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THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Reportable/Not Reportable
Case no: 2096/2021
In the matter between:
JO-ANNE MERCY ETEBARE Applicant
and
VOLKSWAGEN FINANCIAL SERVICES (SA) LTD Respondent
Neutral citation: Etebare v Volkswagen Financial Services SA Ltd (2096/2021)
19 June 2026.
Coram: NGUBENI AJ.
Heard: 24 April 2026.
Delivered: 19 June 2026.
Summary: Rescission – Default judgment – The onus lies with the applicant to
prove that the requirements for a rescission are met – No case made for rescission.
ORDER
1. The application is dismissed in toto.
2
2. The Applicant is ordered to pay the costs of the application on the scale as
between attorney and client.
JUDGMENT
Ngubeni AJ
Introduction
[1] This Court is seized with an application for rescission of a default judgment
granted on 17 March 2023, together with an application for condonation
arising from the Applicant’s substantial delay in instituting these proceedings.
[2] The application is brought under Rule 31(2)(b) of the Uniform Rules of Court 1
on the basis of “good cause”. The applicable principles are trite. An applicant
seeking rescission must establish2:
2.1. a reasonable and acceptable explanation for the default;
2.2. that the application is bona fide and not brought merely for purposes of
delay; and
2.3. the existence of a bona fide defence carrying prima facie prospects of
success.
[3] These requirements were authoritatively articulated in Silber v Ozen
Wholesalers (Pty) Ltd3, where the Appellate Division held that sufficient cause
entails both a reasonable explanation for the default and a bona fide defence
which prima facie carries some prospect of success.
1 Rule 31(2)(b) of the Uniform Rules of Court provides:
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.
2 Ferris and Another v FirstRand Bank Ltd (CCT 52/13) [2013] ZACC 46; 2014 (3) BCLR 321 (CC);
2014 (3) SA 39 (CC) para 24.
3 1954 (2) SA 345 (A) at 352.
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[4] The Supreme Court of Appeal (SCA) in Colyn v Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape)4 confirmed that an applicant for rescission must
establish a reasonable explanation for the default, bona fides, and a defence
carrying prospects of success. Mere carelessness, supine inaction, or
unexplained neglect is insufficient.
[5] In Ferris and Another v FirstRand Bank Ltd 5 the Constitutional Court
reiterated that rescission proceedings implicate the important principle of
finality in litigation and that courts must guard against abuse of process by
litigants seeking merely to delay lawful execution.
Factual Background
[6] On 7 March 2019, the parties concluded a written instalment sale agreement
in Bryanston in terms whereof the Applicant purchased a 2018 Volkswagen
Polo Vivo 1.6 Highline (5DR), bearing Engine Number C[...] and Chassis
Number A[...].
[7] The principal debt amounted to R231 488.42, inclusive of the cash price,
accessories and initiation fee. Finance charges in the amount of R155 689.42
were levied, resulting in a total repayable amount of R387 177.84. Interest
accrued at a variable rate linked to the prime lending rate plus 8.25%.
[8] The agreement provided for repayment in 72 monthly instalments payable on
the 15th day of each month. Ownership of the vehicle remained vested in the
Respondent until the Applicant has paid the full amount due in terms of the
agreement.
[9] The agreement further entitled the Respondent, upon breach by the Applicant,
to cancel the agreement, repossess the vehicle, realise the asset, retain
4 (127/2002) [2003] ZASCA 36; [2003] 2 All SA 113 (SCA); 2003 (6) SA 1 (SCA) para 11.
5 (CCT 52/13) [2013] ZACC 46; 2014 (3) BCLR 321 (CC); 2014 (3) SA 39 (CC) para . See also Chetty
v Law Society, Transvaal 1985 (2) SA 756 (A).
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payments already made, and recover any shortfall as damages. The
agreement in question falls squarely within the ambit of the National Credit
Act 34 of 2005 (“the NCA”).
[10] The Applicant breached the agreement and fell into arrears. The Respondent
thereafter complied with the procedural and substantive requirements of the
NCA, including the issuance of statutory notices and summons.
[11] Despite proper service of summons, the Applicant failed to enter an
appearance to defend. Consequently, default judgment was granted on 17
March 2023. The present rescission application was instituted only in October
2024, approximately eighteen months after judgment had been granted.
[12] Even after launching the application, the Applicant failed diligently to
prosecute it. The Respondent was compelled to oppose the application fully,
file answering papers, and take steps necessary to ensure finality of the
proceedings.
[13] At the hearing, counsel for the Applicant, Mr Raedani, correctly conceded that
the papers failed to establish a proper basis for rescission. Counsel further
indicated that the Applicant effectively accepted that the application could not
succeed.
[14] The sole issue persisted with concerned costs. Counsel urged the Court to
refrain from awarding costs against the Applicant, alternatively to award only
party-and-party costs, contending from the bar that the Applicant was a
person of limited means and that her financial difficulties arose from failures
by an alleged debt counsellor.
[15] No evidence whatsoever was placed before Court substantiating the
existence of debt review proceedings, misconduct by a debt counsellor, or
any inability by the Applicant to satisfy an adverse costs order.
Condonation
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[16] The Applicant’s delay of approximately eighteen months in launching the
rescission application is manifestly excessive and inordinate.
[17] The principles governing condonation are well established. In Melane v
Santam Insurance Co Ltd 6, the Appellate Division held that the Court
exercises a discretion upon consideration of all relevant circumstances,
including the degree of lateness, the explanation therefor, prospects of
success, and the importance of the matter. These principles were reaffirmed
by the Constitutional Court in Van Wyk v Unitas Hospital and Another (Open
Democratic Advice Centre as Amicus Curiae)7, where it was also held that the
overarching enquiry is whether granting condonation would serve the interests
of justice.8
[18] In Uitenhage Transitional Local Council v South African Revenue Service 9 the
SCA stressed that an applicant for condonation is required to furnish a full,
detailed and accurate account of the causes of the delay and their effects so
as to enable the Court properly to assess responsibility. The SCA warned
further that condonation cannot be had merely for the asking , and that a
litigant seeking an indulgence bears the obligation of demonstrating respect
for the Rules and processes of Court.
[19] Similarly, in Grootboom v National Prosecuting Authority and Another 10, the
Constitutional Court confirmed that the interests -of-justice enquiry requires
consideration of the length of the delay, the explanation therefor, prejudice,
and prospects of success. Where no acceptable explanation exists,
condonation should ordinarily be refused.
[20] The Applicant’s explanation for the delay is woefully deficient. There is no
comprehensive chronology accounting for the extensive period of inactivity.
6 1962 (4) SA 531 (A) at 532.
7 (CCT 12/07) [2007] ZACC 24; 2008 (4) BCLR 442 (CC); 2008 (2) SA 472 (CC) para 20.
8 See also Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality [2017] 2 All SA 677
(SCA); 2017 (6) SA 360 (SCA) para 11.
9 (011/2003) [2003] ZASCA 76; [2003] 4 All SA 37 (SCA); 2004 (1) SA 292 (SCA) para 6.
10 (CCT 08/13) [2013] ZACC 37; 2014 (1) BCLR 65 (CC); 2014 (2) SA 68 (CC) paras 22 and 50.
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Courts are not entitled to speculate in favour of litigants who fail to place
material facts before them.
[21] Equally concerning is the fact that, after instituting proceedings, the Applicant
again adopted a supine attitude and failed actively to prosecute the matter to
finality.
[22] Nonetheless, i n light of Counsel’s concession that rescission could not
properly be sustained, the issue of condonation effectively collapses into the
broader enquiry regarding the absence of prospects of success.
The Merits of the Rescission Application
[23] The Applicant’s explanation for the default is premised largely upon an
alleged change of residential address and purported non -receipt of summons.
That explanation is untenable both factually and legally.
[24] The Respondent served process at the domicilium citandi et executandi
expressly chosen by the Applicant in the instalment sale agreement. The
Applicant bore a contractual obligation to notify the Respondent of any
change of address. She failed to do so.
[25] It is trite that a litigant cannot evade the consequences of proper service by
neglecting contractual obligations relating to domicilium. The risk of non -
receipt accordingly falls squarely upon the Applicant.
[26] In Maujean t/a Audio Video Agencies v Standard Bank of South Africa
Ltd11, the Court recognised that a litigant who consciously disregards
contractual and procedural obligations may properly be found to be in wilful
default. The Applicant’s conduct in casu demonstrates not mere inadvertence,
but a sustained and conscious disregard for both contractual obligations and
court process.
11 1994 (3) SA 801 (C).
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[27] In HDS Construction (Pty) Ltd v Wait 12, the Court observed that wilful default
exists where a litigant, with knowledge of the action and the consequences of
non-participation, freely elects not to take the necessary procedural steps to
protect his or her interests. The Applicant’s prolonged inactivity, coupled with
the absence of any credible explanation, falls squarely within that principle.
[28] The Applicant was aware of her indebtedness, aware of her arrears, and
aware that enforcement proceedings were likely. Yet she took no meaningful
steps either to regularise her account or to protect her legal position. The
Applicant has furthermore failed entirely to disclose a bona fide defence.
[29] It is insufficient merely to deny indebtedness in vague or general terms. A
rescission applicant must place before Court material facts which, if
established at trial, would constitute a legally cognisable defence.
[30] The Applicant’s papers are bereft of such facts. There is no challenge to the
validity of the agreement, the computation of the indebtedness, the
Respondent’s compliance with the NCA, or the procedural regularity of the
default judgment.
[31] The SCA in Leo Manufacturing CC v Robor Industrial (Pty) Ltd t/a R obor
Stewarts & Lloyds13 made plain that rescission cannot be granted where an
applicant fails to disclose the grounds of a substantive defence.
[32] The inescapable inference is that the present application was instituted not to
ventilate a genuine dispute, but merely to delay the consequences of a
lawfully obtained judgment.
[33] In Swadif (Pty) Ltd v Dyke NO 14, the Appellate Division underscored the
importance of finality in litigation and held that rescission is not available
12 1979 (2) SA 298 (E).
13 2007 (2) SA 1 (SCA) para 4.
14 1978 (1) SA 928 (A).
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merely because a litigant later regrets the consequences of a judgment
properly obtained.
[34] Further, c ourts are enjoined to protect the integrity and finality of judicial
proceedings. The Constitutional Court 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 (Council for the Advancement
of the South African Constitution and another as amici curiae) 15 reaffirmed
that courts possess an inherent power to protect their own processes against
abuse and deliberate obstruction.
[35] The present proceedings bear all the hallmarks of litigation instituted not to
ventilate a genuine dispute, but rather to delay and obstruct the lawful
enforcement of a valid judgment debt.
[36] I hasten to point out that t he Applicant elected not to file replying papers.
Consequently, the factual averments made by the Respondent stand
substantially uncontested.
[37] Applying the principles articulated in Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd 16, this Court is obliged, in motion proceedings, to
accept the Respondent’s version where disputes of fact arise and the
Respondent’s allegations are not so untenable as to be rejected on the
papers. There is no basis upon which the Respondent’s version can be
impugned.
Costs
[38] The ordinary rule is that costs follow the result. However, a court retains a
wide judicial discretion to depart from the ordinary scale and to award costs
on the punitive scale as between attorney and client where considerations of
justice and equity so require.
15 (CCT 52/21) [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) para 130.
16 1984 (3) SA 623 (A) at 634E-635C.
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[39] Punitive costs orders serve multiple purposes. They mark the Court’s
displeasure at reprehensible conduct, discourage abuse of judicial process,
vindicate the authority of the Court, and more fully indemnify an innocent
litigant compelled to incur unnecessary legal expenses.
[40] The principles governing punitive costs are well established. In Public
Protector v South African Reserve Bank 17, the Constitutional Court confirmed
that attorney -and-client costs are warranted where conduct is frivolous,
vexatious, manifestly inappropriate, or constitutes an abuse of court process.
[41] Likewise, the Constitutional Court in De Lacy and Another v South African
Post Office 18 held that punitive costs orders are justified where litigation is
pursued recklessly, opportunistically, or in a manner designed to frustrate
lawful processes.
[42] The SCA similarly held in Plastic Convertors Association of South Africa on
behalf of Members v National Union of Metalworkers of South Africa and
Others19 that attorney -and-client costs may properly be awarded where a
party acts mala fide, unreasonably, or in a manner constituting a gross abuse
of process.20
[43] Several considerations compel such an order in the present matter. The
Applicant launched rescission proceedings after an egregious delay of
approximately eighteen months without furnishing a satisfactory explanation.
[44] Despite invoking the Court’s indulgence, the Applicant failed diligently to
prosecute the application thereafter. The Applicant persisted in litigation
devoid of any bona fide defence and ultimately conceded, through counsel,
that no proper case for rescission had been established.
17 (CCT107/18) [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC) para 223.
18 (CCT 24/10) [2011] ZACC 17; 2011 (9) BCLR 905 (CC) para 117.
19 (2016) 37 ILJ 2815 (LAC) para 46.
20 See also Beinash v Wixley 1997 (3) SA 721 (SCA) at 739I.
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[45] The Respondent, having complied meticulously with the NCA and all
procedural prescripts, was unnecessarily compelled to incur substantial legal
costs in opposing meritless proceedings.
[46] This Court cannot ignore the broader systemic implications of such conduct.
The administration of justice depends upon respect for procedural rules,
finality of judgments, and the responsible invocation of judicial processes.
[47] Unmeritorious rescission applications brought solely to delay execution
undermine legal certainty, prejudice successful litigants, congest court rolls,
and erode confidence in the administration of justice.
[48] The Applicant’s unsupported plea for leniency on account of alleged financial
hardship carries little weight. No admissible evidence was tendered in support
thereof. Assertions from the bar do not constitute evidence.
[49] Moreover, financial hardship cannot excuse abuse of court process. To hold
otherwise would effectively immunise litigants from the ordinary
consequences of reckless litigation conduct.
[50] In all the circumstances, this Court is satisfied that the Applicant’s conduct
warrants judicial censure and that a punitive costs order is both just and
necessary. Costs on the scale as between attorney and client are accordingly
appropriate.
Order
[51] In the result, the following order is made:
1. The application is dismissed in toto.
2. The Applicant is ordered to pay the costs of the application on the scale
as between attorney and client.
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___________________
T NGUBENI
ACTING JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances
For the Applicant: Adv. Raedani
Instructed by: Manganye-Khazamula Attorneys
c/o Mjila & Partners Inc t/a Mhlabeni Inc.
For the Respondent: Mr Adam
Instructed by: Symington De Kok Inc.
c/o Mervyn Joel Smith Attorneys.