As will become apparent later on in this
judgment, that case is strong.
[17]. In that regard, see Junkeeparsad v Solomon and Another 2, in which the
position regarding condonation applications was stated as follows: -
[18]. ‘Factors which usually weigh with a court in considering an application for
condonation include the degree of non-compliance, the explanation therefor and
an applicant’s prospects of success on the merits. (See Ferris and another v
an applicant’s prospects of success on the merits. (See Ferris and another v
FirstRand Bank Ltd 2014 (3) SA 39 (CC) para 10; Federated Employers Fire &
2 see Junkeeparsad v Solomon and Another [2021] ZAGPJHC 48 (GJ 37003/2019 and 37456/2019, 7
May 2021).
General Insurance Company Limited & another v McKenzie 1969 (3) SA 360
(A) at 362F –G; Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Company Ltd and Others [2013] All SA 251 (SCA) para 11.) In
Valor IT v Premier, North West Province and Others 2021 (1) SA 42 (SCA) para
38, Plasket JA said that “very weak prospects of success may not offset a full,
complete and satisfactory explanation for a delay; while strong merits of
success may excuse an inadequate explanation for the delay (to a point)”.’
(Emphasis added).
[19]. Condonation should therefore be granted.
[20]. The same principles apply to the defendants’ application for c ondonation
for the late delivery of their replying affidavit.
[21]. The answering affidavit was delivered on 27 June 2025. The replying
affidavit was due by 11 July 2025. It was only filed on 6 October 2025 – a delay
of nearly three months. The defendants explain that the answering affidavit was
exceptionally long (121 pages, excluding annexures). They say they spent a
month reconsidering their position. Correspondence was exchanged between
the parties. The plaintiff’s review application in the Labour Court was dismissed
on 30 July 2025, and the defendants wished to obtain that judgment. The
Trust’s representative, Ms Kaschula, was unwell. There were also pending
interlocutory skirmishes, including an application to compel heads of argument.
[22]. Again, t he explanation is thin in places. However, the delay must be
assessed in context and t he plaintiff has not shown any material prejudice
caused by the late replying affidavit. The plaintiff has had a full opportunity to
respond to its contents in his supplementary heads of argument. In the interests
of justice and given the strength of the defendants’ case on the merits,
condonation of the late filing of the defendants’ replying affidavit is granted.
[23]. That brings me to the rescission application
[24]. The defendants seek rescission on two bases: the common law (good
cause) and Rule 42(1)(a) (erroneously sought or granted). In my view, the
application succeeds under Rule 42(1)(a), and it is therefore unnecessary to
decide the common law grounds. That said, the common law principles are not
irrelevant, and I will touch on them briefly.
[25]. Rule 42(1)(a) provides as follows:
‘The court may, in addition to any other powers it may have, mero motu or upon the
application of any party affected, rescind or vary an order or judgment erroneously
sought or erroneously granted in the absence of any party affected thereby.’
[26]. The law is clear. To succeed under Rule 42(1)(a), an applicant need not
show good cause or a bona fide defence on the merits. It is enough to show
that the order was erroneously sought or granted because of a procedural
irregularity or because there were facts which the court did not know that would
have prevented it from granting the order. See Freedom Stationery (Pty) Ltd v
Hassam and Others 3; Lodhi 2 Properties Investments CC and Another v
Bondev Developments (Pty) Ltd4.
[27]. A judgment is ‘erroneous’ when it is granted in the absence of a party
without that party having been properly notified of the proceedings, or when
there is an irregularity in the process that led to the judgment. Once the
applicant shows that the order was erroneously sought or granted, the court has
a discretion to rescind it. That discretion must be exercised judicially, having
regard to the interests of justice.
[28]. I turn to the critical question: was the default judgment of 11 March 2024
erroneously sought or granted in the absence of the defendants?
[29]. The defendants are trustees of a trust. It is trite that a trust is not a
separate legal person. Litigation by or against a trust must be conducted in the
3 Freedom Stationery (Pty) Ltd v Hassam and Others 2019 (4) SA 459 (SCA); [2018] ZASCA 173.
3 Freedom Stationery (Pty) Ltd v Hassam and Others 2019 (4) SA 459 (SCA); [2018] ZASCA 173.
4 Lodhi 2 Properties Investments CC and Another v Bondev Developments (Pty) Ltd 2007 (6) SA 87
(SCA).
names of the trustees in their representative capacities. Rule 4(1)(a)(ix)
provides that where two or more persons are sued in their joint representative
capacity as trustees, service shall be effected upon each of them. Service on
the trust itself is not sufficient.
[30]. Yet, the application to strike out and the application for default judgment
were not served on the defendants individually. They were served on Ms
Kaschula (for the striking out) and Ms Hartzenberg (for the default judgment) at
6[…] O[...] T[...] Road, East London, described as the Trust’s principal place of
business. The sheriff’s returns of service indicate that service was effected on
the Trust ‘c/o Kempston Motor Group Trust’, not on each trustee as required by
the Rules.
[31]. The plaintiff argues that this was proper service because the defendants
admitted in their plea that the Trust’s principal place of business is 6 […] O[...]
T[...] Road, and because Ms Kaschula is a responsible employee who accepted
service on behalf of the trustees. There are two problems with this submission.
[32]. First, Rule 4(1)(a)(ix) is specific. Service on a trust is not the same as
service on trustees. The rule requires service on each trustee. Service on a
receptionist or even a head of legal at the Trust’s premises does not, without
more, constitute service on the trustees personally in their representative
capacities. The authorities are consistent on this point. See Gross and Others v
Pentz5.
[33]. Second, by the time the application to strike out and the application for
default judgment were served, the defendants were unrepresented. Their
erstwhile attorney had withdrawn on 4 September 2023. In the notice of
withdrawal, the attorney provided a different address – 1[…] D[...] Street,
Nahoon – as the address for service. The defendants contend, and I accept,
that 1[…] D[...] Street is the Trust’s main office, while 6 […] O[...] T[...] Road is
5 Gross and Others v Pentz 1996 (4) SA 617 (A).
the main truck hire dealership. The plaintiff did not serve the applications at the
address stipulated in the notice of withdrawal. That was an irregularity.
[34]. It is no answer to say, as the plaintiff does, that the defendants received
the documents anyway. Rule 4 is not merely directory; it is peremptory. Proper
service is a jurisdictional prerequisite for the court to entertain an application in
the absence of a party. When service is defective, any order granted in that
party’s absence is prima facie erroneously granted.
[35]. Because the applications were not properly served on the defendants,
the court that granted the default judgment on 11 March 2024 did not have
before it the assurance that the defendants had been adequately notified of the
proceedings. Had the court been aware that service had not been effected in
accordance with Rule 4(1)(a)(ix) and that the address used was not the address
stipulated in the notice of withdrawal, it would not have granted the order. The
order was therefore erroneously granted.
[36]. The same reasoning applies, in part, to the striking out order of 30
November 2023. That order too was granted in the absence of the defendants
following defective service. However, there is a further difficulty: the defendants
were in default of the earlier order to compel (the order of 5 September 2023).
That order, I note, was obtained before the defendants’ attorney withdrew. But I
need not dwell on this because the default judgment order is the principal order
the defendants seek to set aside. The striking out order is inextricably tied to the
default judgment; it was a step on the way to default judgment. To the extent
that the striking out order stands, it falls with the default judgment.
[37]. I am fortified in my aforegoing findings and conclusions by Rossitter v
Nedbank Ltd6, in which the Supreme Court of Appeal (per Mbha JA) held that if
a default judgment was erroneously sought or granted, a court should, without
a default judgment was erroneously sought or granted, a court should, without
more, grant the order for rescission. A judgment is erroneously granted if there
6 Rossitter v Nedbank Ltd 2015 JDR 2629 (SCA).
existed at the time of its issue a fact which the court was unaware of, which
would have precluded the granting of the judgment and which would have
induced the court, if aware of it, not to grant the judgment. In casu, that may
very well be the position in that the service of impugned applications was
irregularly served. See also Sekoati v Standard Bank of South Africa Ltd and
Others7 and the authorities referred to therein, notably The Master of the High
Court (Northern Gauteng High Court, Pretoria) v Motala NO and Others 8 and
Richards v Meyers9.
[38]. I therefore find that the default judgment of 11 March 2024 was
erroneously granted within the meaning of Rule 42(1)(a).
[39]. The finding that the order was erroneously granted does not
automatically entitle the defendants to rescission. The court retains a discretion.
The question is whether, in all the circumstances, it is just and equitable to
rescind the order.
[40]. Several factors weigh in favour of rescission. First, the defendants have
a bona fide defence to the plaintiff’s claim. The plaintiff claims that he was
entitled to commission on all dealerships in Gauteng. The defendants point to
the express terms of the employment contract, the letter of 30 August 2012, the
plaintiff’s own concessions in arbitration and Labour Court proceedings, and the
commission slips the plaintiff signed without objection. Whether the defence will
succeed is a matter for trial, but it is not frivolous or unsustainable. It is a real
and substantial defence. That strongly favours rescission.
[41]. Second, the delay in launching the rescission application, while
regrettable, does not outweigh the strength of the defence. The plaintiff has not
shown any irreparable prejudice that cannot be compensated by a costs order.
7 Sekoati v Standard Bank of South Africa Ltd and Others 2025 (5) SA 581 (GP).
8 The Master of the High Court (Northern Gauteng High Court, Pretoria) v Motala NO and Others 2012 (3)
SA 325 (SCA).
9 Richards v Meyers 1909 TS 158.
The plaintiff himself allowed the matter to lie dormant for four and a half years.
He cannot now complain that the defendants took a little over a year to bring
this application, particularly when the defendants were trying to ascertain
whether the plaintiff would enforce the order.
[42]. Third, the interests of justice favour allowing the defendants their day in
court. The default judgment grants in favour of the plaintiff an order for the
statement and debatement of an account in respect of dealerships the
defendants say he was never responsible for. If the default judgment stands,
the Trust may be compelled to pay significant sums based on an interpretation
of the employment contract that the defendants vigorously dispute. That would
be a substantial injustice.
[43]. Fourth, the plaintiff’s own conduct in the litigation has not been beyond
reproach. He disappeared for years, then re -emerged with an amended claim.
He applied for default judgment at a time when the defendants were
unrepresented and after serving documents on the wrong address. Litigants
must act bona fide and with due regard for the Rules. The plaintiff has not done
so.
[44]. In the exercise of my discretion, I intend rescinding both the striking out
order of 30 November 2023 and the default judgment order of 11 March 2024.
Costs
[45]. The general rule in matters of costs is that the successful party should be
given his costs . The defendants should therefore be granted the costs of the
plaintiff’s counter-application. As indicated supra, that application was singularly
without merit and ill-advised.
[46]. The costs in relation to the rescission application, however, stands on a
different footing. The standard order granted in rescission applications is
normally one of costs in the course. I therefore intend granting an order to that
effect.
Order
[47]. In the result, I make the following order: -
(1) The defendants’ late filing of their application for a rescission of the orders
granted by this Court on 30 November 2023 (per Cajee AJ) and 11 March
2024 (per Botsi-Thulare AJ) respectively, be and is hereby condoned.
(2) The orders granted by this Court, under case number: 2016 -30980,
against the defendants on 30 November 2023 (per Cajee AJ) and 11
March 2024 (per Botsi -Thulare AJ) respectively, be and are hereby set
aside and rescinded.
(3) The defendants’ plea and their defence in the main action be and are
hereby reinstated.
(4) The costs of the above opposed application s shall be in the course of the
main action instituted by the plaintiff against the first, second and third
defendants in their official capacities as the duly appointed Trustees for
the time being of the Kempston Motor Group Trust (‘the Trust’).
(5) The plaintiff’s counter-application to have struck out certain paragraphs in
the defendants’ founding affidavit, is dismissed with costs.
________________________________
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
HEARD ON: 4 May 2026
JUDGMENT DATE: 18 May 2026
FOR THE PLAINTIFF: G Ebersohn
INSTRUCTED BY: Ebersohn Incorporated,
Randpark Ridge Randburg
FOR THE FIRST, SECOND
AND THIRD DEFENDANTS: Baheeyah Bhabha
INSTRUCTED BY: Vermaak Marshall Wellbeloved Inc,
Rosebank, Johannesburg