IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case number: 2026-005412
In the matter between
NEDBANK LIMITED Applicant/Plaintiff
and
MAITE MAGDELINE SEKGOBELA Respondent/Defendant
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Order
___________________________________________________________________
1. The order dated 27 July 2026 under case number 2026-005412 is recalled.
2. The application for summary judgment is postponed sine die.
3. The Respondent/Defendant is granted leave to file an affidavit opposing the
application for summary judgment by 17h00 on 14 August 2026.
(1) Not reportable
(2) Not of interest to other judges
Date: 30 July 2026
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4. There is no order as to costs in respect of the Plaintiff/Applicant’s attendances
and appearances for the hearing on 29 July 2026, and all other costs are
reserved for determination at the subsequent hearing of the application for
summary judgment.
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Judgment
___________________________________________________________________
J Mitchell AJ
[1] Court orders are final. But finality is not a straitjacket. If a court grants an order
in a party’s absence but that party later appears, a court can recall the order.
That power has a long pedigree as a common law exception to functus officio.
It now finds constitutional foothold in the inherent power that the Constitution
confers on courts to protect and regulate their process.
[2] Ms Sekgobela bought a car from Nedbank. She agreed to pay in instalments.
She fell behind. She went to a debt counsellor. Nedbank terminated debt
review under section 86(10) of the National Credit Act. Nedbank sued to get
the car back and to recover any shortfall between what Ms Sekgobela owes
and what the car gets at auction. Ms Sekgobela filed a plea. Nedbank applied
for summary judgment. Ms Sekgobela did not file an answering affidavit.
Nedbank set down its application for summary judgment on the unopposed
summary judgment roll on 27 July 2026.
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[3] Ms Sekgobela was not in court when Nedbank’s application for summary
judgment was called on 27 July 2026. I asked counsel appearing for Nedbank
about service. Nedbank’s attorneys emailed the application to what appeared
to be the email address of Ms Sekgobela’s debt counsellor. After the tea
adjournment, Nedbank’s counsel confirmed that Ms Sekgobela gave a power
of attorney to her debt counsellor, and I was satisfied that the debt counsellor’s
authority under it covered receipt of legal process. At about 11h30, I granted
an order along the lines of the relief that Nedbank asked for in its application.
After hearing a few more unopposed applications, I adjourned.
[4] At about 12h00, and while I was in chambers, my registrar told me that
Ms Sekgobela was in court. Through my registrar, I emailed the parties at
about 12h30 and said, amongst other things, “[t]h e matter is accordingly
recalled and will be heard at 12h00 on 29 July 2026” and “[a]t that hearing, the
parties are directed to address the Court on whether the Court has the power
to recall the order that was made on 27 July 2026 and, if so, what order should
now be made, including in respect of costs.”
[5] My understanding of the practice in this Division is that a court may recall an
order granted in a party’s absence if the absent party appears before the Court
has risen. And my understanding of the mechanics of the opposed and
unopposed courts in this Div ision (including the summary judgment court,
which hears both unopposed and opposed applications) is that the Court (and
the allocated judge) sits for the whole week. So my preliminary view was that
I could recall the order.
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[6] Further research confirmed that view. The Appellate Division gives a clear
answer in De Wet v Western Bank Limited 1979 (2) SA 1031 (A) at 1045B-H.
The Appellate Division was not writing from a clean slate. It cited an impressive
archaeology of the power —dating back to Voet and, for good measure, the
Emperor Antoninus (the Roman Emperor from, well, a very long time ago).
According to the Appellate Division, Voet’s view was that “if one who ought to
attend does not appear, and thus is declared at the request of his opponent to
have defaulted, but presently arrives while the Judge is still sitting on the
Bench, and is ready to plead or otherwise carry out his duties, there is no need
for further purgation of his default ,” cited in De Wet , above, at 1045E-F.
Emperor Antoninus put it more colourfully, allowing for “help … where clear
justice calls for it” and so if “ a person summonsed has not answered, and
thereon the usual declaration has been made, but he has straightway attended
while you still sit on the Bench, he may be deemed to have defaulted not of
his own carelessness, but because he did not fully catch the voice of the crier,”
cited in De Wet, above, at 1045F-H.
[7] More recently, the Supreme Court of Appeal confirmed that there is an
“exceptional procedure under the common law in terms of which a court may
recall its order immediately after having given it, or within a reasonable time
thereof, either meru motu or on the application of a party, which need not be
a formal application”: Colyn v Tiger Food Industries t/a Meadow Feed Mills
(Cape) 2003 (6) SA 1 (SCA) at para 4.
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[8] Nedbank filed heads of argument arguing that it is “evident” that “none of the
exceptions to the rule that a court, after the granting of an order and becoming
functus officio, allows for a court to recall the order, simply because a
defendant, belatedly, seeks to oppose the application, especially when it had
ample time to do so.” From that premise, Nedbank argued that I was functus
and was “not in a position to recall the order”.
[9] Shortly after Nedbank filed its heads of argument, I drew the parties’ attention
to De Wet and Colyn in an email from my registrar.
[10] Ms Sekgobela was unrepresented at the recalled hearing on 29 July 2026.
She explained she was late for the previous hearing because she was caring
for her sick son. She asked for ten days to file an affidavit opposing Nedbank’s
application for summary judgment.
[11] Mr McTurk, who appeared for Nedbank, quite properly conceded that, based
on De Wet and Colyn, I can recall the order. And quite properly, he took no
issue with Ms Sekgobela’s explanation for why she was late for the previous
hearing. Mr McTurk nonetheless argued that I should decline to exercise my
discretion to recall the order because Ms Sekgobela’s p rospects of opposing
summary judgment are, as Nedbank sees it, weak and so recalling the order
makes no difference. But the Constitutional Court has rejected just that sort of
“anathema” no-difference reasoning when it comes to procedural fairness and
hearing the other side: Psychological Society of South Africa v Qwelane 2017
JDR 0062 (CC) at paras 32-9.
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[12] The concession that I can recall the order was right. De Wet and Colyn are
clear on the point. De Wet shows that the power comes with considerable
pedigree in the old authorities. And while we have long done away with the
“crier” from Roman times, De Wet, above, at 1045F-H, we have not done away
with courts’ inherent discretion to regulate and protect their process.
[13] None of this hands litigants—even unrepresented litigants—a permission slip
to wilfully skip court dates. And none of this means that Nedbank was not
within its rights to ask for an order in Ms Sekgobela’s absence. Banks have
rights too. But it does mean that I can come to Ms Sekgobela’s aid after she
made a diligent, if late, effort to appear at the hearing—all the more so when
she is unrepresented and all the more so in a type of case where consumer
protection looms large.
[14] There is no clear answer for when the power to recall stops and other, more
stringent remedies like rescission or reconsideration start. If the old rule is that
a court can recall an order “ while the Judge is still sitting”, De Wet, above, at
1045E-F, or “while you still sit on the Bench”, De Wet, above, at 1045F-H, then
the modern equivalent is probably at any time during the motion court week.
That also aligns, in my view, with the Supreme Court of Appeal’s relatively
open-ended timing of “immediately after having given it, or within a reasonable
time thereof”, Colyn, above, at para 14. Ms Sekgobela was in court within
about an hour of the order, so she falls comfortabl y on the right side of the
line.
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[15] As for costs, it seems best to reserve the costs of (and relating to) the hearing
on 27 July 2026 for when Nedbank’s application for summary judgment next
comes on the roll. Nedbank is not entitled to costs of (and relating to) the
hearing on 29 July 2026. Its position on the law at that hearing was a
climbdown from its heads of argument. A bit of pra gmatism could have
avoided the need for any debate about recalling the order in the first place.
That said, Nedbank undertook, at my request, not to take any steps to enforce
the order pending this judgment, which was a redeeming bit of good corporate
citizenship.
[16] I make this order:
1. The order dated 27 July 2026 under case number 2026-005412 is
recalled.
2. The application for summary judgment is postponed sine die.
3. The Respondent/Defendant is granted leave to file an affidavit
opposing the application for summary judgment by 17h00 on
14 August 2026.
4. There is no order as to costs in respect of the Plaintiff/Applicant’s
attendances and appearances for the hearing on 29 July 2026, and
all other costs are reserved for determination at the subsequent
hearing of the application for summary judgment.
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__________________
J Mitchell AJ
Acting Judge of the Gauteng Division, Johannesburg
Date of hearing: 29 July 2026
Date of judgment: 30 July 2026
For the Applicant/Plaintiff: S McTurk instructed by UMS
Attorneys
For the Respondent/Defendant: Unrepresented