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FOURIE AJ (PHAHLAMOHLAKA J, LESO AJ CONCURRING)
INTRODUCTION:
[1] This is an Appeal against the judgment and order of the court a quo per Langa
J dated 25 July 2025 . The court a quo dismissed the appellant’s application
for rescission of judgment granted against it on 29 April 2024. The appeal is
with leave of the court a quo.
[2] The Appeal is unopposed, with the Respondents having filed a Notice to abide
by the Court’s decision.
[3] At the heart of the appeal lies the question of whether the Court a quo correctly
dismissed the Appellant’s rescission application, wherein they sought
rescission of the Default Judgment granted against them, dated 29 April 2024,
and, in so dismissing the application, also ordered costs to be paid by the
Appellants.
BACKGROUND:
[4] The Appellant, a private company with limited liability, was previously
incorporated as a close corporation until its conversion to a private company
on 20 December 2016.
[5] Despite being so converted and for reasons which the Appellant has not
seriously been able to display to this Court, the Appellant continued utilising
some of the details of the previous closed corporation, such as their name,
registration number, and place of business, in their engagements with clients
such as the Respondent.
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[6] It is largely common cause that during July 2020, the Appellant and the
Respondents concluded an agreement for the demolition of certain coal silos
at the Anglo Goedehoop Mine, Vlaklaagte Shaft.
[7] It is the performance under this agreement that forms the ultimate and
underlying causa between the respective parties. The Respondents contend
that they have fully performed under the agreement and claim payment for
their contractual performance from the Appellants. The Appellants, seemingly
under the premise of the exceptio non adimpleti contractus , performance in
terms of the contract, alternatively, no proper performance in terms of the
contract was forthcoming on the part of the Respondents, and as such, the
Appellants ought to be exempt from making payment to the Respondents.
[8] The application was brought and persisted with by the Appellant on the two -
fold approach under Rule 42(1)(a) as well as Rule 31(5)(d) of the Uniform
Rules of Court, and the Common Law.
[9] It is evident that the Appellants wish the Court to pronounce finally on the
validity of the service of the Summons, which the Appellants openly admit
would revive a Special Plea in the main action, if they are granted leave to do
so, in respect of prescription of the Respondents’ claim against the Appellants.
[10] The Court a quo in respect of service found the following:
“26. The Applicant seems to argue that since it has not been established
that there was an employee of the Applicant not willing to accept service,
the service by affixing was therefore bad. This contention in my view,
amounts to elevating form over subst ance and is inconsistent with the
decision in Brangus Ranching (Pty) Ltd v Plaaksen (Pty) Ltd 2011 (3) SA
477 (KZB), which is quoted with approval in Arendsnes Sweefspoor CC
v Botha [2013] JOL 30596 (SCA). The SCA in Arendse agreed with the
proposition th at the effectiveness of service of a Court process or
proposition th at the effectiveness of service of a Court process or
substantial compliance should trump form. Consequently, event though
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there was no employee present not willing to accept the service, the
service of the Summons by affixing it at the registered address
constitutes substantial compliance with the rule. A proper procedure
was therefor followed in order to allow the Applicant an opportunity to
participate in the process. Any confusion or prejudice which may have
resulted in steps on the Applicant’s own conduct in representing itself,
as a CC, and/or failing to ensure that the CIPC records are properly
updated. This service, in my view, was adequate and in conformity with
the Law.”
[11] Uniform Rule 42(1)(a) provides for circumstances wherein Judgment was
erroneously sought or erroneously granted.
[12] The actions of the Appellant themselves in dealing with the Respondents
leading to the information that was available to the Respondents when they
issued the Summons, and the information available to Court on whether the
Summons was served at an address in dicated by the Appellants to be their
main place of business would, in this Court’s view, move the matter past the
contention as made by the Appellant on these grounds.
[13] This Court cannot find that the Court a quo was misguided in not dealing with
the matter under the principles of Rule 42(1), and I align myself with the views
that the matter is to be adjudicated under the auspices of Rule 31(5)(d).
[14] When evaluating the matter under the aforesaid Rule, the Appellant ultimately
needed to show good cause. In the matter of Colyn v Tiger Food
Industries [1] the Supreme Court of Appeal held that an Applicant needed to
establish:
[14.1] A reasonable and acceptable explanation for their default;
[14.2] The application must be bona fide; and
[14.3] A bona fide defence which prima facie carries some prospects of
success needs to be shown.
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[15] In respect of the reasonable explanation for default, the Appellant states that
they had moved premises and registered addresses by the time the Summons
was ultimately served on them.
[16] The Appellant further states that, prior to the service of the Summons, on at
least two occasions, they informed the legal representatives acting on the part
of the Respondents that they sought any further legal process to be served at
the office of their legal representatives.
[17] Although the actions of the Appellants in dealing with third parties, such as the
Respondents, and the possibility that their actions might have invoked a
certain perception, the Court cannot find that a reasonable explanation for the
default was not provided.
[18] The Courts have found that:
“More specifically, in the context of a default judgement, wilful connotes
deliberateness in the sense of knowledge of the action and of its
consequences, i.e. its legal consequences and freely taken decision to
refrain from giving notice of intention to defend, whatever the motivation
for this conduct might be” [2]
[19] Nothing before me indicates that the Appellants knew of the Summons issued
against them, and nothing indicates that they took some sort of wilful decision
not to participate in the initial proceedings.
[20] The Constitutional Court confirmed , however, that an explanation for the
default is not the only leg on which an application stands. In Government of
the Republic of Zimbabwe v Fick[3], it is said:
“The requirements for rescission of judgment are twofold. First, the Applicant
must furnish a reasonable and satisfactory explanation for its default. Second,
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it must show that on the merits it has a bona fide defence which prima facie
carries some prospects of success. Proof of these requirements is taken as
showing that there is sufficient cause for an order to be rescinded. A failure
to meet one of them will result in refusal of the request to rescind.“
[21] If the Court has regard to the bona fide defences raised by the Appellant, the
question as raised by the Appellant in respect of the Respondents’ non -
performance seems to reflect a defence under the exceptio non adimpleti
contractus.
[22] Accordingly, the principle is that neither party should be entitled to enforce the
contract unless they have performed or are ready to perform their own
obligations. [4]
[23] As expressed by the Court in Thompson v Scholtz [5], the defence is a
stalemate defence to a claim ex contracto and not a remedy for breach of
contract.
[24] Simply put, the question this Court needs to answer is whether the
Respondents, prima facie , had any contractual obligation towards the
Appellant which was not complied with, which would afford the Appellant the
right to invoke the exceptio and withhold payment to the Respondents.
[25] The Appellant submits that severe defects existed in the Respondent's
contractual performance . The question will accordingly ultimately be, ex
contracto, in what way the Respondents failed to perform.
[26] Simply put, the Appellant avers that the Respondent has not complied with
their contractual obligations towards the Appellant, and as such should be
precluded from claiming any monies from them.
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[27] In a Rescission of Judgment application, the Court is not to pronounce on the
ultimate success of the defence as raised by the party bringing the Rescission
of Judgment application. The Appellant ought to have in the Court a quo only
established a prima facie position, which, if established at trial , constitutes a
good defence. [6]
[28] No doubt the underlying issues between the parties will be properly canvassed
when the matter is ultimately heard, but on the evidence presented to the
Court a quo, it can neither be said that the defence was raised mala fide nor
that, if it was ultimately proven, it would not be a valid defence as raised to the
Respondents’ claim.
[29] In respect of the Appellant’s claim of prescription, this Court is mindful not to
make a ruling on issues which would later need to be determined after the
leading of evidence by the respective parties. A proposed defence of
prescription is, however, one that is available to be raised by the Appellant,
and one which, under the circumstances, cannot be regarded as being raised
mala fide, and if this defence is ultimately proven, it would constitute a valid
defence against the Respondents’ claim.
[30] Premised on the aforesaid, I am satisfied that the Appellant made out a proper
case for the recission of the Judgment granted against them in their absence
and the court a quo ought to have found as such.
COSTS:
[31] The appeal has not been opposed by the Respondent, nor could the
Respondent be faulted for initially opposing the Recission of Judgment
application. It is , however, evident that the Appellant ultimately reached
success in respect of the Rescission of Judgment application for which a cost
order is warranted.
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[1] Colyn v Tiger Food Industries t/a Meadow Feed Mills (Cape) 2003 (6) SA 1
(SCA)
[2] Maujean t/a Audio Video Agencies v Standard Bank of SA Limited 1994 (3)
SA 801 (C)
[3] Government of the Republic of Zimbabwe v Fick 2013 (5) SA 325 (CC) at 85
[4] Euhar Truck & Bus (SA) Pta Ltd v Dorbyl Limited t/a Dorbyl Transport Products
& Busaf Case 38/03 (25 March 2004) at paragraph 12
[5] Thompson v Scholtz 1999 (1) SA 232 (SACA)
[6] Standard Bank of South Africa Ltd v El-Naddaf 1999 (4) SA 779 (W) at 784