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Introduction
[1] The applicant seeks urgent relief to stay the executio n of a default judgment
and to rescind the default judgment granted on 28 April 2026. The Applicant launched
a hybrid urgent application combining a rescission application and an interdict to stay
execution of the judgment on an urgent basis. The Applicant seeks costs against the
Respondent only if there is unsuccessful opposition, including costs for two counsel
on a punitive scale.
[2] The second respondent opposed the application and raised the preliminary
point of a lack of urgency. The Respondent seeks costs in the application.
Background
[3] The plaintiff is the respondent in this application. On 30 June 2022 the
respondent served summons on the State Attorney and the applicant. On 11 October
2024 the applicant’s defence was struck off, and on 20 April 2026 and 16 March 2026
it was served. On 20 April 2026 a default judgment against the applicant was granted.
[4] The applicant repeatedly failed to respond to requests for discovery and did not
oppose applications to compel or strike out their defence. Court orders were granted
unopposed as follows:
i. a compel order (July 2024),
ii. a strike out order (October 2024), and
iii. a default judgment (April 2026).
[5] The warrant of execution was served in July 2026, after which the applicant
launched the urgent application.
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Summary of Submissions
Arguments on Urgency
[6] The second respondent contends that the urgency is self -created due to the
applicant's prolonged inaction and failure to respond to legal processes for over 21
months. The Applicant argues that the matter is urgent because the Department's
assets are at ri sk of attachment and sale, which would harm its ability to provide
essential medical services.
[7] According to the applicant, the delays were due to missing/incomplete files
and the need to gather all relevant information, not due to negligence or wilful
default.
[8] The applicant's counsel confirmed in court that the State Attorney issued
instructions on 27 May 2026 to rescind the default judgment after the applicant was
served with the court order on 20 May 2026. The service of the court order on the
applicant on 20 May was confirmed by the respondent.
[9] Applicant argued that the service of the writ of execution by the first respondent
on 7 July 2026 triggered the urgent application which was filed on 17 July 2026.
[10] The second respondent’s counsel argued that the application must be struck
off for lack of urgency because this application is conflated with that of relief sought
on rescission and with that of a stay of execution. The counsel for the applicant argued
that the hybrid approach was chosen to avoid piecemeal litigation and unnecessary
legal costs, as a rescission alone would not stop execution.
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[11] The second respondent requests that the application be struck from the roll for
lack of urgency, or dismissed on the merits, with costs awarded on an attorney and
client scale, including costs for two counsel.
Arguments on Rescission
[12] The second respondent requests that the application be struck from the roll
for lack of urgency, or dismissed on the merits, with costs awarded on an attorney
and client scale, including costs for two counsel.
[13] The applicant seeks rescission under common law, which requires a
satisfactory explanation for default and a bona fide defence with prospects of success.
[14] The second respondent argues that the applicant has not provided a
reasonable explanation for the default and instead blames the attorneys, which is not
a valid excuse under the law. Counsel argued that the application was in bad faith
because the respondent did not take any action for 4 years and , even during the
application, the applicant still did not provide the medical records which were sought
before the default Order was granted. The applicant also failed to demonstrate a bona
fide defence or exceptional circumstances warranting rescission. The applicant argues
that this is not substantiated and that it has acted to protect the Department's interests.
[15] The applicant asserts it has a bona fide defence to the underlying claim,
referencing its previously filed plea , the discovery affidavit, and the conduct of its
medical personnel.
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[16] The applicant denies any wilful or negligent conduct by its officials, arguing that
any failures were due to the attorneys' actions and should not be imputed to the
Department. Further, that there is no evidence that the Department's officials were
aware of the proceedings leading to the default judgment.
[17] The applicant disputes the respondent's claim that lack of external medical
expert evidence means there is no defence, arguing that internal medical staff are
qualified to provide expert opinion. The applicant references legal standards for
rescission, a reasonable explanation for default and a bona fide defence with
prospects of success.
Evidence on Stay of Execution
[18] The second respondent asserts that the applicant has not met the legal test for
a stay of execution, as there is no evidence of injustice or exceptional circumstances.
The enforcement of the judgment is presented as a matter of access to justice for the
respondent. The respondent argued that the stay of execution is moot since the
rescission application is before the court. The applicant counters this with the
argument that a rescission application does not automatically suspend execution; only
a court order can do so.
[19] The applicant claims prejudice on the impact of this litigation on public funds,
but the second respondent argues that the applicant's own inaction and disregard for
court processes cannot justify relief , and further that the court is urged not to delay
justice for the victim (a minor child) due to the applicant's failures.
Issues for Determination
[20] It is apparent from the summary of arguments above that the court is called
upon to determine the issues as follows:
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(a) Urgency;
(b) Whether the filing of a rescission application automatically suspends the
execution of a judgment;
(c) Whether an application for a stay of execution becomes moot merely
because rescission proceedings are pending; and
(d) Whether the applicant makes out a case for a stay of execution.
Analysis
Urgency
[21] The court has the discretion to decide whether a matter is truly urgent and
whether to grant the relief sought . Luna Meubel Vervaardigers (Edms) Bpk v Makin
and Another 1 defines the rules for urgent court applications. This case established
that when a litigant bypasses standard court procedures to ask for an urgent hearing,
they must explicitly justify the degree of urgency and explain why normal procedures
won't provide substantial redress.
[22] In East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd 2 it was held
that:
“the delay in instituting proceedings is not, on its own, a ground for refusing to
regard the matter as urgent. A court is obliged to consider the circumstances
of the case and the explanation given. A crucial test for urgency is whether, if
the matter were to follow its normal course as laid down by the rules, an
applicant will be afforded substantial redress. If the applicant can be afforded
substantial redress in due course, the matter is not urgent.”
[23] The applicant has fully explained the efforts taken since 20 May 2026 to get
the matter set down for hearing and placed before the court . The delay in filing the
1 1977 (4) SA 135 (W) at 137.
2 2011 JDR 1832 (GSJ) para 8.
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application is not unreasonable , and in any event, the delay in getting the matter to
be heard was fully explained in the applicant’s founding affidavit. The applicant
further submitted that the application cannot wait to be heard in the normal course
because the execution of the applica nt’s property is imminent. This submission was
confirmed by the second respondent’s counsel. This submission accords with the
provisions of Rule 6(12) (b) which provides that the applicant's supporting affidavit
must “set forth explicitly the circumstances which it is averred render the matter urgent
and the reasons why the applicant claims that applicant could not be afforded
substantial redress at a hearing in due course.”
Rescission application
[24] The issue which arose in court under the above subject was whether the filing
of a rescission application automatically suspends the execution of a judgment , and
whether an application for a stay of execution becomes moot merely because
rescission proceedings are pending.
[25] It is so that the applicant conflated the relief for rescission and stay of execution.
The couching of prayers in two parts would have been convenient for the court,
however, that is just form that does not warrant striking out the applicant's case or
dismissal of the case as the respondents’ counsel argued.
[26] There is substance in the applicants' papers in that the court can adjudicate the
relief sought separately.
[27] Where an applicant combines a rescission application and an urgent application
to stay execution, the court is entitled to determine only the urgent interlocutory relief
and postpone the rescission application for hearing in the ordinary course. This
accords with the distinction between interim and final relief. The stay merely preserves
the status quo pending the adjudication of the rescission application. In South African
Broadcasting Corp Ltd v National Director of Public Prosecutions and Others , the
Broadcasting Corp Ltd v National Director of Public Prosecutions and Others , the
Constitutional Court discussed the court's inherent jurisdiction to regulate its own
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process3. Consequently, the existence of a pending rescission application does not
deprive the court of jurisdiction to determine the interlocutory stay application pending
the determination of the rescission proceedings.
[28] .The Respondent's contention that the application for a stay of execution has
become moot by virtue of the rescission application cannot be upheld. The relief
sought in the same applications is conceptually and legally distinct. A rescission
application is directed at setting aside the judgment, whereas a stay of execution
merely suspends its enforcement. The institution of rescission proceedings does not,
without more, suspend execution of the judgment or render an application for a stay
academic. On the contrary, the necessity for a stay arises precisely because execution
remains competent until the judgment is rescinded or a court orders otherwise.
[29] Accordingly, the court is not required to determine the rescission application
before considering whether execution should be stayed. It may exercise its inherent
jurisdiction under section 173 of the Constitution to regulate its own process by
adjudicating the urgent relief for suspending execution. The rescission application
remains alive and is determined later on its own merits.
Stay of Execution
[30] The applicant seeks a suspension of the execution order under Rule 45A and
the court's inherent powers, arguing that real and substantial justice requires it. The
true enquiry is whether real and substantial justice requires execution to be suspended
in the circumstances.
[31] Rule 45A confers a discretionary power upon the Court to suspend the
execution of a judgment where justice requires. That discretion must be exercised
judicially, having regard to all the relevant facts and the interests of both parties. The
Rule does not create a substantive right to a stay of execution.
3 South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1)
SACR 408 (CC) (2007 (1) SA 523; 2007 (2) BCLR 167; [2006] ZACC 15) at para 90.
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[32] The applicant seeking such relief bears the onus of demonstrating exceptional
circumstances or real prejudice warranting the suspension of execution. The mere
pendency of rescission proceedings is therefore not sufficient to render an application
for a stay of execution.
[33] Without requiring the court to determine, finally, the issue on its merits, it is clear
from the facts presented that the rescission application is not in good faith . The
application is brought merely to delay enforcement. Whether the application enjoys
reasonable prospects of success is not an issue to be determined in an urgent court.
[34] Although the execution would defeat or render nugatory the relief sought in the
rescission application, the prejudice to the second respondent outweighs the prejudice
to the applicant occasioned by delaying execution.
Costs
[35] The case number speaks volumes. The date of the Order to compel discovery
and the date of the Order sought to be varied tell a similar story. The history of this
matter tells a story of a litigant, in this case a government entity, which deliberately
ignored the plaintiff’s requests to discover , to better discover , as well as the court’s
orders.
[36] The defendant's Stalingrad approach cannot be ignored, given the history of
this matter and the nature of the claim. This is not just a commercial dispute involving
litigants who have financial resources to litigate for years. This is a claim on behalf of
a minor child who was found by the court to have suffered loss on 20 April 2028.
[37] During the arguments in court, counsel for the plaintiff argued that the applicant
has now located the medical records sought by the defendant's attorneys; however,
the records were not made available to the defence. The discovery affidavit prepared
by Mr Makamu on 31 August 2023 does not assist the applicant's case because the
deponent discovered the pleaded documents and nothing else.
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Heard : 04 August 2026
Delivered: 06 August 2026
(The judgment was handed down electronically by circulation to the parties’
representatives by email, by being uploaded to the CaseLines system of the
Mpumalanga Division, Mbombela main seat)
Appearances
For the Applicant:
Attorneys State Attorneys Office
Contacts 013 101 3722
Email: TMasete@justice.gov.za
Counsel for the Applicant: Mathibedi SC with Mr Masete
Contact
For the Second Respondents:
Attorney Ndubane Attorneys
Contact 012 001 7876
Counsel for the Respondent: Adv Rasenga with Adv Phala
Contact info@ndubaneattorneys.co.za