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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 002384-2025
In the matter between:
In the matter between:
REFILWE PAUL MOKHWESANA Applicant
And
NEDBANK LIMITED First Respondent
THE SHERIFF OF THE HIGH COURT Second Respondent
JUDGMENT
MVUBU, AJ
Introduction
[1] This is an application for the rescission of an Order granted by this Court on
25 March 2025 per the Honourable Justice Makofane ( Court Order). In terms
of the said Court Order, the following Order was granted:
“1. Confirmation of Cancellation of the agreement.
2. Return of the goods
2021 NISSAN NAVARA 2.5 DDTi SE A/T D/C P/U
ENGINE NUMBER : Y[…]
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
28 MAY 2026 _________________________
DATE SIGNATURE
2
CHASSIS NUMBER : A[…]
3. Retention of all monies paid to the Plaintiff by the Defendant.
4. Costs of suit”
[2] As apparent from the Court Order, the Plaintiff ( Nedbank) and the Defendant
(Mokhwesana) had concluded an instalment sale agreement for the purchase
of a 2021 Nissan Navara (as described in the Court Order). Mokhwesana was
required to make monthly instalment payments into the account of Nedbank
and which payments would be debited by Nedbank from Mokhwesana’s
nominated bank account.
[3] It is common cause that the debited order mandate authorising Nedbank to
access Mokhwesana’s account was not and has not been cancelled. Indeed,
Nedbank continued to debit Mokhwesana’s account, specifically in the last 4
(four) months leading to the date of the Court Order. That is, at the time and
date when the Court Order was obtained, Nedbank was receiving continuous
payments from Mokhwesana. Nedbank, however, contends that payments
notwithstanding, Mokhwesana was in arrears and therefore entitling Nedbank to
the Court Order.
[4] Now, then, if Nedbank was debiting Mokhwesana’s account and was doing so
successfully, how then was the account in arrears. Well, it is stated in the
papers filed of record that Mokhwesana became a victim of fraud and this fraud
resulted in a fraudulent reporting to Nedbank that Mokhwesana was in debt
review. The debit order mandate was thus halted as a result of this alleged
debt review process and there accumulated the arrears.
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[5] Following investigations, it was unearthed that no lawful debt review process
was in place and Nedbank re -submitted debit orders to Mokhwesana’s bank.
Those debit orders were successful.
Case for rescission
[6] Mokhwesana advances his case for rescission on Rule 42(1)(a) on the ground
that the order was erroneously sought and/or erroneously granted in his
absence. He invites this Court to set aside the said Court Order.
[7] Further and as evidenced by paragraphs 57 and 58 of the Founding Affidavit,
Mokhwesana seeks rescission on the basis of Rule 31(2)(b). The two
paragraphs read as follows:
“57. I am aware that for rescission of judgment to be granted the
Applicant needs to prove the following:
57.1. showing good cause;
57.2. application for rescission of judgment must be made within
a reasonable time;
57.3. a bona fide defence; and
57.4. unreasonable delay.
58. I respectfully submit that I meet all the of the above -
mentioned requirements as will be shown below.”
[8] The rest of the Founding Affidavit proceeds to demonstrate facts in support of
the grounds set out in paragraph 57 (including subparagraphs). It is to this case
that Nedbank answered and filed an Answering Affidavit in opposition.
[9] Cut to its bare, the thrust of the application is two fold:
9.1. Mokhwesana did not receive service of the process leading to Nedbank
obtaining judgment against him.
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9.2. He was paying on the account and ergo, there was no basis for Nedbank
to obtain judgment.
[10] Nedbank contends:
10.1. Mokhwesana was personally served and having failed to demonstrate
facts fully disputing the returns of service in his Founding Affidavit, no case
has been made by Mokhwesana warranting vitiation of the Court Order.
10.2. In any event, Mokhwesana was in arrears and Nedbank was entitled to the
Court Order.
[11] I shall consider the first issue – that of service. Where I reach the conclusion
that there was no service, that would be the end of the matter and rescission
would stand to be granted. On the contrary, I would be required to determine
whether Nedbank was entitled to the Order on the merits.
[12] I shall call the issue relating to service as the “procedural ground for rescission”
and the question whether Mokhweasana was in arrears and thereby entitling
Nedbank to an Order as the “substantive ground for rescission”.
Procedural ground for rescission
[13] The contention relates to annexure N5 and N6, being the Sheriff’s returns of
service. N5 and N6 read, in turn, as follows:
“On this 24 th day of February 2025 at 11:50 I served the
Combined Summons in this matter upon REFILWE PAUL
MOKHWESANA personally at 1 […] T[…] STREET THE O […]
B[…] PRETORIA 0182 by handing to the abovementioned a
copy thereof after explaining the nature and exigency of the said
process. (Rule 4(1)(a)(i))”
And
5
“On this 24th day of February 2025 at 11:50 I served the NOTICE
OF AGREEMENT TO MEDIATION in this matter upon REFILWE
PAUL MOKHWESANA personally at 1 […] T[…] STREET THE
O[…] B[…] PRETORIA 0182 by handing to the abovementioned
a copy thereof after explaining the nature and exigency of the
said process. (Rule 4(1)(a)(i))”
[14] When one has regard to the Sheriff’s returns of service and when considered
with section 43(2) of the Superior Courts Act, 2013 as amended, one would be
within legal whims in accepting that Mokhwesana received the process
mentioned by Sheriff. Section 43(2) of the Superior Courts Act, 2013 provides
that:
“The return of the sheriff or a deputy sheriff of what has
been done upon any process of a court, shall be prima
facie evidence of the matters therein stated.”
[15] The stated provision creates an evidentiary burden upon a party alleging that
they did not receive process, to set out facts demonstrating that despite what
the returns say, they in fact did not receive process. In Manqele and Another v
SB Guarantee Company (RF) (Pty) Ltd , it is said (albeit in regard to a return
of service in a rule 46A application) that if a party wishes to impeach such
evidence, the onus is discharged on an ordinary balance of probabilities.1
[16] In this regard, the Applicant (Mokhwesana) stated in his Founding Affidavit:
“[35] I submit that I only became aware that default judgment
had been granted against me on or about the 4 th of April 2025
when the Second Respondent attached the said vehicle.
…
[38] I submit that I was not aware of the default judgment
application granted against me on the 25 th of March 2025, as I
1 [2025] ZAGPJHC 381 paras 24-25.
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was neither served the default judgment application nor the
combined summons at my chosen domicilium executandi as
purported by the Second Respondent on the return of service.
…
[62] It is not possible that the Return of Service was served on
me as I never received the combined summons nor signed any
receipts or documents to indicate that I was properly served.
…
[66] The Second Respondent mischievously made phantom
service of the summons.”
[17] A wholistic reading makes it plain that Mokhwesana refuted ever receiving the
combined summons and went as far as calling the service “phantom service”.
[18] To that Nedbank responded and included an explanation from the Sheriff . The
Sheriff confirms (as supported by Nedbank) that the Sheriff served the
combined summons personally upon Mokhwesana.
[19] To buttress this point, the Sheriff said, in his Confirmatory Affidavit as read with
paragraph 4.17 of Nedbank’s Answering Affidavit:
“I therefore confirm that personal service was effected in this
matter. I therefore deny that personal service was not effected as
the Applicant now attempts to convey in the Founding Affidavit. I
say that the case by Applicant on that score that personal
service was not effected and that he never became aware of the
instituted action is simply misplaced and false. I annex hereto as
ANNEXURE “N7” a Confirmatory Affidavit by the Second
Respondent, the sheriff, being Nakide Rauwane, the sheriff who
effected the personal service in this matter and he confirms that
in fact the Combined Summons and the notice of mediation was
properly and personally served upon the Applicant in this matter
as proved with the returns of service, as the Applicant, together
with his wife took receipt of the Combined Summons and the
notice of mediation . Both the Applicant and the Applicant’s wife
verbally confirmed to the sheriff that the Applicant is indeed Mr.
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Mokhwesana and as such he accepted personal service of the
Combined and the notice of mediation.”
(my underlining. Bold in the original text)
[20] The underlined parts form the antithesis of the factual dispute and resultant
challenge to the Sheriff’s returns of service has was then elaborated by the
Applicant in his Replying Affidavit.
[21] In that regard, the Applicant in his Replying Affidavit stated as follows, in retort:
“[8] I deny that I was personally served with the combined
summons or the notice of mediation on 24 February 2025, as
alleged by the First Respondent.
[9] The Sheriff’s return of service and confirmatory affidavit are
incorrect. At no time did I receive such document, nor did I
verbally confirm my identity to the Sheriff.
[10] The First Respondent alleges that I was with my wife when I
received personal service of the summons which averment
cannot be truthful because my wife died in 2014.”
(my underlining)
[22] A death certificate was attached. Further, in the Instalment Sale Agreement
concluded between Mokhwesana and Nedbank, Mokhwesana is recorded as a
widow. I must thus resolve this apparent dispute and I do so.
[23] In Absa Bank Limited v Collier the Court held as follows:
[37] Prima facie evidence calls for an answer and places an
evidential burden on the respondent. It follows that where a
respondent seeks to impeach a return of the sheriff this must be
done on ‘ the clearest and most satisfactory evidence’ . It is not
open to a respondent to impeach a return on flimsy grounds or
when there exists no reasonable basis on which to do so. In
Sussman & Co (Pty) Ltd v Schwarzer it was stated that:
‘…If the respondent then wishes to impeach those facts then the
onus shifts to him to show by clear evidence that although the
return shows that the requirements of sec. 8(b) have been
8
complied with they were in fact not complied with and that the
return is not a proper return. Where, however, the return itself
does not show that the requirements of the sub -section have
been complied with, then the onus is not shifted and it rests on
applicant to show that in fact the requirements have been
complied with and that the return is in fact a nulla bona return.’2
[24] These being motion proceedings, it is trite law that motion proceedings are
decided on the papers filed by the parties and in case where there is a dispute
of fact which can only be resolved through oral evidence, it is appropriate that
action proceedings should be used unless the factual dispute is not real and
genuine. In our case, Nedbank says that there was personal service and
Mokhwesana says he did not receive service.
[25] The 'principal ways' in which a dispute of fact may arise are set out as follows in
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd:
25.1. When the respondent denies all the material allegations made by the
various deponents on the applicant's behalf, and produces or will produce,
positive evidence by deponents or witnesses to the contrary . It must
be emphasised that the Third Respondent has not done this in its
answering affidavit.
25.2. When the respondent admits the applicant's affidavit evidence but
alleges other facts which the applicant disputes . This aspect, also,
does not arise. ABSA has not admitted a single paragraph in its 27 -page
Answering Affidavit.
2 (A 314/2014) [2015] ZAWCHC 26; 2015 (4) SA 364 (WCC) (12 March 2015) at para 37.
9
25.3. When the respondent concedes that she has no knowledge of the main
facts stated by the Applicant, but denies them, putting the Applicant to the
proof and herself gives or proposes to give evidence to show that the
Applicant and his or her deponents are biased and untruthful or
otherwise unreliable , and that certain facts upon which the applicant
relies to prove the main facts are untrue. This, too, does not arise.
[26] In Plascon-Evans Paints Ltd v Van Riebeeck Pants (Pty) Ltd the Appellate
Division concluded:
“It is correct that, where in proceedings on notice of motion
disputes of fact have arisen on the affidavits, a final order,
whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant’s affidavit which
have been admitted by the respondent, together with the facts
alleged by the respondent, justify such an order. The power of
the Court to give such final relief on the papers before it is,
however, not confined to such a situation. In certain instances
the denial by the respondent of a fact alleged by the applicant
may not be such as to raise a real, genuine or bona fide dispute
of fact… if in such a case the respondent has not availed himself
of his right to apply for the deponents concerned to be called for
cross-examination under Rule 6(5)(g) of the Uniform Rules of
Court … and the Court is satisfied as to the inherent credibility of
the applicant’s factual averment, it may proceed on the basis of
the correctness thereof and include this fact among those upon
which it determines whether the applicant is entitled to the final
relied which he seeks… Moreover, there may be exceptions to
this general rule, as, for example, where the allegations or
denials of the respondent are so farfetched or clearly untenable
that the Court is justified in rejecting them merely on the
papers.”3
3 1984 (3) SA 623 (A) at 634H – 635C
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[27] Further, the Supreme Court of Appeal in National Director of Public
Prosecutions v Zuma added the following:
“if the respondent’s version consists of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible,
farfetched or so clearly untenable that the court is justified in
rejecting them merely on the papers.”4
[28] In the circumstances, this matter stands to be resolved on Mokhwesana’s
version and this ineluctably means that this Court finds there is clear and
satisfactory evidence that Mokhwesana was not personally served. This
conclusion is reached on the following grounds:
28.1. The Instalment Sale Agreement concluded between Nedbank and
Mokhwesana records him as a widower.
28.2. The death certificate he enclosed to his Replying Affidavit evidencing the
fact that Mokhwesana’s wife is deceased.
[29] It is not plausible that Sheriff could have served the process personally upon
Mokhwesana in the presence of his wife (who died in 2014).
[30] In light of these facts Nedbank could not genuinely and seriously have believed
that Mokhwesana was personall y served. To harbour such belief, Nedbank
would have to accept that it failed in its FICA verification and that the
information they had regarding Mokhwesana was statutorily compliant. No
such allegations have been made.
[31] What is more, a death certificate was provided to prove the fact of Mokhwesana
being a widower. Still Nedbank persists with opposition.
4 2009 (2) SA 277 (SCA) para 26
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[32] To justify their opposition, Nedbank submitted that Mokhwesana failed to
disclose the full basis of disputing personal service. The argument seems to
suggest that Mokhwesana was aware of the contention that he was served in
the presence of his late wife. That understanding only arose when Mokhwesana
received the Answering Affidavit and when confronted with paragraph 4.17
thereof and the Second Respondent’s Confirmatory Affidavit.
[33] The steps taken by Sheriff to effect service only came to light in the Answering
Affidavit as accompanied by the Confirmatory Affidavit.
[34] I accordingly find that Mokhwesana was not served. The Court Order stands to
be set aside on this ground alone. It is not necessary to deal with the
substantive ground for rescission.
Costs
[35] Nedbank’s agreement with Mokhwesana records Mokhwesana’s marital status
as a “widow”. The deponent to the Answering Affidavit, one Christel Toweel is
an employee of Nedbank and described as follows:
“[1.1] I am an adult female employed by the Respondent in the
capacity as a Team Leader in the Respondent’s Litigation and
Defended/RBB Secured and Relationship Recoveries
Department..”
[36] Significantly, at paragraphs 1.3 and 1.4 she goes on to state:
“[1.3] The files in this matter are under my direct supervision and
control and I deal with this account on a day-to-day basis. I have
once again read all the documentation in the file that is in my
possession and I am fully conversant with the contents thereof
and with the history of the matter, including the Applicant's non -
payment to the First Respondent. I have personal insight into
the history of the account which forms the subject matter of the
action and of this application.
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[1.4] I further perused all relevant documentation relating to the
First Respondent’s internal systems, as well as documentation in
my possession and the hard copies of files in my possession,
which documentation I annex to this affidavit and which
documentation already served before the court as part and
parcel of the court record in the court file.”
[37] The above paragraphs are clearly not correct and amount misrepresentations,
at best. She could not have read the papers or if she did read, then she
deliberately sought to misrepresent to this Court in her paragraph 4.17 when
she stated that the proceedings were served upon Mokhwesana in the
presence of his wife . It is not possible to reconcile her paragraph 4.17 of the
Answering Affidavit and the “documentation” she alleges to have read
especially where Mokhwesana’s marital status is recorded as “widow”.
[38] In the result, when Nedbank obtained the explanation from Sheriff in the
manner recorded in paragraph 4.17, it ought to have not opposed this
application. This calls for a punitive cost order. I am inclined to granting costs
on attorney and client scale.
Order
[39] In the premises, I make the following order:
1. The default judgment granted against Mokhwesana on 25 March 2025 is
rescinded and set aside.
2. The Nedbank and the Second Respondent are ordered to restore to
Mokhwesana possession of the goods being the 2021 NISSAN NAVARA 2.5
DDTi SE A/T D/C P/U motor vehicle with engine number Y[…] and Chassis
Number A[..]
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3. Nedbank is ordered to serve the Combined Summons upon Mokhwesana in
terms of Rule 4 of the Uniform Rules of the High Court.
4. Nedbank is ordered to pay the costs of this application on attorney and client
scale.
________________________
K. MVUBU
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISON, JOHANNESBURG
This Judgm ent was handed down electronically by circulation to the parties/their
legal representatives by email and by uploading to the electronic file on
CourtOnline/CaseLines. The date for hand-down is deemed to be 28 May 2026.
Date of Hearing: 25 May 2026
Date of Judgement: 28 May 2026
For the Plaintiff: Adv. J. Eastes
Instructed by: Delberg Attorneys Inc.
For the Defendant: Adv. T. Ndaba
Instructed by: Nyapotse Inc.