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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 01155/2024
In the matter between:
TANDEKA ZUKA APPLICANT
And
LEOPARDS REST HOMEOWNERS ASSOCIATION RESPONDENT
JUDGEMENT
HINRICHSEN AJ
Introduction
[1] The applicant, Miss Tandeka Zuka (“ the applicant”), seeks rescission of an
order granted by this Court on 29 July 2024 (“ the July order ”), together with
condonation for the late bringing of the rescission application. The July order
declared the applicant's immovable property, which constitutes her primary
place of residence, specially executable in favour of the respondent, Leopards
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
11 May 2026 _______
DATE SIGNATURE
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Rest Homeowners Association NPC (“ the respondent ”), in respect of
outstanding levy arrears.
[2] The applicant brings the application for rescission on two alternative bases:
first, under Rule 42(1)(a) of the Uniform Rules of Court (“ the Rules”); and
alternatively, under the common law. The respondent opposes the application
in its entirety and seeks a cost order on an attorney and client scale.
Procedural History
[3] The main application was launched by the respondent against the applicant in
early 2024. The applicant was served with the application papers on 4 March
2024. On 18 March 2024, the applicant, represented by her attorney of record,
filed a notice of intention to oppose the application.
[4] Notwithstanding the filing of the notice of intention to oppose, no answering
affidavit was delivered within the prescribed period. The respondent caused
the matter to be enrolled on the unopposed roll for hearing on 29 July 2024.
On the date of the hearin g, the applicant's attorneys addressed written
correspondence to the respondent’s attorneys requesting that the matter be
removed from the roll. Despite that communication, no Counsel appeared on
behalf of the applicant. The July order was accordingly granted.
[5] The applicant avers that she became aware of the July order on approximately
12 August 2024. The present application was filed on 1 November 2024,
approximately 11 weeks after the applicant became aware of the order and
approximately 3 months after the ord er was granted. The respondent's
answering affidavit was filed out of time, prompting a condonation application
by the respondent in respect of the late filing. The answering affidavit was
deposed to by Miss Lizelle Monica Brits (“Miss Brits”), the collection manager
at CSI Property Management, following the departure from CSI’s employ of
the previous deponent, Mr. Llewellyn Van Niekerk (“Mr. Van Niekerk”).
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[6] The applicant's replying affidavit , signed on 6 November 2025 and filed on 7
November 2025, raises a point in limine directed at the competency of the
respondent’s answering affidavit.
Issues to be determined
[7] The following issues arise for determination:
a. Whether the respondent's application for condonation for the late filing
of its answering affidavit should be granted.
b. Whether the point in limine raised in the applicant's replying affidavit -
to the effect that the respondent's answering affidavit constitutes
inadmissible hearsay - should be upheld.
c. Whether the applicant has established entitlement to rescission of the
July order under Rule 42(1)(a) of the Rules.
d. Whether the applicant has established entitlement to rescission under
the common law.
e. Whether the applicant's application for condonation for the late bringing
of the rescission application should be granted.
f. The costs of the application.
Respondent’s condonation
[8] The respondent's answering affidavit was filed approximately 2 weeks late. The
explanation tendered for the delay is as follows:
a. The previous deponent, Mr. Van Niekerk, departed from CSI’s
employment after the service of the application.
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b. A new resolution of the respondent's board authorising Brits to depose
to the answering affidavit on the respondent’s behalf had to be
obtained.
c. The period in which the delay occurred coincided in part with dies non
during the festive season.
[9] The approach to condonation is trite. In Uitenhage Transitional Local Council v
South African Revenue Services 1, the Supreme Court of Appeal emphasised
that an applicant for condonation must furnish a full, detailed and accurate
account of the causes of the delay and their effects, so that the Court is placed
in a position to assess his or her conduct and motives.
[10] The Constitutional Court in Baron v Claytile (Pty) Ltd 2 confirmed it may be in
the interest of justice to condone the late filing of an answering affidavit, having
regard to factors such as the extent of the delay, the explanation and effect of
the delay, as well as the importance of the issues to be raised in the matter.
[11] In Melane v Sanlam lnsurace Co Ltd 3, Holmes JA stated that among the facts
usually relevant are the degree of lateness, the explanation thereof, the
prospect of success, and the importance of the case. Ordinarily these facts are
interrelated, they are not individually decisive, because such an approach
incompatible with a true discretion.
[12] The delay of approximately two (2) weeks is modest. The explanation is cogent:
the departure of the deponent responsible for the matter necessitated the
procurement of a fresh authorisation before a competent replacement could
swear to an affidavit binding upon the respondent. The festive period accounts
for a portion of the elapsed time. The respondent's prospects of success on the
merits are, for the reasons that follow, strong. The applicant has not
1 2004 (1) SA 292 (SCA)
2 2017 (5) SA 329 (CC)
3 1962 (4) SA 531 (A) at C-F
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demonstrated any prejudice flowing from the short delay and did not oppose
the condonation.
[13] Condonation for the late filing of the respondent's answering affidavit is granted.
Point in Limine: Hearsay
[14] In her replying affidavit, the applicant raises a point in limine to the effect that
the respondent’s answering affidavit constitutes inadmissible hearsay. The
point is advanced on the basis that Miss Brits deposes to facts that were within
the personal knowledge of her predecessor, Mr. Van Niekerk, without annexing
a supporting or confirmatory affidavit from Mr. Van Niekerk.
[15] Miss Brits deposes that she has in her possession and under her control the
files and electronic records relevant to this matter and that she has familiarised
herself with the content thereof. She also says that she has access to and
control over all the accounts and documents relating to the applicants arrear
levies and the respondent’s arrear levies. She has too perused these accounts
and documents.
[16] The respondent’s substantive case is borne primarily by a series of
documentary annexures that stand independently of any hearsay content. Miss
Brits, in her capacity as collection manager of CSI Property Management, is
competent to produce and speak to those documents in her official capacity.
The relevant annexures are:
a. Annexure LRA1: the resolution of the respondent’s board authorising
Brits to depose to the answering affidavit.
b. Annexure LRA2: the sheriff's return of service confirming service of the
main application on Nedbank Limited on 20 June 2024.
c. Annexure LRA3: the applicant’s most recent levy statement, reflecting
an outstanding balance of R99,902.79.
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d. Annexure LRA4: the respondent's payment allocation resolution.
[17] These documents speak for themselves. Further, a deponent to its affidavit
does not need first-hand knowledge of every fact comprising its cause of action:
the deponent could rely for its knowledge on documents in the entities
possession4.
[18] The point in limine is therefore dismissed.
Applicable Legal Framework
Rule 42(1)(a)
[19] Rule 42(1)(a) of the Rules empowers a Court, in addition to any other power it
may have, to rescind or vary any order or judgment that was erroneously
sought or erroneously granted in the absence of any party affected thereby.
[20] The Constitutional Court examined the requirements of Rule 42(1)(a) 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
and Others (Council for the Advancement of the South African Constitution and
Other as Amicus Curiae)5 ("Zuma"). The Court confirmed that the Rule contains
two cumulative requirements:
a. The order must have been granted in the absence of the affected party;
and
b. The order must have been erroneously sought or erroneously granted.
[21] Both these requirements must be satisfied before rescission under the Rule is
competent.
4 Rees and Another v Investec Bank Ltd 2014 (4) SA 220 (SCA)
5 2021 JDR 2069 (CC)
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[22] In relation to the “absence” requirement, the Court drew a critical distinction
between genuine absence - that is, ignorance of the proceedings - and elected
non-participation, where a party who is aware of the proceedings elects not to
participate.
[23] Elected non-participation does not constitute " absence" within the meaning of
the Rule.
[24] In relation to the " erroneously granted " requirement, the Court in Zuma held
that the inquiry is to be assessed by reference to the information that was before
the Court at the time the order was made, not by reference to subsequent facts
or developments. Post-hearing events cannot retroactively render an otherwise
correct order erroneous.
Common law rescission
[25] Where Rule 42(1)(a) is unavailable, a party may seek rescission under the
common law upon proof of " sufficient cause". The requirements for sufficient
cause were authoritatively stated in Chetty v Law Society, Transvaal6("Chetty").
Two essential components must be established:
a. A reasonable and acceptable explanation for the default; and
b. A bona fide defence to the action with prima facie prospects of success
on the merits.
[26] Both components are indispensable. The absence of either is fatal to the
application: a meritorious defence cannot compensate for an inadequate
explanation for the default, and vice versa.
6 1985 (2) SA 756 (A)
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[27] In Phetlu v Nthutang 7 (leave to appeal) (“Phetlu”), this Court held that bare,
unsubstantiated assertions of financial difficulty do not constitute an adequate
explanation for a default. A sufficient degree of corroboration of the asserted
financial position is required before the Court may be satisfied t hat the
explanation is reasonable and acceptable.
Analysis
Rule 42(1)(a)
[28] The threshold question under Rule 42(1)(a) is whether the July order was
granted in the applicant's "absence" in the sense contemplated by the Rule. On
the facts before me:
a. The applicant was served with the main application on 4 March 2024.
b. Her attorneys filed a notice of intention to oppose on 18 March 2024,
formally placing the applicant’s opposition on record.
c. On 2 May 2024, one month after the applicant was required to file her
answering affidavit to the main application, a notice of set down was
served upon the applicant informing her that the main application had
been set down for hearing on the unopposed motion court roll for 29 July
2024.
d. On the morning of 29 July 2024 - the date on which the matter was set
down on the unopposed roll - the applicant’s attorneys addressed written
correspondence to the respondent’s attorneys requesting removal of the
matter from the roll. This letter also appeared on CaseLines.
e. Notwithstanding that correspondence, there was no appearance on
behalf of the applicant at the hearing.
7 2023 JDR 3921 (GP) at para 8 and 9
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[29] The applicant, through her attorney of record, was fully aware of the
proceedings and of the set down date of 29 July 2024. The correspondence on
that date - authored by the attorneys and expressly referencing the roll -
confirms active awareness. The election not to ensure an appearance was a
deliberate decision, not a consequence of ignorance. This is precisely the
scenario of elected non -participation identified in Zuma as falling outside the
ambit of " absence" for purposes of Rule 42(1)(a). The first cu mulative
requirement is not satisfied.
[30] Even if the applicant could establish "absence" in the required sense, she would
still fail at the second cumulative requirement: that the order was erroneously
sought or erroneously granted.
[31] The applicant contends that the enrolment on the unopposed roll was irregular,
notwithstanding the existence of a notice of intention to oppose.
[32] Chapter 13(10) of the Practice Directive of this Division provides as follows:
“1. Where the respondent has failed to deliver an answering affidavit and has not
given notice of an intention only to raise a question of law (rule 6(5)(d)(iii)) or a
point in limine, the application must not be enrolled for hearing on the opposed
roll.
2. Such an application must be enrolled on the unopposed roll. In the event of
such an application thereafter becoming opposed (for whatever reason), the
application will not be postponed as a matter of course. The judge hearing the
matter will give the necessary directions for the future conduct of the matter.
3. The notice of set down of such an application must be served on the
respondent’s attorney of record.”
[33] The respondent, correctly in my view, submits that Chapter 13 (10) permits the
enrolment of a matter on the unopposed roll where, despite a notice of intention
to oppose, no answering affidavit has been delivered within the prescribed
period. That was the position on 29 July 2024.
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[34] The decisive consideration, however, is that drawn from Zuma: the inquiry into
whether an order was erroneously granted is confined to the information before
the Court at the time that the order was made. On 29 July 2024, the Court had
before it a matter enrolled on the unopposed roll, with no opposing papers filed
and no appearance by the applicant.
[35] On the information then before the Court, the order cannot be characterised as
erroneously granted. Arguments as to the propriety of the enrolment, or as the
alleged non -compliance with Rule 46(1)(a)(i) or Rule 46A, raised only in the
subsequent proceedings, cannot retroactively impugn the order under Rule
42(1)(a).
[36] The application for rescission under Rule 42(1)(a) accordingly fails.
Common Law Rescission – Explanation for Default
[37] I turn to consider whether the applicant has established "sufficient cause" for rescission
under the common law. The first inquiry is whether the explanation for the default is
reasonable and acceptable. Applying Chetty, the explanation must cover the entire
period of the default and must be sufficiently particular and substantiated to enable the
Court to assess its reasonableness.
[38] The default here is not a single event but a sustained sequence. It encompasses:
a. The failure to deliver an answering affidavit within the prescribed period
following the notice of intention to oppose filed on 18 March 2024;
b. The failure to secure enrolment of the matter on the opposed roll;
c. The failure to appear at the hearing on 29 July 2024, notwithstanding a
written communication to the respondent’s attorney on that very date;
and
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d. The attorney’s failure, if instructions or funding had by that stage broken
down, to withdraw from record, so that the status of the proceedings was
not left in doubt.
[39] The explanation tendered must cover each limb of that sequence. The
applicant’s explanation, as set out in the founding and replying affidavits, rests
on three pillars:
a. Financial distress preventing her from funding her attorneys.
b. A deterioration in her mental health attributed to the threat to her home
and livelihood; and
c. An absence from Johannesburg during which she travelled to the
Eastern Cape for traditional healing, during which she was unable to
consult with her attorneys.
[40] This explanation is, in my judgment, materially deficient for several reasons.
[41] First, t he explanation is directed almost exclusively at the applicant’s own
alleged inability to engage with her attorneys. It does not address the attorney’s
own failure, over a period of more than four months, to take any procedural step
to protect the client’s position. The attorneys remained on record at all material
times. They were in a position to correspond with the respondent’s attorneys
on the very date of the hearing, and they filed the present application.
[42] The mandate plainly subsisted. No explanation is offered by either the applicant
or by the attorneys as to why no answering affidavit was delivered , why the
attorneys considered themselves unable to take those steps or why they did
not withdraw timeously from record. Practitioners are expected to take proactive
steps to protect their clients’ interests, and to withdraw formally where they
cannot. Neither course was taken. The unexplained inaction of the attorneys
must, on t he authorities, be visited upon th e applicant, absent a sufficient
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showing that she was herself without fault in those failures - a showing she has
not made.
[43] Second, the financial dimension of the explanation is precisely the kind of
unsubstantiated assertions against which this Court cautioned in Phetlu. The
applicant has placed before the Court a single payslip reflecting her net monthly
income. She has provided no particularised disclosure of her monthly
expenditure, savings or other assets, her ability or inability to raise funds from
family or others, or any effort (if any) she made to negotiate an arrangement
with her attorneys in respect of their fees.
[44] A single payslip does not discharge the evidentiary burden identified in Phetlu
of demonstrating, to a sufficient standard of corroboration, an asserted financial
incapacity extending over several months.
[45] Third, the assertion of mental health deterioration is made without medical or
supporting evidence whatsoever. No medical report, no letter from a treating
practitioner and no record of consultation or treatment has been placed before
the Court. Assertions of mental health difficulty - particularly where they are
relied upon to explain the sustained period of procedural inactivity - must be
capable of objective scrutiny. They cannot rest on the applicant’s ipse dixit
alone, especially where, on the applicant’s own version, she was sufficiently
well to instruct her attorneys to address correspondence in the morning of the
hearing.
[46] Fourth, the account of the traditional healing trip to the Eastern Cape is
strikingly imprecise. The Court is not told when the applicant left, when she
returned, or how long she was unable to communicate with her attorney. In the
absence of such particula rs, the Court cannot assess whether the alleged trip
accounts for any material part of the default. A reasonable and acceptable
explanation cannot be tendered in terms so imprecise.
[47] Taken cumulatively, the explanation falls materially short of the threshold of
[47] Taken cumulatively, the explanation falls materially short of the threshold of
reasonable acceptability required by Chetty. The lacunae are not marginal; they
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go to the heart of the first component of sufficient cause. On the authority of
Chetty, the inadequacy of the explanation is, without more, dispositive of the
application under the common law.
Common law rescission – bona fide defence
[48] For completeness, and because the parties directed submissions to each
defence advanced, I record my conclusions on the second component of
sufficient cause, namely, whether the applicant has demonstrated a bona fide
defence with prima facie prospects of success on the merits. My conclusion is
that she has not. I address this ground in turn.
[49] The first ground is alleged procedural irregularity in the enrolment of the main
application on the unopposed roll. For the reasons given in relation to the Rule
42(1)(a) analysis, the contention that Chapter 13(10) of the Practice Directive
precludes such enrolment following a notice of intention to oppose, but absent
the delivery of an answering affidavit within the prescribed period, is not a
construction that can be sustained on the ordinary reading of the Practice
Directive. The ground does not disclose a prima facie defence.
[50] The second ground is the alleged non -compliance with Rule 46(1)(a)(i) of the
Rules. The applicant offers a bare denial that she was visited by the sheriff or
that any admissions of insufficient movables was made. She does not identify
any movable assets of value that she owned at the relevant time, nor does she
suggest that any such assets would have been sufficient to satisfy the
judgement debt of R99,902.79. A bare denial, unaccompanied by any positive
averment as to what would have been found, does not r aise a prima facie
defence of substance. The defence is insufficiently particularised to warrant the
rescission of an order already granted.
[51] The third ground concerns compliance with Rule 46A. The applicant asserts in
terms of generality that Rule 46A was not complied with. She does not identify
terms of generality that Rule 46A was not complied with. She does not identify
with any particularity which requirement of Rule 46A was allegedly overlooked,
nor what material would have been placed before the Court if it had. The order
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of 29 July was granted by a Judge who was required to be satisfied that there
had been compliance with Rule 46A before declaring the primary residence
specially executable.
[52] The applicant's unparticularised assertion to the contrary is insufficient to found
a prima facie defence of the character required by Chetty. A judgment debtor
who contends on rescission that a Rule 46A safeguard was overlooked must,
at the very least, identify the specific safeguard and explain what, had it been
observed, would have altered the outcome. The applicant has done neither.
[53] The fourth ground is the in duplum Rule. The applicant's reliance on the Rule
proceeds on the premise that the difference between the original debt of
R6,555.82 and the current balance R99,902.79 is in substance interest that has
exceeded the capital. The premise is unsupported. The curren t balance as
reflected in annexure LRA3, comprises not only interest but also ongoing
monthly levy charges that continue to accrue as underlying contractual
obligations during the period of default, together with legal cos ts and
disbursements. No arithmetical case has been made out to show that unpaid
interest properly so -called has exceeded the capital on which it accrued. The
duplum defence is not made out even on a prima facie basis.
[54] The fifth ground, the alleged non-joinder of Nedbank Limited as bondholder, is
plainly unmeritorious. Annexure LRA2, the sheriff's return, confirms that
Nedbank was duly served with the main application on the 20th of June 2024
and elected not to participate. A party that received due notice of proceedings
affecting its interests and elected not to join cannot ground a non -joinder
objection8. The ground does not disclose a prima facie defence.
[55] None of the defences advanced, whether taken individually or cumulatively,
amounts to a bona fide defence with prima facie prospects of success on the
merits, as required by Chetty. The second component of sufficient cause is also
merits, as required by Chetty. The second component of sufficient cause is also
not established.
8 In re BOE Trust and Others NNO 2013 (3) SA 236 (SCA) at para 20
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[56] Both components of sufficient cause, having failed, the application for
rescission under the common law must be dismissed.
Applicant's condonation
[57] The rescission application was filed on 1 November 2024, approximately 11
weeks after the applicant became aware of the July order on 12 August 2024.
[58] I have already identified the factors the Court considers when faced with an
application for condonation herein above. I do not intend to repeat those here.
[59] The explanation tendered for the delay in bringing the rescission application
mirrors the explanation tendered for the earlier default and suffers from the
same infirmities identified above. More significantly, however, the prospects of
success on the rescission, under both Rule 42(1)(a) and the common law, are,
for the reasons set out above, poor. Under the Melane calculus, the absence
of prospects of success is a weighted consideration and weighs here against
the applicant.
[60] I have nevertheless considered the rescission application on its merits, in
recognition of the fact that it concerns the applicant's primary residence and the
home of her minor child. It is appropriate, on that footing, to grant condonation
so that the substantive rescission application is determined on its merits. That
determination, for the reasons already given, is adverse to the applicant.
Costs
[61] The respondent has successfully resisted the rescission application, and seeks
costs on an attorney and client scale. The basis for the punitive costs request
is that the applicant's conduct in filing a notice of intention to oppose, failing,
over a period of months, to take any substantive step to defend the main
application, and thereafter launching a rescission application on grounds that
lack substance.
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[62] The ordinary principle that costs follow the result plainly favours the respondent.
The issue is whether the applicant's conduct of litigation warrants the departure
from the party and party scale. The applicant's conduct is open to criticism, in
particular her sustained inaction between March and July 2024 and her pursuit
of a rescission application on grounds that, in substance, lack particularisation
and prima facie merit. I am nevertheless not satisfied that her conduct crosses
the threshold of vexatiou sness, dishonesty, or gross impropriety ordinarily
required before an order for attorney and client costs is made. The applicant is
a natural person resisting execution against her primary residence, which is
also the home of her minor child. A punitive cost order is in those circumstances
not warranted.
[63] The respondent is entitled to its costs of the rescission application on the party
and party scale. Having regard to the nature and complexity of the matter, I
consider those costs appropriately awarded on scale B.
Order
[64] The respondent's application for condonation for the late filing of its answering
affidavit is granted.
[65] The point in limine raised in the applicant's replying affidavit is dismissed.
[66] The applicant's application for condonation for the late filing of the rescission
application is granted.
[67] The application for rescission of the order granted on 29 July 2024 is dismissed.
[68] The applicant shall pay the respondent's costs for the rescission application on
the party and party scale, scale B.
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DH HINRICHSEN
JUDGE OF THE HIGH COURT
PRETORIA
DATE OF THE HEARING: 16 MARCH 2026
DATE OF HANDING DOWN JUDGMENT: 11 MAY 2026
Appearances:
For the Applicant: P Zwane of Peter Zwane Attorneys
For the Respondents: Adv EVR Braga instructed by JDB
Attorneys Incorporated