SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 129816/2023
DATE: 3 July 2026
In the matter between:
BRETT’S JANITORIAL SERVICE (PTY) LIMITED
(Registration No. 2012/086109/07)
First Applicant
VUKOSI BRETT MHLARHI
(ID No. 9[…] )
Second Applicant
And
CEMBLOCKS (PTY) LIMITED
(Registration No. 1981/007595/07)
Respondent
In re
CEMBLOCKS (PTY) LIMITED
(Registration No. 1981/007595/07)
Plaintiff
and
BRETT’S JANITORIAL SERVICE (PTY) LIMITED First Defendant
VUKOSI BRETT MHLARHI Second Defendant
Coram: M Van Nieuwenhuizen, AJ
Heard on: 16 February 2026
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: ___
Date: 3 July 2026
Signature:
2
Delivered: 3 July 2026
Flynote: Civil procedure – Rescission of judgment – Rule 42(1)(a) – Default
judgment – Service of process – Pre-April 2024 Rule 4(1)(a)(iv)
and Rule 4(1)(a)(v) - Sheriff effecting service by affixing process to
principal gate – Law requiring service at a chosen domicilium by
delivering or leaving a copy and, in the case of a company, by
delivering a copy to a responsible employee at its registered office
or principal place of business – Returns of service not disclosing
compliance with the prescribed methods of service – Applicants
deprived of proper notice of the proceedings – Default judgment
erroneously sought and erroneously granted – Rescission granted
JUDGMENT
M VAN NIEUWENHUIZEN, AJ:
INTRODUCTION
[1] This is an application for rescission of a default judgment granted on 11
April 2024.
[2] The applicants contend that the judgment was erroneously sought and
granted as contemplated in Rule 42(1)(a) of the Uniform Rules of Court
because, the summons was not properly served. It submits that the
returns of service did not establish compliance with Rule 4 of the
Uniform Rules of Court
1 as it stood at the time service was e ffected and
that, had the Court been appraised of the true position , default judgment
would not have been granted.
1 Act 59 of 1959 (as amended)
3
[3] The respondent opposes the application and inter alia contends that
service was duly effected at the applicants’ chosen domicilium citandi et
executandi.
[4] The issue for determination is whether the returns of service upon which
the default judgment was granted establishes proper service in
accordance with the Uniform Rules of Court. If it did not, the judgment is
to be rescinded irrespective of the merits of the applicants’ defence.
THE RELEVANT FACTS
[5] The first applicant is a company. Service of the summons was
purportedly effected by the Sheriff on 11 December 2023 at 11h 46. The
return of service records that service was effected as follows:
“That on the 11th of December 2023 at 11 h46 at Unit […] , F[…] P[…] ,
1[…] M[…] Street, Bronkhorstspruit being the chosen domicilium
citandi et executandi of Brett’s Janitorial Services (Pty) Limited
(Registration No. 2012(086109/07). A copy of the Combined
Summons, Particulars of Plaintiff's Claim and Annexures was
served by affixing to the principal gate. After a diligent search at the
given address no other manner of service was possible. Rule
4(1)(a)(iv).”
[6] The second applicant is a natural person and sole director of the first
applicant. The return of service in respect of the second applicant
records that service was effected as follows:
“That on the 11th of December 2023 at 11h46 at Unit […] , F[…] P[…] ,
1[…] M[…] Street, Bronkhorstspruit being the chosen domicilium
citandi et executandi of Vukosi Brett Mhlarhi (Identity No: 9[…] ). A
copy of the Combined Summons, Particulars of Plaintiff's Claim
and Annexures was served by affixing to the principal gate. After a
diligent search at the given address no other manner of service was
possible. Rule 4(1)(a)(iv).”
4
[7] The returns of service reflect that the Sheriff served the summons by
affixing a copy thereof to the principal gate at the address identified as
the applicants’ domicilium citandi et executandi. The returns further
record reliance upon Rule 4(1)(a)(iv) of the Uniform Rules . No
responsible employee of the first applicant was served.
THE APPLICABLE LEGAL PRINCIPLES
[8] Rule 42(1)(a) empowers a Court to rescind or vary an order or judgment
erroneously sought or erroneously granted in the absence of a party
affected thereby.
[9] It is well established that where a judgment has been erroneously
granted rescission follows as of right and an applicant is not required to
establish good cause, f urnish a reasonable explanation for the default ,
or demonstrate a bona fide defence on the merits.2
[10] In Bakoven Ltd v GJ Howes (Pty) Ltd3 it was held that:
“Rule 42(1)(a) of the Uniform Rules of Court is a procedural step
designed to correct expeditiously an obviously wrong judgment or order.
An order or judgment is “erroneously granted”, within the meaning of
Rule 42(1)(a), when the Courts commits an “error” in the sense of a
“mistake in a matter of law appearing on the proceedings of a Court of
record”. It follows that a Court, in deciding whether a judgment was
“erroneously granted”, is, like a Court of appeal, confined to the record
of proceedings. In contradistinction to relief in terms of Rule 31(2)(b) or
under the common law, the applicant need not show “good cause” in the
2 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) and
Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA)
3 1992 (2) SA 466 (ECD)
5
sense of an explanation for his default and a bona fide defence. Once
the applicant can point to an error in the proceedings, he is without
further ado entitled to rescission. It is only when he cannot rely on an
“error” that he has to fall back on Rule 31(2)(b) (where he was in default
of delivery of a notice of intention to defend or of a plea) or on the
common law (in all other cases). In both latter instances he must show
good cause.”
[11] In the present case the judgment was granted in the absence of the
applicants and the applicant s are affected by the judgment . The
applicants contend that there was an error in the procedure that led to
the judgment being granted against them in their absence without
summons having been properly served on them, with the result that they
had no knowledge that the respondent had instituted legal proceedings
against them. The purpose of R ule 42(1)(a) is to correct the error in the
procedure in obtaining the default judgment.
[12] A Court granting default judgment must be satisfied that proper service
has been effected. Service is not a mere procedural formality. It is the
mechanism by which a litigant is afforded notice of proceedings and the
opportunity to be heard.
[13] While the Sheriff’s return of service constitutes prima facie proof of the
facts stated therein, it must nevertheless disclose facts demonstrating
compliance with the Rule relied upon. Equally where the return itself
demonstrates non- compliance with the Rules, a Court is entitled to
determine the validity of service from the contents of the return.
[14] Proper service of initiating process lies at the heart of procedural
fairness and the audi alteram partem principle. A court should be slow to
deprive a litigant of the opportunity to be heard where service has not
been effected in accordance with the Rules.
RULE 4(1)(a)(iv) PRIOR TO ITS AMENDMENT ON THE 12
TH OF APRIL 2024
6
AND THE EFFECT OF NEDBANK LTD V CONCO 4 (“THE CONCO
JUDGMENT”)
[15] Prior to the amendment that came into effect on 12 April 2024, Uniform
Rule 4(1)(a)(iv) read:
“Service of any process of the Court directed to the Sheriff … shall be
effected … –
(iv) if the person so to be served has chosen a domicilium citandi,
by delivering or leaving a copy thereof at the domicilium so
chosen;” (Court’s underlining)
[16] The significance of the pre- amendment wording is that: The rule
expressly permitted service either by “delivering” or by “leaving” a
copy at the chosen domicilium; it did not require delivery to a person
over the age of 16; and the Courts interpreted “leaving” broadly enough
to include affixing the process to the principal door of the domicilium ,
provided the method of service was reasonably likely to bring the
process to the defendant’s attention.
[17] By contrast:
[17.1] From 12 April 2024 to 26 December 2024, Rule 4(1)(a)(iv) was
amended to require delivery to a person apparently not less
than 16 years of age at the domicilium , with no provision
allowing the Sheriff simply to leave or affix the process. Service
at a domicilium had to be “delivered to a person apparently not
less than 16 years of age” . The Sheriff could no longer just
4 Nedbank Ltd v Conco and related matters (4582/2024; 8854/2024, 17151/2024; 2025/02753)
2026 ZAWCHC 38 (6 February 2026)
7
leave or affix the process at the domicilium;
[17.2] From 27 December 2024, the Rule was amended again to
provide that if no such person is present, the Sheriff may
leave a copy at the domicilium.5
[18] The aforesaid timeline is important because service by affixing after 12
April 2024 , but before 27 December 2024 did not comply with the
wording of Rule 4(1)(a)(iv), whereas the same method could, depending
on the facts, have been permissible under the pre- 12 April 2024 Rule.
[19] The leading authority under the pre- 12 April Rule 4(1)(a)(iv) is the Full
Court decision of ABSA Ltd v Mare and Others 6 (“the Mare judgment”).
The Court inter alia held:
“The manner in which a process may be delivered or left at
a domicilium in terms of r 4(1)(a)(iv) is not prescribed and depends on
the prevailing circumstances. … The duty upon a sheriff is to serve a
notice or process of court at a domicilium citandi by delivering or leaving
the notice or process in a manner by which in the ordinary course the
notice or process would come to the attention and be received by the
intended recipient, and to report to the court how the process was
served and why it was served in that manner.”
7
5 Rule 4(1)(a)(iv) currently reads “if the person so to be served has chosen a domicilium citandi,
by delivering a copy thereof to a person apparently not less than sixteen years of age at the
domicilium so chosen: Provided that if no person is present at the domicilium, the sheriff may
leave a copy at the aforesaid domicilium ;” [Sub-paragraph (iv) substituted by GNR4477 in G.
50272 of 8 March 2024 with effect from 12 April 2024 and by GNR5560 in G.50272 of 22
November 2024 with effect from 27 December 2024]
6 ABSA Ltd v Mare and Others (A56/2019) [2020] ZAGPPHC 372; 2021 (2) SA 151 (GP) (20
August 2020)
7 Mare ibid para [26]
8
[20] The Mare judgment adopted the following statement from Loryan (Pty)
Ltd v Solarsh Tea and Coffee (Pty) Ltd:8
“… presupposes delivery in any manner by which in the ordinary course
the notice would come to the attention of and be received by the
lessor. The obvious method would be by handing the notice to a
responsible employee, or by pushing it under the front door, or by
placing it in the mailbox.”
9
[21] Affixing to the front door 10 is particularly significant because it
distinguishes appropriate from inappropriate methods of service. The
Full Court held that leaving the summons on the grass where it can be
blown away, taken away or be invisible was not appropriate service. The
Mare judgment explained that, in the circumstances of that case,
appropriate methods would have included handing to the defendant
personally; handing it to a responsible employee; slipping it under the
front door; affixing it to the front door ; or placing it in a post box if one
existed.
[22] Notably the Court referred to the front door , not the main/principal
gate.
[23] In the recent Conco judgment, Mantame J expressly referred to the
Mare judgment. The Court recognised that Mare interpreted the pre- 12
April 2024 Rule but held that the amendment changed the legal position.
The judgment states that, after the 27 December amendment, the
Sheriff may not merely abandon the process, and that affixing cannot
8 Loryan (Pty) Ltd v Solarsh Tea and Coffee (Pty) Ltd 1984 (3) SA 834 (W) at 849A-B
9 Mare ibid para [26]
10 Mare ibid para 27
9
be read into the amended Rule 4(1)(a)(iv) because the amended Rule
no longer authorises it. The principal holdings from the Conco judgment
are:
[23.1] Service by affixing no longer complies with Rule 4(1)(a)(iv).
Before the amendment, service at a domicilium could validly be
effected by affixing process to the principal door in certain
circumstances. Following the amendment, the Rule requires
the Sheriff either:
23.1.1 to deliver the process to a person apparently over
the age of 16 years at the domicilium; or
23.1.2 if no such person is available, to leave a copy of the
process at the domicilium.
[23.2] The Court held that leaving is not synonymous with
affixing. The deliberate omission of the word “affixing” from
the amended Rule means that affixing is no longer an
authorised method of service.
[23.3] Default judgment should not be granted where service was
effected merely by affixing. The Court held that because the
Sheriff’s returns reflected service by affixing, the Registrar
correctly refused to grant default judgment. The Court agreed
that the amended Rule had not been complied with.
[23.4] Strict compliance with Rule 4 is required: The judgment
emphasises that where a plaintiff seeks default judgment, the
Court must be satisfied that service complies strictly with the
Uniform Rules. If the prescribed method has not been followed,
the application for default judgment cannot succeed.
[24] The Court established that service is not a mere formal or mechanical
exercise and that compliance with the Rule must appear from the return
10
itself. The Court stressed that affixing process to a gate or a door is not
synonymous with the methods of service prescribed by Rule 4(1)(a)(iv) ,
and that the Court considering default judgment must be satisfied that
the return demonstrates proper service.
ANALYSIS
[25] At the time service was effecte d in the present matter , Rule 4(1)(a)(iv),
the Rule prior to its amendment on the 12
th of April 2024, provided for
service where a party had chosen a domicilium citandi et executandi by
delivering or leaving a copy thereof at the domicilium so chosen. Rule
(4)(1)(a)(iv) read as follows:
“(iv) that if the person so to be served has chosen a domicilium
citandi, by delivering or leaving a copy thereof at the
domicilium so chosen;”
[26] Rule 4(1)(a)(v), on the other hand, specifically regulates service upon a
company or corporation and requires delivery of the process to a
responsible employee at the registered office or principal place of
business of the company. Rule 4(1)(a)(v) reads as follows:
“(v) in the case of a corporation or company, by delivering a copy
to a responsible employee thereof at its registered office or its
principal place of business within the court’s jurisdiction, or if
there be no such employee willing to accept service, by affixing
a copy to the main door of such office or place of business or
in any manner prescribed by law;” (Court’s emphasis)
[27] The Sheriff's return is notable for two reasons. The Sheriff certified that
service was effected in terms of Rule 4(1)(a)(iv) and by means of
affixing. First, the Sheriff expressly records that service was effected in
terms of Rule 4(1)(a)(iv). Secondly, the Sheriff records that service was
effected “by affixing to the principal gate”.
11
[28] The respondent submit s that the address in question constituted the
applicant's chosen domicilium citandi et executandi and that service at
that address constituted substantial compliance with the Rules.
[29] The respondent further submit s that the Sheriff's reference to Rule
4(1)(a)(iv) should not invalidate service where the summons was affixed
at the principal gate of the chosen domicilium of the first applicant.
[30] Pertaining to the first applicant the respondent argued that the Sheriff's
reference to Rule 4(1)(a)(iv) amounted to no more than a technical
irregularity and that service should be regarded as valid because there
had been substantial service.
[31] I do not agree with the aforesaid contentions . The return pertaining to
the first applicant does not purport to effect service in terms of the Rule
governing service upon a corporation or company. It specifically invokes
Rule 4(1)(a)(iv) and specifically records a ffixing to the principal gate as
the chosen method of service.
[32] In the present matter the return discloses only that the summons was
affixed to a gate. It does not disclose service upon a responsible
employee of the company . Nor does it establish compliance with the
requirements governing service upon a corporation or a company in
terms of Rule 4(1)(a)(v). The Sheriff’s return does not record service on
a responsible employee at the registered office or principal place of
business or affixing a copy to the main door of such office or place of
business. The first applicant was not served in the manner contemplated
by Rule 4(1)(a)(v).
[33] The return does not indicate that the Sheriff attempted to locate a
responsible employee of the first applicant or whether there would be an
employee willing to accept service. It does not record whether the
premises were open or closed, whether employees were present,
whether enquiries were made, or what steps constituted the alleged
12
diligent search.
[34] Instead, the return merely states that a diligent search was conducted
and that no other manner of service was possible. Those statements
constitute conclusions rather than factual averments. The returns do not
disclose the underlying facts from which a Court could determine
whether the jurisdictional requirements for resorting to affixing service
have been satisfied.
[35] The deficiency is particularly striking having regard to the time at which
service was allegedly e ffected, namely 11h46 on a weekday during
ordinary business hours. One would ordinarily expect some indication as
to why no responsible person could be found at the premises of a
corporate entity during normal working hours.
[36] The applicant argued that the returns record service by affixing to the
principal gate. It does not indicate whether the gate constituted the
entrance to the offices themselves or whether it formed part of a
perimeter boundary removed from the business premises. Nor does it
explain why affixing to the gate (as opposed to the main door) was
considered appropriate in the circumstances. The Sheriff’s return merely
states: “by affixing to the principal gate. After a diligent search at the
given address no other manner of service was possible. Rule
4(1)(a)(iv).”.
[37] Pre-the 12 April 2024 Rule, affixing was not automatically sufficient. The
test remained whether the process was left in a manner reasonably
calculated to come to the defendant’s attention in the ordinary course.
The Mare judgment treated affixing to the front door of the residence
as an example of a potentially appropriate method, but it did not say that
affixing to an outer gate will invariably satisfy the Rule. Whether affixing
to the gate is sufficient depends on the surrounding circumstances and
on whether the Sheriff’s return explains why that method was adopted. If
the Sheriff simply attached the summons to an exposed gate without
13
explaining why, this matter is distinguishable from the Mare judgment in
that the return does not establish service in a manner reasonably likely
to bring the process to the defendant’s attention.
[38] The Mare judgment did not hold that affixing to a door is always
sufficient. Thus, if the Sheriff merely recorded “affixed to the principal
gate” without explaining whether the property was enclosed, whether the
gate was exposed to the public, whether the document was securely
attached, whether there was a post box, front door or responsible
person available; or affixing to the gate was chosen, there is merit to the
defendant’s argument that the Sheriff did not comply with the standard
articulated in the Mare judgment. Indeed, the Conco judgment itself
emphasises that the Sheriff’s return should contain sufficient detail to
demonstrate effective service, although that decision is in the context of
the amended Rule.
[39] Thus, although the Conco judgment held that service by affixing is not
authorised under the amended Rule 4(1)(a)(iv) that decision does not
apply retrospectively to service effected before 12 April 2024. Such
service falls to be assessed under the former Rule 4(1)(a)(iv) and the
principles articulated in the Mare judgment. Under that regime affixing
was not per se invalid, but its sufficiency depended upon whether the
Sheriff left the process in a manner reasonably calculated, in the
ordinary course, to bring it to the attention of the defendant(s).
[40] The respondent argued that the address was the applicant's chosen
domicilium and that service at such address was accordingly sufficient.
There can be no quarrel with the proposition that service at the
domicilium is generally valid. However, the issue in the present matter
is not the correctness of the address but whether the method of service
employed complied with requirements of Rule 4. Reliance upon a
domicilium clause does not relieve the Sheriff of the obligation to comply
domicilium clause does not relieve the Sheriff of the obligation to comply
with the applicable Rule regulating service of process. The r eturns
before this Court does not establish that compliance.
14
CONCLUSION
[41] The Sheriff’s return reflected service on both applicants was effected by
affixing the process to the principal gate. At the time service was
effected, however, Rule 4(1)(a)(iv) required service on a person who
had chosen a domicilium by “delivering or leaving” a copy at the
domicilium so chosen. Likewise, Rule 4(1)(a)(v) prescribes service on a
company by delivering a copy to a responsible employee at its
registered office or principal place of business. The return pertaining to
the first applicant does not disclose compliance with either provision nor
does the return pertaining to the second applicant disclose compliance
with Rule 4(1)(a)(iv) . In the absence of proper service, the applicants
were denied notice of the proceedings, and the default judgment was
accordingly erroneously sought and erroneously granted within the
meaning of Rule 42(1)(a).
[42] Had the Court hearing the default judgment application appreciated that
the returns did not establish service in accordance with the Uniform
Rules, default judgment would not have been gr anted. The absence of
proper service constituted a fact which existed at the time the judgment
was granted and which would have precluded the granting thereof.
COSTS
[43] I am not inclined to grant costs against the respondent. It appears that
the respondent itself was unaware of the defect and merely relied on the
Sheriff's return, the respondent does not bear responsibility for the
irregularity. The defect arose solely from the manner in which the Sheriff
executed service. In my view, the appropriate cost s order in these
circumstances would be to grant costs in the cause.
ORDER
[44] The default judgment granted on 11 April 2024 is rescinded and set
aside.
15
[45] The warrant of execution and all consequential processes issued
pursuant to the default judgment are rescinded and set aside.
[46] The Applicants are granted leave to deliver their notice of intention to
defend within 10 (ten) days of this order.
[47] Costs of the application shall be costs in the cause.
______________________________________
M VAN NIEUWENHUIZEN
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg
Delivered: This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation
to the Parties/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 on 3 July 2026.
______________________________________
16
HEARD ON: 16 February 2026
DATE OF JUDGMENT: 3 July 2026
FOR APPLICANT: Adv. S V Mabodze
INSTRUCTED BY:
Ernest Rammela Inc.
Email: reception.rammelaattorneys@gmail.com
FOR RESPONDENT: Adv. J G Dobie
INSTRUCTED BY:
Rooseboom Attorneys
Email: chris@rooslaw.co.za