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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024-134581
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 10 June 2026
SIGNATURE
In the matter between:
THAMANI MOBILE (PTY) LTD FIRST APPLICANT
GEZANI FREDDY MASHELE SECOND APPLICANT
and
DATA WALLET (PTY) LTD FIRST RESPONDENT
SULIWARE (PTY) LTD SECOND RESPONDENT
F CASEY & ASSOCIATES (PTY) LTD THIRD RESPONDENT
In Re:
DATA WALLET (PTY) LTD FIRST PLAINTIFF
SULIWARE (PTY) LTD SECOND PLAINTIFF
and
2
THAMANI MOBILE (PTY) LTD FIRST DEFENDANT
GEZANI FREDDY MASHELE SECOND DEFENDANT
F CASEY & ASSOCIATES (PTY) LTD THIRD DEFENDANT
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected herein and is handed down electronically by circulation to the parties or
their legal representatives by email and by uploading it to the electronic file of this
matter on CaseLines. The date for hand -down is deemed to be the
___________________.
___________________________________________________________________
JUDGMENT
SEKWAKWENG AJ:
Introduction:
[1] Before t his Court is an opposed application for the rescission of a default
judgment granted by this Court on 19 May 2025.
[2] The first applicant is Thamani Mobile (Pty) Ltd ("Thamani"), a private company
duly incorporated in accordance with the company laws of the Republic of
South Africa, with its registered address at 6[...] G[...] Road, Midrand,
Gauteng. The second applicant is Mr Gezani Freddy Mashele ("Mashele"), an
adult male businessman who is the sole beneficial owner and director of
Thamani. The first respondent is Data Wallet (Pty) Ltd ("Data Wallet"), a
private company duly incorporated in terms of the company laws of the
Republic of South Africa, with its registered address at […] Floor, C[…] V[…]
Courtyard, Constantia Main Road, Constantia, Cape Town. The second
respondent is Suliware (Pty) Ltd ("Suliware"), a private company duly
incorporated in terms of the company laws of the Republic of South Africa,
with its registered address at Block […], Office 1 […], S[…] Office Park, 3[...]
Q[...] Crescent, Lynwood, Pretoria. Data Wallet and Suliware trade together
3
under the name "Numobile". The third respondent is F Casey & Associates
(Pty) Ltd ("Casey"), a private company duly incorporated in terms of the
company laws of the Republic of South Africa, with its registered address at
5[...] S[...] D[...] Road, Hurleyvale, Edenvale. Casey acts as a payment
intermediary between the parties and the relevant employers, receiving payroll
deductions and disbursing them as directed. It does not assert any
independent entitlement to those funds.
[3] The default judgment was granted in action proceedings instituted by the first
and second respondents against the applicants and the third respondent. In
those proceedings, Data Wallet and Suliware were the plaintiffs . Whilst
Thamani, Mashele and Casey were the first, second and third defendants
respectively. The action is pending before this Court under case number
2024-134581.
[4] Only Thamani and Mashele defended the action and Casey did not. The
default judgment was consequently granted against Casey. Casey's role in
the broader arrangement between the parties is that of an administrator or
intermediary responsible for receiving, administering or directing payments
either to Thamani and Mashele, on the one hand, or to Data Wallet and
Suliware, on the other . Depending on the instructions or legal position
applicable between the parties. Casey does not assert any independent
entitlement to those payments in its own right.
[5] The judgement of 19 May 2025 ordered Casey to make payment to Data
Wallet and Suliware in respect of the funds received and administered by
Casey. This is the very payment mechanism which is disputed in the pending
action. The effect of the default judgment was therefore to regulate the
disputed payment dispensation in favour of Data Wallet and Suliware.
[6] It is common cause that when Data Wallet and Suliware sought and obtained
the order against Casey, the application for default judgment was not served
the order against Casey, the application for default judgment was not served
on Thamani and Mashele. They were not given notice of the application,
notwithstanding that they had already defended the action and
4
notwithstanding that the disputed payment dispensation regulated by the
default judgment lay at the heart of the dispute between the parties.
[7] This constitutes the applicants' grievance. Their complaint is that the order
granted against Casey had the practical effect of directing where the disputed
payments were to be made pending the trial, without notice to them and
without affording them an opportunity to place their version before Court.
[8] The applicants contend that once the payment stream was directed to Data
Wallet and Suliware in terms of the default judgment, the subject matter of the
pending action was no longer preserved pending trial. They also contend that
the order intercepted the interim dispensation previously granted by this Court
on 25 October 2024, which had regulated the position pending the
determination of the parties' competing claims.
[9] The application is brought in terms of Rule 42(1)(a) of the Uniform Rules of
Court (hereinafter “Uniform Rules”) , alternatively under the common law. The
question before this Court is whether, having regard to the nature and effect of
the order sought and granted against Casey, Thamani and Mashele were
"parties affected" by the order within the meaning of Rule 42(1)(a) of the
Uniform Rules , and whether the order was accordingly erroneously sought
and erroneously granted in their absence.
[10] Data Wallet and Suliware contend that Thamani and Mashele's interest in the
default judgment is merely collateral. They emphasise that no order was
granted against Thamani or Mashele and that the disputes between those
parties remain to be determined in the pending action. Thamani and Mashele
contend to the contrary. They say that the order granted against Casey
directly affected the payment stream , which is the subject of the action, and
that they were accordingly entitled to be heard before it was granted.
Background
The parties and the business in which they operate
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[11] Thamani operated within the telecommunications industry and specialised in
the provision of mobile devices and data contract packages to employees of
various public sector entities. Its business model involved supplying
smartphones, tablets, laptops, and computers bundled with airtime and data
services. These products and services were offered to employees of, inter alia
the Ekurhuleni Municipality, Tshwane Municipality, Mogale City Municipality,
the City of Johannesburg, Emfuleni Municipality, Rand West Municipality and
Sefako Makgatho Health Sciences University (MEDUNSA).
[12] End users entered into 24-month deduction agreements with their employers,
who in turn deducted the monthly instalments directly from the employees'
salaries and paid the aggregate deductions to Casey. Casey received th ese
deductions from the re spective employers and subsequently remitted the
funds to Thamani. Mashele was the sole beneficial owner and director of
Thamani, having acquired 100% of its shares in either 2021 or 2022.
[13] Casey's function in this scheme is administrative. It receives payroll
deductions from the respective employers and disburses those funds to the
party it is directed to pay. It does not assert any independent entitlement to
the monies in question. As the papers consistently reflect, and as the
answering affidavit of the respondents effectively confirms, Casey is the
conduit through which the disputed payment stream flows.
[14] Data Wallet and Suliware trade jointly under the name "Numobile" and
conduct a business identical in nature to that previously operated by Thamani.
In April 2022 t he two companies acquired Thamani's business and thereafter
conducted it jointly as Numobile.
The respondents' case in the action
[15] The respondents' case in the action is that , on or about 15 April 2022,
Thamani (as seller ) and Data Wallet (as purchaser ) concluded a written
agreement for the sale of the business. I n terms of which Data Wallet
agreement for the sale of the business. I n terms of which Data Wallet
acquired Thamani's business as a going concern, with effect from 6 April
2022.
6
[16] In terms of that agreement, the assets sold included all of Thamani's existing
contracts with its public sector clients, and the arrangement between Thamani
and Casey in terms of which Casey received payments on Thamani's behalf.
Those rights were ceded to Data Wallet with effect from the completion date
of sale. The respondents further contend that Data Wallet confirmed in writing
on 5 April 2022 that the suspensive conditions of the agreement had been
fulfilled or waived. They further state that the effective date of the agreement
was confirmed as 6 April 2022 and that all employees of Thamani were
transferred to Data Wallet in terms of section 197(2) of the Labour Relations
Act.1
[17] On the respondents' version, the cession of the Casey arrangement was
given effect by a letter from Thamani to Casey dated 8 April 2022, directing
Casey to redirect all future payments to Data Wallet's nominated Standard
Bank account. Casey duly complied.
[18] From April 2022 until July 2024, Casey paid all amounts received to Data
Wallet's account on a monthly basis. Subsequent to the effective date of the
sale, all new cell phone contracts with end users were concluded in the name
of Suliware, and all subsisting contracts were beneficially owned by Suliware.
By April 2024, all original 24 -month contracts previously concluded in
Thamani's name had expired. On this version, there was accordingly nothing
remaining in Thamani's name, all subsisting contracts and the payment
stream arising from them belonged to the Numobile enterprise.
[19] The respondents say further that, pursuant to the sale of business, Mashele
entered into a written executive employment agreement with Data Wallet on
or about 26 April 2022 and became an employee of Data Wallet with effect
from the completion date of the sale. He was paid a monthly salary by Data
Wallet. The employment agreement contained a restraint of trade clause. On
this version, Mashele was not a director of Data Wallet and did not acquire
this version, Mashele was not a director of Data Wallet and did not acquire
shares in it. His status was that of an employee.
1 Act 66 of 1995.
7
[20] The respondents' case is that the working relationship deteriorated during
2024 and that Mashele unilaterally terminated it by email on 2 August 2024.
They allege that in anticipation of or as a consequence of that termination,
Mashele caused a letter dated 30 April 2024 to be written on behalf of
Thamani to Casey, directing Casey to redirect all future payments to
Thamani's FNB bank account. On the respondents' version, that letter was
only physically delivered to Casey on or about 31 July 2024 after which Casey
complied with its instructions.
[21] According to the respondents’ payments w ith effect from August 2024, that
ought to have been made to Data Wallet were redirected to Thamani. As a
result, payments totalling in the amount of R 5 022 962.87 for the months of
July, August, September and October 2024 were either paid to Thamani's
account or withheld from Data Wallet entirely. The respondents c ontend that
the bank account change letter constituted a fraudulent misrepresentation by
the Thamani and Mashele to Casey, which was issued without authority and
in breach of the sale agreement and the cession.
The applicants' case
[22] Thamani and Mashele deny that the sale of business agreement was validly
concluded. Their case is that the suspensive conditions of the sale agreement
were never fulfilled and that, as a consequence, no valid sale of the business
took place. On this version, Thamani remains the rightful owner of the
business and the payment stream generated by its clients remain payable to
it.
[23] The applicants accordingly deny that the arrangement with Casey was validly
ceded to Data Wallet and further deny that Data Wallet or Suliware were
entitled to the payments made by Casey. In their counterclaim, the applicants
contend that Suliware's option to acquire shares in Thamani was part of the
broader commercial arrangement which was never materialised. As a result,
the entire purported acquisition never came into legal effect.
the entire purported acquisition never came into legal effect.
[24] On the applicants' version, the bank account change instruction issued by
Mashele to Casey in July 2024 was therefore not a fraudulent
8
misrepresentation ab initio . According to the applicants it was a legitimate
instruction by the party lawfully entitled to the payments by its payment
intermediary. Thus, redirecting those payments back to where they ought to
have been paid all along. Thamani and Mashele maintain that they are
entitled to the payment stream and that Data Wallet and Suliware have no
such entitlement.
[25] These are the parties' competing versions and they constitute the central
dispute in the action. The trial Court will be seized with the obligation to
determine which version is correct. For purposes of this application, it is not
necessary for this Court to decide between them. What is material is that the
dispute is live and that the payment stream administered by Casey is at the
core of it.
The litigation history
[26] On 12 August 2024, Data Wallet and Suliware launched an urgent application
to this Court, citing Thamani, Mashele and Casey as respondents. The
application sought to interdict Thamani and Mashele from interfering with the
respondents' business and from issuing payment instructions to Casey, and to
interdict Casey from accepting such instructions and from making payments
other than to Data Wallet's nominated bank account. The underlying purpose
was to secure the payment stream pending judicial determination of the
commercial dispute.
[27] On 25 October 2024, this Court granted an interim order. The material terms
of that order were that Thamani and Mashele were prohibited from:
27.1 giving any instruction to Casey or to the relevant clients to change Data
Wallet’s and Suliware’s banking details;
27.2 diverting or misappropriating funds payable to Data Wallet and
Suliware from the specified municipal and institutional clients;
27.3 representing themselves as Data Wallet and Suliware or as their
authorised representatives; and
9
27.4 inducing payments due to Data Wallet and Suliware to be made
instead to themselves.
Casey was prohibited from taking, accepting or implementing any instruction from
Thamani or Mashele relating to the receipt and disbursement of funds due to the
respondents. The order further directed that action proceedings be instituted within
30 days.
[28] It is common cause that the interim order did not finally determine the rights of
the parties to the payment dispensation. It regulated the position on an interim
basis pending the institution and determination of action proceedings. The
question of who is entitled to the payments was expressly left for trial.
[29] On or about 28 October 2024, Thamani and Mashele filed an application for
leave to appeal the order of Teffo J. The filing of that application had the effect
of suspending the interim order. Data Wallet and Suliware responded by
launching a further urgent application to declare the interim order not
suspended. On 25 November 2024 Labuschagne AJ dismissed that
application, with the result that the interim order was effectively suspended for
the period during which the leave to appeal application remained pending.
[30] During this period, while the interim order was suspended, Thamani and
Mashele launched a further urgent application on or about 10 December 2024
against Casey alone, under a separate case number. Data Wallet and
Suliware were not joined. They applied for intervention and joinder. On 17
December 2024 Basson J upheld the intervention application. The application
was heard by Neukircher J on 19 February 2025 and dismissed with costs on
26 February 2025.
[31] Casey, receiving no judicial direction as to which party was entitled to the
funds, ceased paying either side. Casey paid certain service providers directly
so as to maintain continuity of service, retaining the balance of the amounts it
received pending the outcome of the legal proceedings.
received pending the outcome of the legal proceedings.
[32] On 20 November 2024 and pursuant to the direction in the Teffo J order, Data
Wallet and Suliware issued combined summons within the directed 30 -day
10
period. In the action, Data Wallet and Suliware were the first and second
plaintiffs; Thamani, Mashele and Casey were the first, second and third
defendants. The combined summons was served on all three defendants.
[33] Thamani and Mashele filed their notice of intention to defend on 9 December
2024. Casey did not file a notice of intention to defend. The period for Casey
to do so expired on 5 December 2024. Casey was accordingly in default from
that date. On 5 February 2025, Data Wallet and Suliware filed an application
for default judgment against Casey in terms of Rule 31(2) of the Uniform
Rules. The application was confined to Casey. It was not served on Thamani
or Mashele. No notice of the application or of the date on which it would be
placed before Court was given to them.
[34] The relief sought against Casey was as follows:
34.1 that Casey be prohibited from making any payments to Thamani or
Mashele;
34.2 that Casey pay all future amounts received from the relevant employers
to Data Wallet's nominated Standard Bank account without deduction;
that Casey pay R 5 022 962.87 in respect of the payments for July to
October 2024;
34.3 that Casey pay any further amounts due from November 2024
onwards;
34.4 that Casey pay interest a tempore mora;
34.5 that Casey accept no further instructions from Thamani or Mashele in
relation to those funds; and
34.6 that Casey pay the costs of the application on the attorney and own
client scale, alternatively Scale C.
[35] The matter was set down on the unopposed default judgment roll for 19 May
2025. When the application was called before Nicholson AJ, the attorney for
Data Wallet and Suliware informed the Court that there were three defendants
11
in the action, that Thamani and Mashele had filed notices of intention to
defend, and that Casey had not. He further advised the Court that the draft
order had been modified to seek relief against Casey only. Nicholson AJ was
satisfied with the explanation and, there being no appearance for Casey,
granted default judgment against Casey in the terms of the draft order. The
order is dated 19 May 2025.
[36] The order thereby directed that Casey:
36.1 be prohibited from making any payments to Thamani or Mashele;
36.2 pay all future amounts received to Data Wallet's Standard Bank
account;
36.3 pay R 5 022 962.87 to Data Wallet;
36.4 pay any further amounts due from November 2024 onwards;
36.5 pay all future amounts without deduction; to accept no instructions from
Thamani or Mashele relating to the receipt and disbursement of those
funds;
36.6 pay interest; and
36.7 pay costs.
[37] It is common cause that this order was obtained without notice to Thamani
and Mashele. Its effect was to regulate, in Data Wallet and Suliware's favour,
the same payment stream that is the subject of the live and unresolved
dispute between all the parties in the pending action.
Discovery of the judgment and the steps taken by the applicants
[38] On or about 2 June 2025, Mashele was telephonically informed by a
representative of Casey that a judgment had been obtained against Casey.
He did not at that stage have a copy of the order.
[39] On 3 June 2025, Bagraim Sachs Inc, the attorneys acting for Data Wallet and
Suliware, wrote to Smith, Kruger and Viljoen Attorneys Incorporated ("SKV
12
Attorneys"), the attorneys acting for the applicants, confirming that the default
judgment had been granted and enclosing a copy of the order.
[40] That same letter did not stop at conveying the judgment. Bagraim Sachs Inc
simultaneously requested Thamani and Mashele to agree to judgment in the
action, on the basis that it would save further costs to do so. The applicants
place particular reliance on that request. Their submission is that it
demonstrates that Data Wallet and Suliware did not themselves treat the
default judgment as an order confined to Casey and without consequence for
the pending action between the parties. To the contrary, on the day they
confirmed the order to the applicants, Data Wallet and Suliware deployed it as
a basis for pressing the applicants to submit to judgment in the action. That
use of the order is, on the applicants' case, inconsistent with the proposition
now advanced that the default judgment had no bearing on the dispute
between them and the applicants.
[41] On 4 June 2025, SKV Attorneys responded. They recorded that neither
Thamani nor Mashele had been given any notice of the application for default
judgment, that neither had been informed of the date on which the application
would be placed before Court, and that the application had accordingly been
sought and granted without any opportunity for them to be heard. SKV
Attorneys sought clarity on the basis upon which the order had been sought
without notice to their clients.
[42] On 11 June 2025, Bagraim Sachs Inc replied. The substance of the response
was that the default judgment had been sought against Casey because Casey
had not defended the action, and that any application for rescission should
properly be brought by Casey, being the party against whom the order had
formally been granted.
[43] SKV Attorneys then addressed correspondence to the attorneys acting for
Casey,calling upon Casey to bring a rescission application. Casey's attorneys
Casey,calling upon Casey to bring a rescission application. Casey's attorneys
responded on 11 June 2025 that they would obtain instructions and revert.
Follow-up correspondence was addressed on 23 June 2025, 8 July 2025 and
15 July 2025. Casey did not bring a rescission application.
13
[44] The applicants then brought the present application on 22 August 2025. They
do so on the basis that, although the default judgment was formally directed at
Casey, they were parties affected by the order within the meaning of Rule
42(1)(a) of the Uniform Rules . Reasonbeing is that the order regulated the
payment stream administered through Casey, which remains the subject of
the pending action between the parties.
[45] The application was initially enrolled for hearing on 5 November 2025 but was
not properly placed on the roll and was removed. It was subsequently re -
enrolled and was heard by this Court on 1 June 2026. Casey has filed a notice
to abide the decision of this Court. Data Wallet and Suliware oppose the
application and seek its dismissal with costs.
Analysis
The legal framework
[46] The starting point is that a plaintiff is ordinarily entitled to seek judgment
against a defendant who has been properly served and has failed to enter an
appearance to defend. Rule 42(1)(a) of the Uniform Rules is not directed at
depriving a plaintiff of that procedural entitlement merely because a defence is
later disclosed. In Lodhi 2 Properties Investments CC and Another v Bondev
Developments (hereinafter “Lodhi”) the Supreme Court of Appeal held:
"Similarly, in a case where a plaintiff is procedurally entitled to
judgment in the absence of the defendant the judgment if granted
cannot be said to have been granted erroneously in the light of a
subsequently disclosed defence. A Court which grants a judgment by
default like the judgments we are presently concerned with, does not
grant the judgment on the basis that the defendant does not have a
defence: it grants the judgment on the basis that the defendant has
been notified of the plaintiff's claim as required by the rules, that the
defendant, not having given notice of an intention to defend, is not
defending the matter and that the plaintiff is in terms of the rules
defending the matter and that the plaintiff is in terms of the rules
entitled to the order sought. The existence or non -existence of a
defence on the merits is an irrelevant consideration and, if
14
subsequently disclosed, cannot transform a validly obtained judgment
into an erroneous judgment."2
[47] Casey had not entered an appearance to defend. Data Wallet and Suliware
were therefore, in the ordinary course entitled to approach the Court for
default judgment against Casey. The applicants do not seek rescission merely
because they say they have a defence to the action. Their complaint is that
the order sought against Casey affected the very payment stream which is the
subject of their defended dispute with Data Wallet and Suliware, and that
default judgement was sought without notice to them.
[48] The issue is therefore whether Thamani and Mashele were "parties affected"
by the order within the meaning of Rule 42(1)(a) of the Uniform Rules ,
notwithstanding that the order was formally granted against Casey only.
[49] Rule 42(1)(a) of the Uniform Rules provide:
"The Court may, in addition to any other powers it may have, mero
motu or upon the application of any party affected, rescind or vary -
a) an order or judgment erroneously sought or erroneously granted in
the absence of any party affected thereby."
[50] The purpose of Rule 42(1)(a) of the Uniform Rules is well established. It exists
to correct, expeditiously, an order or judgment that was granted in
circumstances falling within the rule. Its scope is confined 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 , the
Constitutional Court stated:
"It is trite that an applicant who invokes this rule must show that the
order sought to be rescinded was granted in his or her absence and
2 Lodhi 2 Properties Investments CC and Another v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA) at
para 27.
15
that it was erroneously granted or sought. Both grounds must be
shown to exist. "3
[51] At paragraphs 56 and 57 of the above case , the Constitutional Court made
clear that absence and error are separate and independent requirements,
each of which must be established. The Rule does not exist to provide a
litigant with a rehearing merely because that litigant is dissatisfied with an
outcome. It exists to correct an order that was sought or granted in
circumstances that satisfy both limbs of the Rule.
[52] The Constitutional Court held at paragraphs 71 and 72, that rescission must
be approached against the background of the principle of finality in litigation.
Litigation must come to an end. Courts should not lightly reopen orders
already granted, and the mere fact that an order has become inconvenient to
a party is not a sufficient basis for rescission. At paragraphs 79 to 86 the
Court further held that the word "may" in Rule 42(1) of the Uniform Rules
preserves a judicial discretion. Even where the jurisdictional requirements of
the Rule are established, the Court does not automatically grant rescission. It
must exercise its discretion judicially, having regard to considerations of
fairness and justice on the particular facts.
Were the applicants parties affected by the default judgment?
[53] It is common cause that the application for default judgment was not brought
to the attention of Thamani and Mashele before the order was granted. They
were not served with the application and were not given notice of the hearing
date. The point of departure is therefore that the order was granted in their
absence. That, however, does not conclude the enquiry under Rule 42(1)(a)
of the Uniform Rules. The further question is whether, notwithstanding that the
order was formally granted against Casey only, Thamani and Mashele were
parties affected by that order.
[54] The phrase "any party affected" in Rule 42(1)(a) of the Uniform Rules does
[54] The phrase "any party affected" in Rule 42(1)(a) of the Uniform Rules does
not mean every person who may suffer some inconvenience or some indirect
3 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 2021 (11) BCLR 1263 (CC) at para 54.
16
commercial consequence from the order. In De Villiers and Others v Trustees
for the Time Being of the GJN Trust and Others ,4 the Supreme Court of
Appeal dealt directly with the standing under Rule 42(1)(a) of the Uniform
Rules and approved of the formulation in United Watch & Diamond Co (Pty)
Ltd and Others v Disa Hotels Ltd and Another (hereinafter “United Watch”) ,5
namely that the applicant must show a direct and substantial interest in the
judgment or order sought to be rescinded. That means a legal interest in the
subject matter of the order which may be prejudicially affected by it.
[55] In United Watch,6 the Court held that the required interest is one which would
have entitled the person concerned to intervene in the proceedings in which
the order was granted. The interest must be legal, not merely financial or
commercial. In Henri Viljoen (Pty) Ltd v Awerbuch Brothers ,7 the Court
distinguished between a legal interest in the subj ect matter of the litigation ,
which is to be deemed sufficient and a mere financial interes t, which is not to
be deemed sufficient.
[56] The same approach was restated in Gordon v Department of Health,
KwaZulu-Natal,8 the Supreme Court of Appeal held that the test is whether the
party alleged to have an interest has a n actual legal interest in the subject
matter, which may be affected prejudicially by the judgment. The Court further
emphasised that the order sought or granted is relevant to the enquiry if party
has a direct and substantial interest. The Court must therefore examine the
substance of the order and not only the formal identity of the party against
whom it was granted.
[57] That approach is consistent with Amalgamated Engineering Union v Minister
of Labour,9 where the Court held that the enquiry is not concerned with the
subject matter in the abstract, but rather with the manner in which, and the
extent to which, the order may affect the interests of third parties. The fact that
extent to which, the order may affect the interests of third parties. The fact that
4 De Villiers and Others v Trustees for the Time Being of the GJN Trust and Others 2019 (1) SA 120 (SCA) at
paras 21 and 22.
5 United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C).
6 United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another above n 6 at para 415C–H.
7 Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) at para 169H.
8 Gordon v Department of Health, KwaZulu-Natal 2008 (6) SA 522 (SCA) at paras 9 and 10.
9 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at para 656.
17
the order was granted against Casey only is therefore relevant, but not
decisive.
[58] The enquiry is also informed by the audi alteram partem principle. In Dabner v
South African Railways and Harbours,10 the Appellate Division recognised the
basic principle that a person should not be prejudiced by an order without
being afforded an opportunity to be heard. In Zondi v MEC for Traditional and
Local Government Affairs 2005 (3) SA 589 (CC), 11 the Constitutional Court
affirmed that procedural fairness requires that a person whose legal interests
may be affected , ought to be afforded an adequate opportunity to be heard.
The point is not one of form. It is one of fairness.
[59] It follows from these authorities that the form of the order is not conclusive. If
the default judgment merely imposed obligations on Casey without affecting
any legal interest of Thamani and Mashele, their interest would be collateral.
If, however, the order regulated the very payment stream which is the subject
of the pending action and did so before the competing claims to that payment
stream were determined, their interest was direct and substantial.
[60] On the papers, Casey does not assert any entitlement to the funds it receives.
Its role is administrative. It receives and disburses the payments in
accordance with the applicable instruction, arrangement or Court order. The
substantive dispute is between Data Wallet and Suliware, on the one hand,
and Thamani and Mashele, on the other, regarding who is entitled to those
funds. Casey is the mechanism through which that dispute is given practical
effect.
[61] Once Casey's role is understood in that way, the nature of the default
judgment becomes plain. The order did not merely resolve a procedural
default by Casey. It directed Casey to administer the payment stream . It
prohibited payment to Thamani and Mashele. It directed payment to Data
Wallet. It directed that all future amounts received by Casey was to be paid to
Wallet. It directed that all future amounts received by Casey was to be paid to
Data Wallet's account. It prohibited Casey from accepting further instructions
from Thamani and Mashele. In doing all of this, the order regulated the very
10 Dabner v South African Railways and Harbours 1920 AD 583 at para 598.
11 Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC) at para 112.
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subject matter of the pending action between the applicants and the first and
second respondents, before that matter had been determined.
[62] Data Wallet and Suliware argued that the Court which granted the default
judgment was informed that Thamani and Mashele had filed notices of
intention to defend. That is so , however it does not answer the present
enquiry. Knowledge that Thamani and Mashele had defended the action is not
the same as notice to them that an order would be sought against Casey
directing payment of the very funds in dispute. The question is not whether the
Court knew of their status. The question is whether they were entitled to be
heard before an order was granted which affected the subject matter of their
defence.
[63] Data Wallet and Suliware also argued that the interim order of Teffo J already
prevented payment to Thamani and Mashele, and that rescission would
therefore not improve their position. That submission does not meet the
applicants' complaint. The order of Teffo J was an interim order. It regulated
the position pending action proceedings. It was not a final determination of the
parties' entitlement to the payment stream. The default judgment directed
Casey to pay Data Wallet and Suliware and to continue doing so, while the
action remained unresolved. That is a materially different position from the
preservation of the status quo under an interim order.
[64] I am satisfied that Thamani and Mashele were parties affected by the default
judgment within the meaning of Rule 42(1)(a) of the Uniform Rules . Their
interest was not merely financial or collateral. It was a legal interest in the
subject matter of the pending action , namely who is entitled to the payment
stream administered through Casey.
Was the order erroneously sought and granted?
[65] It follows that the default judgment was granted in the absence of parties
affected by it. The remaining question is whether it was erroneously sought or
erroneously granted.
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[66] An order is erroneously granted where , at the time that the order was made,
the Court was unaware of a fact or circumstance that would have precluded
its grant or required a different procedural approach before granting it. As it
relates to Lodhi, where in principle a plaintiff is procedurally entitled to
judgment in the absence of the defendant, such a judgment cannot be said to
have been granted erroneously and does not assist Data Wallet and Suliware
in this matter. The complaint here is not that Thamani and Mashele have now
disclosed a defence. The complaint is that the order was sought without notice
to the parties who had a direct and substantial legal interest in the relief being
sought against Casey.
[67] Having regard to the full context of the:
67.1. role Casey undertakes as payment intermediary;
67.2. disputed entitlement to the funds it administers;
67.3. interim nature of the order of Teffo J;
67.4. fact that Thamani and Mashele had defended the action;
67.5. effect of the relief sought against Casey on the very subject matter of
that action; and
67.6. notice to Thamani and Mashele before the order was granted was
required.
The absence of such notice constituted an error within the meaning of Rule
42(1)(a) of the Uniform Rules.
The exercise of the discretion
[68] I am satisfied that the discretion preserved by the word "may" in Rule 42(1)(a)
of the Uniform Rules should be exercised in favour of rescission. The
considerations of fairness and justice that inform the exercise of that
discretion favour the applicants' position. They had a direct and material legal
interest in the relief that was being sought against Casey. They were entitled
to be heard before the order was made. The order, once granted without
20
notice to them, regulated the payment stream in dispute in a manner that
prejudiced their legal position in the pending action. To allow that order to
stand would be to permit the enforcement of a procedural advantage obtained
through a process that was incomplete. The rescission of the default judgment
does not determine the merits of the action. It restores the position that ought
to have been obtained had the applicants been given notice . The position that
they would have had an opportunity to be heard before the default judgement
was granted against Casey . Nothing in this judgment determines whether
Data Wallet and Suliware or Thamani and Mashele are entitled to the
payment stream. Those questions remain to be determined at trial.
[69] During argument, I raised with the parties the practical question whether, if
rescission were granted, some workable interim arrangement could be
proposed to avoid unnecessary disruption to the commercial operations of the
parties while the action remains pending. No agreed proposal was placed
before me prior to the preparation of this judgment. In any event, these are
rescission proceedings. They are not proceedings for the creation of a new
payment regime.
[70] The effect of rescission is therefore that the order of 19 May 2025 is set aside.
Nothing in this judgment varies or suspends the interim order granted by Teffo
J on 25 October 2024.
Prayer 2: the further relief sought
[71] A further aspect of the relief sought requires separate consideration. In prayer
2 of the notice of motion, the applicants seek an order prohibiting Data Wallet
and Suliware from applying for default judgment against Casey pending the
resolution of the issues between the parties in the action. That relief is
refused, but the refusal requires explanation.
[72] This Court has found that the applicants were parties affected by the order of
19 May 2025 because that order regulated the payment stream administered
19 May 2025 because that order regulated the payment stream administered
through Casey, being the very subject matter of the pending action. That
finding is not confined to the specific order granted on 19 May 202 5. The
reasoning is that it applies equally to any future application with a similar
21
nature, namely any application that seeks to direct or regulate the payment
stream while the question of entitlement remains unresolved in the action .
Data Wallet and Suliware are not prohibited by this judgment from
approaching the Court for competent procedural relief. They remain entitled to
do so. What this judgment makes clear is that any such application that
affects the legal interests of Thamani and Mashele must be brought on proper
notice to them, and that Thamani and Mashele are entitled to be heard before
any order is made that affects the subject matter of the pending action.
[73] A general prospective prohibition against any future application for default
judgment is neither necessary nor appropriate in rescission proceedings.
Such a prohibition would go beyond what these proceedings are designed to
achieve and would amount to an advance restriction on the procedural rights
of Data Wallet and Suliware before the nature and effect of any future
application is known. The proper safeguard lies not in a blanket prohibition but
in the principle, affirmed by this judgment, that parties who are directly and
materially affected by an order must be given notice before it is sought. Prayer
2 is accordingly refused.
Costs
[74] The applicants have been substantially successful. The central issue in the
application was whether the default judgment of 19 May 2025 should be
rescinded. That relief has been granted. However, Prayer 2 was ancillary to
the rescission relief, and its refusal does not detract from the applicants'
substantial success.
[75] I am not persuaded that a punitive costs order is warranted. The matter raised
a genuine procedural issue concerning the reach of Rule 42(1)(a) of the
Uniform Rules and the position of parties who were not formally bound by an
order, but whose legal interests were affected by it. Data Wallet and Suliware
were entitled to oppose the application. Their opposition was not frivolous or
were entitled to oppose the application. Their opposition was not frivolous or
vexatious. Costs should follow the result on Scale B.
[76] As a result, the following order is made:
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1. The default judgment granted by this Court on 19 May 2025 against the
third respondent, F Casey & Associates (Pty) Ltd, is rescinded and set
aside.
2. Nothing in this order varies or suspends the interim order granted on 25
October 2024, which remains of full force and effect.
3. The relief sought in prayer 2 of the notice of motion is refused.
4. The first and second respondents shall pay the costs of the application
jointly and severally, the one paying the other to be absolved, on Scale
B.
M D SEKWAKWENG
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION
PRETORIA
COUNSEL FOR THE 1st AND 2 nd
APPLICANT:
Adv. Borman
INSTRUCTED BY: Smith, Kruger and Viljoen
Attorneys Incorporated
COUNSEL FOR THE 1st AND 2 nd
RESPONDENT:
Adv. Saccs
INSTRUCTED BY: Bagraim Sachs Inc
COUNSEL FOR THE 3rd
RESPONDENT:
No appearance (notice to
abide filed)