REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 82687/2014
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 14 May 2026
SIGNATURE:
In the application between:
THE PREMIER OF THE NORTH-WEST PROVINCE Applicant
and
SHANE NOEL ADAMS First Respondent
MADIBENG LOCAL MUNICIPALITY Second Respondent
THE SHERIFF OF THE HIGH COURT, Third Respondent
MAHIKENG NORTH-WEST PROVINCE
Delivered: This judgment was handed down electronically by circulation to the parties'
legal representatives by e-mail and/or uploading to the electronic platform. The date and
time for hand-down is deemed to be 10h00 on the date reflected hereon.
Summary: Rescission - Rule 42(1)(a) - application framed only under Rule 42 - no
pleaded explanation in the founding papers for delay, acquiescence or
absence - applicant's complaints directed to wrongfulness, negligence and
causation and amount to an impermissible rehearing of the merits -
anomalies in the default judgment application do not, on the case pleaded,
establish that the order was erroneously sought or erroneously granted -
application dismissed with costs.
JUDGMENT
INTRODUCTION
[1] This is an application to rescind the order granted on 8 December 2021 under
case number 82687/2014, in terms of which the applicant and the second respondent
were held jointly and severally liable to pay the first respondent R3 954 218.00 in
respect of loss of earnings and general damages, together with costs, while the first
respondent's future medical treatment costs and related expenditure were postponed
sine die.
[2] The underlying claim arose from an accident (involving a pothole) on 28 March
2014 on the Bokfontein Road between Hartebeespoort and Brits. The pleaded case was
that the first respondent struck a large pothole, failed in an attempt to evade it, rolled his
vehicle, and sustained serious injuries in circumstances where there were allegedly no
visible warning signs and where the road fell under the control and maintenance
responsibilities of the public defendants.
[3] The pleas of the applicant and the second respondent were struck out on 26
February 2018. Thereafter the first respondent enrolled a default judgment application
supported by affidavits, expert confirmations and reports, photographs, an accident
report, hospital records and heads of argument.
[4] In the rescission application, the applicant seeks an order rescinding and setting
aside the 8 December 2021 order, costs if opposed, and further or alternative relief. The
founding affidavit was deposed to by Mosweu Paul Mogotlhe, who describes himself as
the Director General in the Office of the Premier and says that he is authorised to
depose to the affidavit.
[5] The answering affidavit was deposed to by Shane Noel Adams. It raises two
points in limine, namely an unreasonable delay without condonation or a satisfactory
explanation, and a contention that the rescission is mala fide and an abuse of process
brought to frustrate execution. It also gives a detailed chronology of the applicant's
alleged knowledge of the judgment and its non -participation in the litigation and
execution process.
[6] The principal issue is whether the applicant has made out a case for relief under
Rule 42(1)(a). Ancillary issues are whether delay and acquiescence should bar relief
and what costs order should follow.
THE RESCISSION APPLICATION AS PLEADED
[7] In the founding affidavit the applicant expressly pleads Rule 42(1)(a) as the basis
for relief. In paragraphs 5.1 and 5.2 of the founding affidavit the applicant alleges that
the Court, in granting the order on 8 December 2021, misconceived its proper discretion
and that the order was therefore erroneously granted.
[8] The founding affidavit does not rely on Rule 31(2)(b), nor does it seek to make a
case for a common-law rescission based on good cause. The applicant also makes out
no case, factually, for relief under Rule 31(2)(b) or the common -law. The application
contains no prayer for condonation, and no explaining when the applicant learnt of the
order, why the rescission was only launched in July 2024, or why the applicant was
absent when the default judgment application was heard.
[9] The substance of the founding affidavit is directed not at a procedural
impediment to the order, but at the merits of the delictual claim. The applicant says that
the first respondent failed to establish a legal duty resting on the applicant, failed to
establish wrongfulness, failed to prove causation, and failed to prove negligence. The
affidavit then traverses road -authority delict principles, causation principles, and the
negligence test before concluding that the default court should have dismissed the
claim.
[10] In the founding affidavit the applicant makes a general allegation that relevant
facts were outside the record or were withheld or misrepresented. The founding papers,
however, does not identify with any particularity the concrete fact said to have been
withheld or the precise misrepresentation relied upon.
LATER PAPERS
[11] After the main rescission application had been launched, the first respondent
served a Rule 30 notice and then a formal Rule 30 application contending, in substance,
that the rescission was irregular because it was delivered without any condonation
application or explanation of the delay. The Rule 30 practice note records that the
rescission was served on 23 July 2024 and that the Rule 30 notice followed on 26 July
2024.
[12] The Rule 30 application came before Molopa J on 5 February 2025. The
operative order was that the Rule 30 application was postponed sine die and that the
first respondent, in that interlocutory part (the applicant in this application), was to pay
the costs occasioned by the postponement on the scale as between attorney and own
client.
[13] A separate condonation application was later brought. It seeks condonation for
the late filing of the rescission application, and states that the applicant became aware
of the default order only when served with a notice of sale in execution on 5 June 2024,
and says that the rescission application was instituted on 31 July 2024.
APPLICABLE PRINCIPLES
[14] Rule 42 is a narrow procedural mechanism. In Colyn v Tiger Food Industries Ltd
t/a Meadow Feed Mills 2003 (6) SA 1 (SCA) the Supreme Court of Appeal emphasised
that the rule must be understood against the common -law principle of finality of
judgments and that rescission does not follow automatically: the court retains a
discretion that must be exercised judicially. The same approach is reflected in Zuma v
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture,
Corruption and Fraud in the Public Sector Including Organs of State 2021 (11) BCLR
1263 (CC).
[15] To succeed under Rule 42(1)(a), an applicant must show that the order was
granted in its absence and that it was erroneously sought or erroneously granted. Zuma
makes it plain that the notion of "absence" protects a litigant whose presence was
precluded, not one whose absence was elected. Where a litigant, given notice of the
case and sufficient opportunities to participate, elects not to do so, the jurisdictional
requirement of absence is not satisfied.
[16] In Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6)
SA 87 (SCA) the Supreme Court of Appeal held that a judgment validly obtained in
accordance with the rules cannot later be transformed into an erroneous judgment by
the subsequent disclosure of a defence. The existence, or non -existence, of a defence
on the merits is ordinarily irrelevant to whether a default judgment was erroneously
granted.
[17] In Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 (E) the court explained
that the inquiry into whether a judgment was erroneously granted is confined to the
record. In Naidoo v Matlala NO 2012 (1) SA 143 (GNP) this court formulated the
position in general terms, being a judgment is erroneously granted if, at the time it was
made, there existed a fact of which the judge was unaware and which would have
precluded the granting of the judgment.
[18] Schmidlin v Multisound (Pty) Ltd 1991 (2) SA 151 (C) treats acquiescence in the
execution of a judgment as a powerful indication against rescission. In First National
Bank of SA Ltd v Van Rensburg NO 1994 (1) SA 677 (T) the full court held that even
where error may arguably be shown, an application can be dismissed by reason of long
delay.
[19] A litigant who knows a case is coming on and deliberately refrains from
appearing is in wilful default, whatever the motive.
EVALUATION
[20] The rescission application must stand or fall on the case made out in the
founding papers. On its face that case is a Rule 42 case only. It is not a Rule 31 case. It
is not a common-law “good cause” case.
[21] On the issue of absence, the papers do not assist the applicant. Adams says that
notice of the default judgment application for 8 December 2021 was given on 4
November 2021, but that the applicant neither opposed nor appeared. He further says
that the signed default order was served on the State Attorney on 18 January 2022, that
payment was pursued on 20 January 2023 and again on 3 March 2023, that a writ of
execution followed, that eight vehicles were, in fact, attached on 9 October 2023, and
that the rescission was only launched once renewed execution loomed in mid-2024.
[22] The applicant's later condonation affidavit advances a different chronology,
namely that the order came to its attention only on 5 June 2024 when a notice of sale in
execution was served and that operational disruption during the Covid period
contributed to the lateness. Even taking that later version at face value, the founding
papers still do not explain the applicant's absence when the default judgment
application was heard, and it still does not transform elected non -participation into
absence within the meaning of Rule 42(1)(a).
[23] In my view, the applicant has not shown absence in the Rule 42 sense. On the
respondent's version the applicant knowingly elected not to participate. On the
applicant's own version in the later condonation affidavit, the focus is on when it says it
learnt of the order, not on any circumstance that precluded it from participating when the
order was originally sought. Zuma therefore applies against the applicant. The absence
requirement is not met.
[24] That conclusion is, on its own, fatal to the application. But even if I am wrong on
absence, the applicant encounters a second and independent difficulty on the
requirement of error.
[25] The founding affidavit does not identify a procedural fact on the face of the record
that would have precluded the granting of the order. Instead, it says that Adams did not
prove wrongfulness, legal duty, negligence and causation and that the court ought
therefore to have dismissed the claim. That is the language of merits review, not the
language of a Rule 42 rescission application.
[26] The default court had before it a substantial body of material. That material
included Swan's affidavit in support of default judgment, Adams's supporting affidavit,
Adams's short affidavit in the merits bundle, Stander's corroborating witness affidavit,
the accident report, hospital records, monochrome and colour photographs of the road
scene and roadway defects, expert confirmatory affidavits and reports; and heads of
argument dated 7 December 2021 (03 -1 to 03-179; 04-1 to 04-6; 10-1 to 10-86; 12-1 to
12-11; 13-1 to 13-26).
[27] On the merits, the material before the default court alleged a large or
exceptionally large pothole, an attempted but failed evasive manoeuvre, a rollover, no
visible warning signs, and control and maintenance responsibility on the part of the
defendants. Adams stated that he believed the collision and injuries would have been
avoided had warning signs been erected, and Stander corroborated that the vehicle hit
a pothole, left the road and overturned. Relevant photographs were also before the
court.
[28] On the issue of the quantum of the claim, the default court had confirmatory
affidavits and reports from an industrial psychologist, neurosurgeon, actuary,
orthopaedic surgeon, neuropsychologist and occupational therapist, together with heads
quantifying the claims for loss of earnings, general damages and future medical
expenses (03-1 to 03-32; 03-56 to 03-57; 03-64 to 03-179; 13-12 to 13-26).
[29] The existence of that body of material does not mean that every criticism of the
default case is unfounded. It does, however, demonstrate that the applicant is not
confronting a situation in which judgment was granted on no evidence or in disregard of
the procedural requirements for default judgment. What the applicant seeks to do is to
revisit whether that material was enough to prove delictual liability. Lodhi 2 makes clear
that such a merits complaint does not turn a default judgment into an erroneously
granted judgment.
[30] The present question is not whether the default judgement application and record
were immaculate. The question is whether, on the case the applicant has pleaded, the
anomalies establish that the order was erroneously sought or erroneously granted
within Rule 42(1)(a). In my view they do not.
[31] First, the founding papers did not found the Rule 42 case squarely on those
default judgement record anomalies. The founding affidavit did not contend that the
application was inconsistent with the relief granted, the quantum arithmetic did not add
up, and the jurat anomaly precluded reliance on the affidavit. Instead, it said that Adams
had failed to prove wrongfulness, negligence and causation. The application was thus
framed as a merits attack from the start.
[32] Second, the applicant did not show that any of the anomalies identified a fact of
which the default court was unaware and which would have precluded the order. The
affidavit date anomaly, although troubling, was not shown to have been decisive in
circumstances where other liability evidence and expert material were before the court.
[33] Third, the founding affidavit's general allegation of withheld or misrepresented
facts is not particularised. No material withheld fact or misrepresentation is identified in
the founding papers with the required specificity. That makes it impossible to conclude,
on the founding papers, that the order was procured through a particular non -disclosure
or procedural misstatement that brings the matter within Rule 42.
[34] The upshot is that the applicant has not shown that the 8 December 2021 order
was erroneously sought or erroneously granted. The application seeks, in substance, a
second opportunity to argue wrongfulness, negligence, legal duty and causation after
the default order has already been granted. Zuma describes that course as misdirected,
and Lodhi 2 makes plain that a subsequently articulated defence does not convert a
judgment regularly granted into an erroneous one.
[35] Even if I were to assume in the applicant's favour that one or more of the record
anomalies created some arguable basis for concern, I would still decline rescission in
the exercise of the discretion relevant to the current. The founding papers contain no
explanation for the delay and no engagement with acquiescence. The answering papers
set out a detailed chronology of knowledge, non -payment, execution and non -action.
Schmidlin and First National Bank v Van Rensburg recognise that delay and
acquiescence are highly material. In this application they operate strongly against the
applicant.
[36] The Rule 30 and condonation detour does not alter that conclusion. The Rule 30
application was never decided on the merits and was merely postponed sine die with a
punitive postponement -costs order already made by Molopa J. The later condonation
application, even if entertained, does not cure the absence and error defects in the main
application, even if entertained, does not cure the absence and error defects in the main
rescission application.
COSTS
[37] The first respondent sought punitive costs and also sought to fold the costs of the
interlocutory Rule 30 application into the costs of the main rescission application. The
first respondent invoked, inter alia, De Klerk v Scheepers 2005 (5) SA 244 (T) and
Standard Credit Corporation v Bester 1987 (1) SA 812 (W) in support of an abuse -of-
process argument.
[38] I do not consider it necessary to make a further punitive costs order in the
present judgment. The history of the matter undoubtedly reveals delay and procedural
untidiness on the part of the applicant, but Molopa J has already made a punitive order
in relation to the postponement of the Rule 30 application. In my view the proper order
in respect of the rescission application itself is that it be dismissed with costs. The
earlier costs orders already made in the matter remain undisturbed.
ORDER
[1] The application for rescission is dismissed.
[2] The applicant shall pay the first respondent's costs of the rescission application
including the costs on Scale C.
R RAUBENHEIMER
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
14 May 2026
APPEARANCES:
APPLICANT’S COUNSEL: Adv M Boko
APPLICANT’S ATTORNEYS: The State Attorney
FIRST RESPONDENT’S COUNSEL : Adv A Lubbe
FIRST RESPONDENT’S ATTORNEYS : N S Swan Attorneys