IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NO: HCA30/2025
{ 1) REPORT ABLE: ~NO
(2) OF INTEREST TO OTHER JUDGES:_.)'.Z/NO
{3) REVISED:ftS/ NO •
\°t\ oB\~
Date Signature
In the matter between:
MOTHAPO MOCHEKO EDWARD APPELLANT
AND
MATHIBEDI FRANK KGAROSE RESPONDENT
2
Delivered: 19 August 2026
This judgment was handed down electronically by circulation to the parties'
legal representatives by e-mail. The date and time for hand down of the
judgment is deemed to be 19 August 2026 at 16:00.
Date heard: 15 May 2026
Coram: Naude-Odendaal et Ngobeni Jl
JUDGMENT
NGOBENIJ
[1] This is an appeal against the judgment and order granted by the learned
Magistrate Mokgokong, of the Magistrates' Court Mankweng (court a quo)
on 25 March 2024. The court a quo dismissed the application for
rescission of the judgment that was granted against the appellant on 06
October 2022, under case number 552/2021. This appeal is against the
decision of the court a quo for declining to rescind the order that it
granted against the appellant on 06 October 2022 .
[2] The order was for damages arising from the motor vehicle accident that
took place on 23 October 2021. The brief facts of this matter are that
there was allegedly an accident that took place on 23 October 2021
3
between the motor vehicles belonging to or driven by the plaintiff and the
defendant. In the main action the appellant is the defendant, whereas the
plaintiff is the respondent in this appeal. The respondent issued summons
against the appellant for damages allegedly incurred as a result of the
motor vehicle accident that was mentioned. The are two claims in the
summons, comprising of parts A and B.
[3] The appellant after receiving the summons entered a notice of intention
to defend which was challenged by the respondent on the basis that it did
not comply with rule 13(3)(a)(iii) of the Rules Regulating the Conduct of
the Proceedings of the Magistrates' Courts of South Africa (Magistrates'
Courts rules). It was not specifically stated in the notice of the respondent
as to what part the appellant did not comply with, but be that as it may,
that notice of intention to defend was withdrawn, and another one was
subsequently filed, dated 09 February 2022.
[ 4] A notice of bar dated 16 March 2022, which doesn't bear the stamp of the
clerk of the court was as it appears from paginated page 22 of the bundle
titled 'INDEX-COURT A QUO BUNDLE' was e-mailed to the e-mail address
bearing the names of the legal representative of the appellant . The date
on which the said e-mail was sent as it appears in the cont ents show that
it was sent on 17 March 2022 at 12h40.
4
[SJ On 25 March 2022 the appellant filed a notice of exception, as it appears
from the stamp of the clerk of the court. According to the respondent the
period for the appellant to file its plea after being barred expired on 24
March 2022. That simply means that the notice of exception was filed one
day late after the due date of the plea. The argument by the appellant is
that had the court a quo known that an exception was filed one day after
the expiry of the five days bar, the court a quo would not have granted
the judgment in default on 06 October 2022. The judgment was therefore
according to the appellant granted by error.
[6] This court has to firstly deal with the condonation application as the
appeal was filed out of time, because prayer 1 of the notice of appeal is
for condonation of the late filing of the appeal. Condonation is not a mere
formality, as it requires a full and acceptable explanation for all periods of
delay 1 . In Melane v Santam Insurance Co Ltd2 , the court on page 532
paragraphs C-E, said the following in dealing with a condonation
application:
"In deciding whether sufficient cause has been shown , the basic principle
is that the court has a discretion, to be exercised Judicially upon a
consideration of all the facts, and in essence it is a matter of fairness to
1 P.C. v Minister of Safety and Constitutional Development and Another (20 13/33619) [2024] ZAGPJHC 1165 ( 19
Novem ber 2024), Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (5) BCLR 465 (CC) (30 March
2000), Chetty v Law Society Transvaal 1985(2) SA 756 (A).
2 1962 (4) SA 53 1 (A).
5
both sides. Among the facts usually relevant are the degree of lateness,
the explanation therefore, the prospects of success and the importance of
the case. Ordinarily these facts are interrelated, they are not individually
decisive, save of course that if there are no prospects of success there
would be no point in granting condonation. Any attempt to formulate a
rule of thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation may help to compensate
prospects which are not strong. Or the importance of the issue and strong
prospects of success may tend to compensate for a long delay . And the
respondent 's inte rests in finality must not be overlooked "
[7] It was aptly put in National Union of Mineworkers v Council for Mineral
Technology 3 and Collett v Commission for Conciliation , Mediation and
Arbitration and Others 4 that if there is no reasonable explanation for the
delay, the prospects of success are immaterial and without good
prospects of success, no matter how good the explanation for the delay ,
an application for condonation should be refused.
[8] The explanation by the appellant of the delay in noting the appeal is that
the candidate attorney filed it at the Magistrates ' Court Mankweng instead
of the High Court. There is an annexure attached to this application titled
3 [1999) 3 BLLR 209 (LAC) .
4 [20 14) 6 BLLR 523 (LAC).
6
'MOT4' which bears the stamp of the said Magistrates' Court. Annexure
'MOT6' to this application is the receipt issued by the clerk of the
court,Mankweng, dated 26 June 2024 for the amount of Rl 000-00 for
case number 552/2021. It is evident from that annexure that an amount
for security on appeal was paid to the clerk of the court in Mankweng.
[9] If this court for a moment accepts that a further delay after the lapse of
the 19-day period of filing of the appeal was that the notice was filed at
the wrong court, are there prospects that the appeal will succeed, as
clearly required in the National Union of Mineworkers and Collet cases
quoted above. The appellant in his view believes that because his
exception was filed one day out of time, then the default judgment was
granted by mistake and therefore should be set aside on that basis.
[10] The court a quo clearly clarified that aspect in its reply to request for
reasons dated 25 April 2024 and that judgment was rightly granted after
the expiry of the period of bar, and therefore there was no iustus error,
and I fully agree with that reasoning of the court a quo, and the aspect of
iustus error raised by the appellant was rightly rejected by the court a
quo. However, this court on the issue of the delay cannot ignore the fact
that the notice of appeal was filed at the wrong court at some stage.
[ 11] This matter arose from a collision of cars. To determine fault based on
negligence under those circumstances might be a value judgment that
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would depend on evidential material presented that must be assessed.
After that assessment, judgment may go in favour of any of the parties.
Therefore, the issue of prospects of success in favour of the appellant
cannot be ruled out. In the result the condonation application must
succeed.
[12] The next issue that this court has to deal with is as to whether the court a
quo rightly dismissed the rescission of judgment application that was
brought by the appellant or not. In the Magistrates' Court, the rescission
application is governed by provisions of section 36 of the Magistrates'
Courts Act 32 of 1944 (Act 32 of 1944) and Magistrates' Court rule 49. I
have already rejected the argument by the appellant that the judgment
was granted by error, and therefore the provisions of section 36 of Act 32
of 1944 do not find application.
[13] It is clear from the court record of the court a quo that the application for
rescission of judgment was not brought within 20 days as stipulated in
Magistrates ' Court rule 49(1). The application of the appellant for
rescission of judgment was premised on the fact that it was granted by
error, the contention that the court a quo rightly dismissed. The issue
pertaining to the merits of the case were never placed before the court. I
do take note of the fact that the appellant did not plead to the particulars
of claim because he raised an exception.
8
14] In rescission of judgment applications, it is generally accepted that at
least an applicant will state what his or her defence would be on the
merits so that the court can determine the prospects of success. That was
succinctly stated in Colyn v Tiger Food Industries Ltd t/a Meadow Feed
Mills (Cape) 5 on paragraph 11 where the following was stated:
" ... the courts generally expect an applicant to show good cause (a) by
giving a reasonable explanation of his default, (b) by showing that his
application is made bona fide, and (c) by showing that he has a bona fide
defence to the plaintiff's claim which prima facie has some prospect of
success"
[15] In the case at hand the fact that the argument of the appellant was
restricted to the fact that the judgment was granted by error, confined
the court a quo to deal just with that aspect only and that is clear from
the reasons that were provided by the court a quo. Litigation must be
brought before courts and concluded so that people involved can go on
with their lives. Parties usually depend on legal advice given to them by
their legal representatives.
[16] The parties to litigation are usually not responsible for the drafting
papers, because often, they don't have knowledge of drafting court
5 2003 (6) SA 1 (SCA).
9
papers. If the very professionals who are responsible to carry out their
instructions do not carry that mandate precisely, the clients are the ones
who suffer because of cases that do not end. An example of that in this
case is that an appeal was initially lodged in the Magistrates' Court,
despite the fact that the heading of the notice of appeal clearly shows
that the case had to be heard in the High Court, which just shows
ignorance. These are unnecessary delays that make cases to drag for
long periods of time unnecessarily, with clients suffering financially and
emotionally because of cases that do not end .
[17] From the explanation proffered by the appellant the court must determine
as to whether he was in wilful default or not by not attending court on the
day that the default judgment was granted. The appellant states that
there was a breakdown of communication between him and his legal
representative. I cannot therefore say that he was in wilful default . This
court looks beyond the technicalities that are involved on how the case
was dealt with and will give clear directions so that the case can move
towards finality. Finalisation of cases is a concern for the courts as clearly
voiced out by the Constitutional Court by saying the following:
"Like all things in life, like the best of times and the worst of times ,
litigation must, at some point, come to an end. ... for the principles of
legality and finality of judgments are the oxygen without which the rule of
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law languishes, suffocates and perishes 6 ". The quoted extract is
appropriate in this case as direction must be given to avoid that this
matter goes back and forth between the courts without clear direction.
[18] The court a quo did not deal with the merits of this case. The case must
at some stage be fully ventilated before the court so that finality can be
reached .
[19] In the result the following order is made:
(i) the appeal is upheld,
(ii) the order of the court a quo dated 25 March 2024 is set aside,
and replaced with the following order: "Application for rescission
is hereby granted",
(iii) the matter is referred back to the court a quo to continue in
terms of Magistrates' Court rule 19 (Exceptions and applications
to strike out), and the time periods as stated in the said rule
must be adhered to after service of this order to the parties,
(iv) each party to bear its own costs.
6 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corr uption and Fraud in the
Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28; 2021 (I I) BCLR 1263 (CC) (17
September 2021 ).
I Agree
Appearances
Counsel for the Appellant:
Instructed by:
Counsel for the Respondents:
Date of hearing:
Date of judgment:
11
JUDGE OF THE HIGH COURT
OF THE HIGH COURT
Adv . A.T. Raselebana
Mmakola Matsimela Attorneys
No appearances
15 May 2026
19 August 2026