IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
UNLIMITED TRAVEL (PTY) LTD
(Registration number:2022/566940/07)
and
DR LILLIAN PHOLOHOLO
Not Reportable
Case no: 2414/2023
APPLICANT
RESPONDENT
Neutral citation: Unlimited Travel (Pty) Ltd v Pholoholo (2414/2023) [2026)
ZAFSHC 310 (21 May 2026)
Coram: MPAMA AJ
Heard: 23 April 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The time and date for the
hand-down is deemed to be 15h30 on 21 May 2026.
Summary: Rescission of default of judgment - rule 31 (2)(b) of the Uniform
Rules of Court - condonation for late filing - good cause - reasonable explanation -
bona fide defence - wilful default - dispute of fact - access to court.
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ORDER
1 The application for condonation for late filing of the application for rescission
of judgment is granted.
2 The default judgment dated 08 June 2023 is hereby rescinded.
3 The costs of this application are reserved for later adjudication.
JUDGMENT
Mpama AJ
Introduction
[1] This is an opposed application for rescission of a default judgment granted in
the absence of the applicant on 08 June 2024. The judgment sought to be
rescinded is for the payment of R489 000.00 by the applicant. The applicant is
Unlimited Travel (Pty) Ltd (Unlimited Travel), a company duly incorporated in terms
of the laws of the Republic of South Africa carrying on business at 92 Charles
Street, Westdene, Bloemfontein. The respondent is Dr Lilian Pholoholo, a medical
doctor practicing as such at Stand 07, Ganyesa Village, North West. The applicant
seeks the following relief in this application:
(a) Condonation of late filing
(b) Rescission of judgment obtained by the respondent.
Background facts
[2] Ms Candida Crystal Smith (Ms Smith) is a director of the applicant and
another entity, Candys Unlimited Collection (Pty) Ltd (Candys) which has since
been liquidated. The respondent alleges that she concluded a verbal agreement
which was later reduced into writing with the applicant. At the time of the conclusion
of the said agreement, the applicant was represented by Ms Smith. In terms of the
said agreement, the respondent advanced and loaned certain sums of monies to
the applicant. The applicant has failed to make repayment of the aforesaid loan
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amounts. On 16 May 2023, the respondent issued summons against the applicant.
The summons was served by affixing the summons to the principal door at the
applicant's registered address at 14 Kaptein Proctor Street, Brandwag,
Bloemfontein on 22 May 2023 The applicant did not defend the matter and on 08
June 2023 the respondent obtained a default judgment against the applicant.
The application
[3] On 05 February 2026, the applicant launched this application in terms of
rule 31 (2)(b) of the Uniform Rules of the Court (the rules), alternatively rule 42(1)
and in the further alternative, the common law. Ms Smith has deposed to the
founding affidavit. She averred that she is the director of the applicant as well as
another entity, Candys, which has since been placed in liquidation. She had no
knowledge of the summons issued by the respondent against the applicant. She
learnt of the default judgment in October 2025 when the sheriff attended at
Sapphire Hotel (Sapphire), Westedene, Bloemfontein for the purposes of effecting
attachment of the applicant's property.
[4] Upon learning of the judgment, she contacted the applicant's attorney. On
17 October 2025, the applicant's attorney addressed correspondence to the
respondent's attorney advising of applicant's intention to approach the court for
rescission of judgment and enquiring whether the respondent would consent to the
said application. A further letter was dispatched on 29 October 2025 as follow-up. In
reply, the respondent's attorney indicated that they were awaiting instructions from
their client regarding whether consent to the application would be granted.
[5] On 19 January 2026, the respondent's attorney forwarded a letter to the
applicant's attorney advising that he had received instructions from his client to
oppose the rescission application. The applicant submits that the delay in launching
the application was occasioned by the fact that it awaited the respondent's
the application was occasioned by the fact that it awaited the respondent's
indication as to whether the application would be opposed or not. Due to this delay,
the application was filed out of time. The delay is not excessive, and the respondent
will suffer no prejudice if the condonation for late filing is granted.
[6] The applicant has a bonafide defence to the respondent's claim in that it
does not owe the respondent as it never concluded a contract with the respondent
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but the respondent concluded a contract with Candys which has now been
liquidated and that as a director of Candys she represented the said company when
the contract was concluded. The applicant was not in wilful default in that the
summons never came to its attention since it was served on vacant premises as the
sheriffs return of service shows summons was served by affixing to the principal
door of the registered address and the premises are 'believably locked and empty'.
[7] The respondent filed her Notice to Oppose and the subsequent answering
affidavit. From the outset, the respondent denied any impropriety in the manner of
service of the summons. The respondent averred that the applicable rules expressly
authorise such manner of service, the summons was duly served by affixing the
same to the principal door at the applicant's registered address and the respondent
was entitled to the default judgment. The applicant became aware of the judgment
in October 2025 and approached its attorney who must have been fully aware of the
time limits, therefore there was no reason for the application to be brought out of
time. The applicant has failed to explain the delay in bringing the application after 19
January 2026 when it received a response from the respondent's attorney that the
application will be opposed.
[8] The respondent further averred that the plaintiffs defence is a fabrication.
She alleged that inter a/ia; the contract was concluded with the applicant; not
Candys and the applicant is trying to shift liability to Candys which has been
liquidated. Candys has never traded as Unlimited Travel but operated exclusively in
the fashion industry and never in the travel industry. The nature of Candys operation
would not require cash injections; however, the applicant needed the money as it
was organising local and international bookings for its clients and did not have
enough funds to do so. Even after Candys was liquidated, Ms Smith acknowledged
enough funds to do so. Even after Candys was liquidated, Ms Smith acknowledged
the debt and did not refer to the liquidated company.
[9] The applicant filed a replying affidavit, however, out of time and no
condonation was requested for late filing. During oral arguments, the applicant
moved for condonation, contending that the replying affidavit ought to be admitted
notwithstanding its lateness, is material for the adjudication of the matter and of
significance to both parties. It contended that the reason for late filing was attributed
to a delay in obtaining some bank statements needed in its reply.
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[10) The respondent objected to the admission of the replying affidavit, contended
that in the absence of a properly instituted application for condonation, the affidavit
falls to be disregarded. The reply was filed two days late. I have considered the
nature of the delay and in the interest of justice condonation for the late filing of the
replying affidavit is granted.
[11) In its replying affidavit, the applicant disputed the assertion that Candys
business activities were confined to the fashion industry and excluded the travel
business. In support thereof, the applicant annexed documentary proof extracted
from the Government's Central Supplier Database to show that Candys operated as
a travel agency, tour operator, reservation service and related activities and that it
traded under the style and name; Unlimited Travel. On condonation, the applicant
stated that the parties had agreed that the application for rescission would be filed
by 30 January 2026 and the application was filed only three days later and it is not
correct that the applicant was extremely out of time.
[12) The issue for determination is whether good cause has been shown by the
applicant for its condonation for late filing of the application and rescission of the
judgment.
[13) The applicant in its written and oral submissions submitted that the
application fell squarely within the provisions of rule 31 (2)(b). I will, for the purposes
of this judgment confine myself to the provisions of the said rule. Rule 31 (2)(b)
provides 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) With regard to good cause shown the applicant is required to set out facts in
its papers to establish that:
(a) There is a reasonable explanation for the default. Wilful default is 'normally
(a) There is a reasonable explanation for the default. Wilful default is 'normally
fatal but gross negligence may be condoned'. Wilful in this context connotes
knowledge of the action and its legal consequences and a conscious decision,
freely taken, to refrain from entering an appearance, irrespective of the motivation;
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(b) The application is bona fide and not made with the mere intention to delay the
plaintiffs claim;
(c) The defendant can show that he has a bonafide defence to the plaintiffs claim
and that he has a bona fide intention to raise the defence if the application is granted.
The court may also take into account the prejudice to the parties. See D R Harms
Civil Procedure in the Superior Courts Issue 58 (2019) at B-206(2).
[15] The requirements of an application for rescission of judgment were set out in
Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) [2003] ZASCA 36;
[2003] 2 All SA 113 (SCA); 2003 (6) SA 1 (SCA) para 11, as follows:
'The courts generally expect an applicant to show cause (a) by giving a reasonable
explanation of [the] default; (b) by showing that [the] application is made bona fide; and (c)
showing that [there is] a bona fide defence to the plaintiffs claim which prima facie has
some prospects of success.'
[16) The first issue I must determine is that of condonation for late filing of the
application. It is common between the applicant and the respondent that following
notification to the applicant that the respondent would not consent to the application,
it was agreed that the applicant would file its application by 30 January 2026. The
respondent contended that, despite that, upon the applicant's approach to its own
attorneys on 17 October 2025, the attorney ought to have been aware that the
application was required to be filed within 20 days from the date the applicant
became aware of the default judgment. I agree, it is so, however, at that stage, the
respective attorneys were engaged in discussions regarding the application. Once it
became clear that the respondent was not consenting, the applicant was afforded
until 30 January 2026 to file the application. The application was filed three days
after the agreed date and the applicant provided reasons for such delay. In my view,
the delay has been reasonably explained, and it was not of such duration as to
the delay has been reasonably explained, and it was not of such duration as to
prejudice the respondent. Accordingly, condonation for late filing is granted.
[17) The applicant contended that it did not receive the summons and only
became aware of the default judgment upon arrival of the sheriff at its hotel,
Sapphire. The sheriff's return of service records that at the time the summons was
affixed to the principal door of the applicant's registered office, the premises were
locked and unoccupied. I agree with the respondent, this was proper service as
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envisaged in rule 4(1 )(v). Nevertheless, the applicant's contention that it did not
receive the summons and first became aware of the judgment when sheriff attended
is neither implausible nor unfounded but remains a reasonable possibility.
[18) In RGS Properties (Ply) Ltd v Ethekwini Municipality [201 0] ZAKZDHC 27;
2010 (6) SA 572 (KZD) para 12 it was said:
'I may add to this principle that judgment by default is inherently contrary to the provisions of
s 34 of the Constitution. The section provides that everyone has a right to have any dispute
that can be resolved by the application of law decided in a fair public hearing before a Court
or, where appropriate, another independent tribunal or forum. Therefore, in my view, in
weighing up facts for rescission, the court must on the one hand balance the need of an
individual who is entitled to have access to court, and to have his or her or dispute resolved
in a fair public hearing, against those facts which led to the default judgment being granted
in the first instance. In its deliberations the court will no doubt be mindful, especially when
assessing the requirement of reasonable cause being shown, that while amongst others this
requirement incorporates showing the existence of a bona fide defence, the court is not
seized with the duty to evaluate the merits of such defence. The fact that the court may be
in doubt about the prospects of the defence to be advanced is not a good reason why the
application should not be granted. That said however, the nature of the advanced defence
must not be such that it prima facie amounts to nothing more than a delaying tactic on the
part of the applicant.'
[19) The applicant contended that no agreement was ever concluded between
itself and respondent. However, it is undisputed that the respondent is owed monies
as the monies she loaned and advanced were not repaid as agreed and that Ms
Smith acted as a representative of the entity which contracted with the respondent.
Smith acted as a representative of the entity which contracted with the respondent.
Notwithstanding, the precise identity of the entity that contracted with the
respondent remains in dispute. Was it the applicant or the liquidated Candys?
[20) In addition, amongst other issues raised, in rebuttal to the applicant's bona
fide defence, the respondent asserted that Candys has never conducted business
as a travel agent but exclusively operated within the fashion industry. However, the
documentary extract from the Government's Central Suppliers database annexed to
the applicant's papers demonstrates the contrary position that Candys has, in fact
engaged in activities consistent with the operation of a travel agency.
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[21] In my view a factual dispute exists which can only be resolved through the
leading of oral evidence. All these issues can be ventilated during trial. In these
proceedings, it is incumbent upon the applicant to establish bona fide defence
prima facie only and it is not necessary to deal with the merits of the case or to
prove its case. It is sufficient to set out the facts, which if established at the trial,
would constitute a defence. It is not the duty of this Court to fully evaluate the merits
of the applicant's defence.
[22] For these reasons I am satisfied that the application for condonation for late
filing of the application should succeed. The applicant was, amongst other things,
not in wilful default, there is a bona fide defence and rescission of judgment should
succeed.
[23] In the result, the following order is issued:
1 The application for condonation for late filing of the application for rescission
of judgment is granted.
2 The default judgment dated 08 June 2023 is hereby rescinded.
3 The costs of this application are reserved for later adjudication.
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Appearances:
For the applicant:
Instructed by:
For the respondent:
Instructed by:
Q J Moletsane
Matlho Attoneys,
Bloemfontein
H J Van der Merwe
Symington De Kok Attorneys,
Bloemfontein.
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