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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 2023-099761
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
..... DATE 27 May 2026
SIGNATURE
In the matter between:
VICTOR MABE ATTORNEYS INCORPORATED Applicant
and
JOHN MOTLATSI MARITE Respondent
In re:
JOHN MOTLATSI MARITE Plaintiff
and
VICTOR MABE ATTORNEYS INCORPORATED Defendant
This order is made an Order of Court by the Judge whose name is reflected
herein, duly stamped by the Registrar of the Court and is submitted
electronically to the Parties/their legal representatives by e -mail. This Order
is further uploaded to the electronic file of this matter on Case Lines by the
Judge or his/her secretary. The date o f this Order is deemed to be .......
2026.
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JUDGMENT
DU PLESSIS, AJ
INTRODUCTION
1.
1.1. This is an opposed application for the rescission of an order
granted by Khumalo J on 24 April 2025, by which the court granted
partial default judgment in favour of the plaintiff in the main action,
Dr John Motlatsi Marite (the respondent in this application), against
the defendant, Victor Mabe Attorneys Incorporated (the applicant
in this application). The applicant is a firm of attorneys,
represented in the litigation by its sole director, Mr Victor Mabe.
1.2. The applicant seeks the rescission of that order and, in the
alternative, the upliftment of the notice of bar and leave to file its
plea. It contends that the order was a default judgment and is
therefore susceptible to rescission; that the court ought not to have
determined the request for default judgment while its application
under Rule 27 of the Uniform Rules to uplift the bar was pending;
and that it has a bona fide defence to the claim.
1.3. The respondent opposes the application. He contends that the
order was granted after the matter was argued, that it is in
substance assailable only on appeal, that the applicant has been
guilty of a series of procedural defaults of its own making, and that
no bona fide defence has been disclosed.
1.4. The parties have been engaged in protracted and increasingly
acrimonious litigation arising out of an attorney -and-client
relationship that began during 2022 and subsequently broke down.
I have had the benefit of full argument from Adv Nortje for the
applicant and Adv Muller for the respondent, and of the heads of
argument filed by both.
THE PARTIES
2.
2.1. The applicant is Victor Mabe Attorneys Incorporated, registration
number 2008/021769/21, of 5[...] B[...] Street, Eloffsdal, Pretoria. It
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was the defendant in the main action.
2.2. The respondent is Dr John Motlatsi Marite, a medical practitioner
of Silver Lakes, Pretoria East. He was the plaintiff in the main
action.
THE PROCEDURAL HISTORY AND THE DEFAULTS
3.
3.1. The respondent issued combined summons on 3 October 2023,
claiming R141,992.67 with interest and costs. The claim, sounding
in damages, arises from an attorney -and-client relationship and
comprises three components: damages of R56,213.96 in respect
of settlements and payments allegedly made to third parties
without the respondent's instruction; R30,750.00 in respect of
allegedly excessive counsel's fees; and R55,028.71 in respect of
alleged overcharging for the applicant's own services.
3.2. The applicant delivered a notice of intention to defend on 20
November 2023, and was accordingly not in default in that respect.
The defaults upon which the respondent relies, and their
consequences, are these:
3.2.1. the applicant failed to deliver a plea within the dies,
which entitled the respondent to serve a notice of bar;
3.2.2. within the period of the bar the applicant delivered a
notice of exception under Rule 23(1)(a) on 28
December 2023. A notice of exception is not a pleading
but a precursor to an exception. It did not constitute
compliance and did not interrupt the running of the dies;
3.2.3. the applicant never delivered the exception itself, and
the notice of exception lapsed;
3.2.4. on the second notice of bar, served on 23 February
2024, the applicant delivered a notice under Rule 30(2)
and then abandoned it; and
3.2.5. the consequence of the foregoing was that the applicant
became ipso facto barred from pleading.
3.3. It is right to record at the outset, and the applicant through Adv
Nortje fairly accepted, that these defaults were of the applicant's
own making and that the bar took effect. The applicant is a firm of
attorneys and ought to have appreciated the distinction between a
attorneys and ought to have appreciated the distinction between a
notice of exception and an exception, and the consequences of
failing to prosecute either the exception or a plea. Nothing in this
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judgment should be understood as condoning that conduct.
3.4. On 17 April 2025 the applicant served an application in terms of
Rule 27 seeking the upliftment of the bar and leave to plead,
together with the postponement or removal of the request for
default judgment then set down for 22 April 2025. The Rule 27
application was opposed and was placed before the court. The
request for default judgment was heard by Khumalo J on 24 April
2025 and the following order was granted:
default judgment in favour of the plaintiff “ for the amounts
excessively charged, in the amount of R57,629.41 ”; the
postponement sine die of the claims in respect of counsel's fees
and amounts paid to third parties; interest at 7.25% per annum
from date of demand; and costs on the attorney -and-client scale,
on scale C.
3.5. The rescission application was launched on 23 June 2025 and the
answering affidavit was delivered on 3 October 2025. The
applicant filed no replying affidavit. The matter was argued before
me on 27 May 2026.
THE ISSUES
4.
Three questions arise. First, whether the order is susceptible to rescission, or
whether the applicant's true remedy lies in an appeal. Second, what occurred
at the hearing of 24 April 2025 — in particular, whether the applicant was
heard, and whether the pending Rule 27 application was determined. Third,
whether, on a claim of the nature pleaded, default judgment for a fixed sum
was competently granted.
RESCISSION OR APPEAL
5.
5.1. The respondent's primary answer to the application is that the
order was granted after argument and is therefore not a default
judgment at all, so that the applicant's remedy, if dissatisfied, is an
appeal and not a rescission. The applicant, through Adv Nortje,
submits that the order was a default judgment entered after the
applicant had been barred, and that the presence of its
representative does not alter that character.
5.2. I am satisfied that the order must be treated as a judgment by
5.2. I am satisfied that the order must be treated as a judgment by
default. The order records, on its face, that judgment was entered
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by default; the relief was sought by way of a request for default
judgment; and the applicant was, at the time, barred. The
distinction between rescission and appeal turns on precisely this.
The applicant correctly relies on Pitelli v Everton Gardens Projects
CC 2010 (5) SA 171 (SCA), for the proposition that an order
granted by default is not final in effect because it remains capable
of being revisited by the court that granted it; on De Freitas v
Addisionele Landdros, Heidelberg [1998] JOL 3645 (T), in which
an order taken by default was held not to be appealable; and on
Lee v Road Accident Fund 2024 (1) SA 183 (GJ), for the
proposition that a court of appeal should not intervene while the
court a quo retains the power to alter or reconsider its order, the
aggrieved party's remedy in that event lying in rescission.
5.3. These authorities establish that where an order is granted by
default, rescission — and not an appeal — is the appropriate
remedy. Since I have found that the order of 24 April 2025 was a
judgment by default, the applicant has approached this court by
the correct procedure. The respondent's contention that the
application is no more than a disguised appeal cannot be
sustained. The first issue is decided in the applicant's favour.
WHAT OCCURRED AT THE HEARING: THE APPLICANT WAS EXCUSED
AND THE RULE 27 APPLICATION
6.
6.1. It is common cause, and on the papers uncontested, that the
applicant's representative appeared at the hearing of 24 April 2025
but was “ excused” by the court on the footing that, being barred,
he was not entitled to make submissions. It is also common ground
that the Rule 27 application to uplift the bar had been served, was
opposed, and formed part of the papers before the court.
6.2. Adv Muller submitted that, because the order was granted in the
terms it was, the only inference to be drawn is that Khumalo J must
have considered the entire record, including the Rule 27
have considered the entire record, including the Rule 27
application, and determined the matter on its merits. He urged that
the judgment as granted admits of no other deduction.
6.3. I am unable to accept that submission, for two reasons. First, an
inference that the court considered the quantum is not the same as
an inference that the court adjudicated the Rule 27 application.
The two are distinct. That the court arrived at a figure says
something about its engagement with the amounts; it says nothing
about whether the application to uplift the bar was heard and
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decided. Second, and more fundamentally, the uncontested fact is
that the applicant's representative was excused and not permitted
to address the court. A litigant who is barred is, on that account,
ordinarily precluded from contesting the merits of the claim against
it. But a barred litigant remains fully entitled to be heard upon its
own application to be relieved of the bar; the bar does not silence a
party on the question whether the bar itself should be lifted. The
Rule 27 application was the very mechanism by which the
applicant sought to cure its default, and it was entitled to argue it.
6.4. On the material before me I cannot find that the Rule 27
application was heard and determined. What I can find is that the
applicant was excused without being heard, and that there is no
indication that the pending and opposed application to uplift the bar
was disposed of before default judgment was granted. To grant
default judgment while an undetermined application, the success
of which would have entitled the defendant to plead, remained
pending and unheard, was, in my respectful view, irregular. The
respondent's invitation to infer a determination that the record does
not disclose cannot cure that irregularity. This consideration alone
lends substantial support to the rescission.
WHETHER DEFAULT JUDGMENT FOR A FIXED SUM WAS COMPETENT
7.
7.1. There is a further and, to my mind, decisive difficulty, and it
emerged squarely from the argument. Adv Muller, properly and
candidly, conceded that the amount reflected in the default
judgment was unliquidated, by reason of the disputed nature of the
fees and the marked accounts upon which the claim is based. That
concession is well made: the claim is one for damages arising from
alleged overcharging and breach of mandate, and the amount
could only ever be arrived at by assessment, and not by mere
computation of an agreed or self-evident figure.
7.2. The consequence of that concession is significant. A claim that is
7.2. The consequence of that concession is significant. A claim that is
not for a debt or a liquidated demand cannot be disposed of as
though it were. Where a plaintiff seeks default judgment on an
unliquidated claim, the court is not entitled simply to accept the
figure contended for; it must be placed in a position to assess the
amount, upon evidence. The distinction is not a technicality. It
exists precisely because an unliquidated amount, by definition,
requires proof and judicial assessment before it can be reduced to
a money judgment.
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7.3. That brings me to what was in fact before Khumalo J. Adv Nortje
drew my attention to the discrepancy between the amount pleaded
and claimed in the application — the global sum of R141,992.67,
and in particular the amount referred to in paragraph 8.4 of the
founding papers in the main application — and the amount actually
granted, being R57,629.41. The granted figure does not appear in
the particulars of claim at all. It is the product of the calculations
contained in the schedule prepared on the respondent's behalf
(annexure M4), in which items were marked off the applicant's
statements of account against the prescribed party-and-party tariffs
and a revised total struck. Reliance was also placed by Adv Nortje
on annexure N4 to the answering papers (at CaseLines 36 -6), filed
in opposition, in support of the contention that the amount was
disputed and was not a liquidated figure capable of being granted
by default.
7.4. The discrepancy is telling. It demonstrates that the court could not
have granted R57,629.41 by accepting the sum claimed in the
summons, because that sum was never claimed. The figure could
only have been reached by an exercise of assessment of the
disputed accounts. Yet what appears to have been before the
court for that purpose was the summons, a damages affidavit, the
marked invoices, and handwritten notes. A damages affidavit and
a bundle of marked accounts are documents; they are not, without
more, the leading of evidence upon which an unliquidated claim is
to be assessed and proved. An affidavit may in a proper case
serve as the vehicle for such proof, but only where the claim is one
that may competently be disposed of in that manner and where the
court directs that the matter proceed upon affidavit evidence.
Where, as here, the amount is conceded to be unliquidated and
disputed, the placing of documents before the court does not
relieve the plaintiff of the obligation to prove the quantum, nor does
relieve the plaintiff of the obligation to prove the quantum, nor does
it convert a disputed, unliquidated claim into one capable of
summary disposal by default.
7.5. It follows that, on the respondent's own concession that the
amount was unliquidated, the granting of default judgment for the
fixed sum of R57,629.41 was not competent on the material before
the court. The respondent's submission that the terms of the order
admit of only one deduction — that the court must have considered
the amounts — does not meet the point. Even accepting that the
court engaged with the figures, the difficulty is not whether the
court looked at the amounts but whether a disputed, unliquidated
claim could be disposed of by default judgment for a fixed sum at
all, upon documents rather than evidence. In my view it could not.
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An order so granted is one that was erroneously granted, and falls
to be rescinded.
7.6. I should add that this conclusion is consistent with, and reinforced
by, the respondent's own complaint. Adv Muller submitted, with
some force, that the applicant never prosecuted either its notice of
bar challenge or its exception, and that the applicant is the author
of the procedural morass. That is so. But it does not answer the
difficulty. The respondent's remedy, faced with a barred defendant,
was to obtain judgment in accordance with the Rules. Where the
claim was unliquidated and disputed, that required proof of the
quantum; it was not open to the respondent to obtain a fixed -sum
judgment as though the claim were liquidated. The applicant's
defaults explain why it was barred; they do not validate a judgment
granted otherwise than in accordance with the Rules.
THE BONA FIDE DEFENCE
8.
8.1. In view of the conclusions reached above, it is not strictly
necessary to decide whether the applicant has disclosed a bona
fide defence, and I do not rest this judgment upon that question. I
record, however, that I have considered it.
8.2. The applicable principles are not in dispute. The explanation for a
default and the defence on the merits are not to be considered in
isolation but together: De Witts Auto Body Repairs (Pty) Ltd v
Fedgen Insurance Co Ltd 1994 (4) SA 705 (E). An applicant who
fails to establish a bona fide defence cannot succeed however
good the explanation: Vosal Investments (Pty) Ltd v City of
Johannesburg and Others 2011 (2) SA 372 (KZD); Chetty v Law
Society, Transvaal 1985 (2) SA 756 (A). The test is not whether
the defence will succeed, but whether, if established at trial, it
would constitute a defence in law.
8.3. The applicant's defence on the merits is, in part, weak. Its reliance
on a written mandate said to have been concluded on 18 June
2020 is attended by difficulty: the document is unsigned, it
predates the agreement pleaded in the particulars, and the
predates the agreement pleaded in the particulars, and the
applicant filed no replying affidavit to meet the respondent's
answer to it. Its reliance on instructions given by way of WhatsApp
is asserted but the messages relied upon were not placed before
the court. To the extent the defence rests on these matters alone,
it is thin. There is, however, a further contention of a different
character, namely that the respondent's claim is founded upon
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disputed accounts which have not been taxed, and that an untaxed
bill remains unliquidated until determined: Werksmans
Incorporated v Praxley Corporate Solutions (Pty) Ltd [2015] 4 All
SA 525 (GJ); Blakes Maphanga Inc v Outsurance Insurance
Company Ltd 2010 (4) SA 232 (SCA).
8.4. Whether that contention ultimately avails the applicant, given the
respondent's submission that a settled account cannot be taxed
and that the proper remedy is an action of the present kind, is a
matter that need not be resolved on these papers and is best left
for trial. It is enough to observe that the very dispute over whether
the amount is liquidated, taxable, or to be assessed as damages
confirms what the respondent conceded: the amount was
unliquidated. That confirms, rather than detracts from, the
conclusion that the matter was not amenable to default judgment
for a fixed sum.
RESCISSION AND UPLIFTMENT OF THE BAR
9.
9.1. For the reasons given, the order of 24 April 2025 falls to be
rescinded. The order was a default judgment granted in respect of
an unliquidated and disputed claim, for a fixed sum, upon
documents and without the quantum having been proved and
assessed as the Rules require; and it was granted while the
applicant stood excused and unheard, and while its opposed
application to uplift the bar remained, so far as the record
discloses, undetermined.
9.2. It remains to consider whether the bar should now be uplifted. The
relief is sought in the alternative, and is in any event the necessary
corollary of rescission: to rescind the judgment but leave the bar
standing would restore the applicant to the action while denying it
the ability to plead, and would invite a fresh request for default
judgment. The requirements for upliftment under Rule 27 — good
cause — do not on these facts differ materially from the sufficient -
cause enquiry that attends rescission, and I am satisfied that the
interests of justice favour the determination of the whole dispute,
interests of justice favour the determination of the whole dispute,
including the claims postponed sine die, at a trial at which the
quantum can be properly assessed. I therefore consider it just to
uplift the bar and to afford the applicant leave to deliver its plea. I
emphasise that the indulgence extends to the delivery of a plea;
the applicant has had ample opportunity to except and has not
done so, and the litigation must now proceed to the close of
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pleadings without further delay.
COSTS
10.
10.1. Both parties sought costs on the attorney-and-client scale. I am not
persuaded that a punitive order is justified against either party. The
applicant has succeeded, but its success follows upon a default
occasioned by its own want of diligence, and it would not be just to
award it the costs of an application made necessary in part by its
own conduct. The respondent has resisted the application
unsuccessfully, but did so in defence of a judgment in his favour
and cannot be visited with a punitive order for having done so. The
conduct of neither party in the rescission application itself crossed
the threshold of the vexatiousness or bad faith that warrants costs
on the attorney-and-client scale.
10.2. In the exercise of my discretion, the fairest order is that the costs of
the rescission application be costs in the cause, so that they follow
the eventual outcome of the action. To the extent that any costs
order is to be made or quantified, it is to be on scale B; the nature
and complexity of the matter do not warrant scale C.
ORDER
11.
In the result, I make the following order:
11.1. The default judgment granted on 24 April 2025 is rescinded and
set aside.
11.2. The notice of bar is uplifted, and the applicant (the defendant in the
main action) is granted leave to deliver its plea within 15 (fifteen)
court days of the date of this order.
11.3. The costs of the rescission application shall be costs in the cause,
such costs, to the extent applicable, to be taxed or settled on scale
B.
_______________________________
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DU PLESSIS AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
Date of hearing: 27 May 2026
Date of judgment: 28 May 2026
For the Applicant: Adv N Nortje
Instructed by: Sello B Letsoalo Attorneys
Inc, Pretoria
For the Respondent: Adv E Muller
Instructed by: Elliott Attorneys Inc, Pretoria