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document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 984/2022
In the matter between:
BRAVOPRO T/A MOOKETSI SCRAPYARD APPLICANT
And
MADUMI MOSES SIVHULA FIRST RESPONDENT
SOUTPANSBERG AUTO BODY REPAIRS SECOND RESPONDENT
_______ _____
JUDGEMENT
(1)
(2)
(3)
REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE ........... . SIGNATURE: ........... . .
KGANYAGO J
[1] The applicant (Bravopro) was the respondent in the ma in application brought
by the first respondent (Madumi). On 15th October 2021 Madumi was involved
in motor vehicle accident . Bravopro towed Madumi’s vehicle to its premises.
Madumi had taken an insurance cover for the vehi cle with Old Mutual .
Bravopro was not the authorised service provider to tow vehicles insured by
Old Mutual which were involved in accidents. Old mutual requested Bravopro
to release Madumi’s ve hicle to its designated representatives. Bravopro
rendered an invoice to Old Mutual in the amount of R23 241.50 which Old
Mutual had to pay before the vehicle could be released.
[2] Old Mutual was of the view that the amount which Bravopro had charged was
exorbitant, and that according to the industry norms an amount of R7 920.05
constituted a fair and reasonable amount in respect of the towing and other
related fees. Old Mutual paid Bravopro the amount of R7 920.05 and tendered
to set security in the amount R15 321.45 in respect of the balance of
Bravopro’s claim. Old Mutual paid the amount it had tendered as security into
its attorney’s trust account and requested the release of the vehicle. Bravopro
refused to release the vehicle if the full amount of the invoice was not paid.
That led to Madumi instituting an application against Bravopro seeking orders
that it release his vehicle to Old Mutual’s nominated representative within 24
hours of service of the order.
[3] Bravopro opposed Madumi’s application. In its answering affidavit Bravopro
stated that it had released Madumi’s vehicle on 4th November 2021 after Old
Mutual had paid all its outstanding costs relating to the motor vehicle.
Bravopro denied that Madumi’s vehicle was still in its possession.
[4] The matter came before Makweya AJ and both parties through their respective
legal representatives attended the hearing and argued the matter. Makweya
AJ found in favour of Madumi . In arriving at her conclusion , she found that
Madumi and Old Mutual had paid Bravopro for the services it had rendered for
towing and storage costs of his vehicle. That despite payment Bravopro failed
to return and release the vehicle back to Ma dumi. She ordered that Bravopro
release Madumi’s vehicle to her and Old Mutual.
[5] Bravopro has now brought an application in terms of common law seeking an
order to rescind and/or set aside the court order granted by Makweya AJ. The
grounds upon which Bravopro is relying upon are that there are new
documents that came to light and that had they been available at trial, they
could have entitled it to judgment in its favour. The reasons for judgment been
against it are that it had failed to convince the court of first instant as to whom
the motor vehicle was released . That the new documents it is referring to
shows a quotation in which Old Mutual approved the second respondent
(Soutpansberg Auto Body Repairs) to repair the vehicle. A further document is
a client satisfaction clearance signed by Madumi’s insurer, which suggest that
the vehicle wa s repaired and released to Madumi on 3 rd February 2022 .
Bravopro conten ds that it had released the vehicle during November 2021
and therefore the vehicle could not have been in its possession at the time of
the institution of the legal proceedings against it.
[6] Madumi and Soutpan sberg initially both opposed Bravopro application by
raising points of law in terms o f Rule (6)(5)(d)( iii) of the Uniform Rules of
Court. In their points of law, they have submitted that what Madumi has raised
was that the common denominator between Rule 31(2)(b), 31(5), 42(1)(a) and
the common law was that the court is empowered to rescind its judgment and
orders given in default of appearance of a party. In the current matter the
order that forms the subject matter of the rescission of application was that it
was not given in default of appearance of Bravopro , and as such Bravopro
had no locus standi to apply for the rescission of the order. Later
Soutpansberg filed a notice to abide and was no longer wishing to oppose
Bravopro’s application.
[7] Before this court counsel for the applicant argued that in the cou rt of first
instance the main issue to be determined was whether Bravopro was in
possession of the vehicle or whether it released the vehicle to Madumi or
service provider /agent of Madumi, which are interlinked proving either one
would result in the judgment in favour of Bravopro. Bravopro could not provide
the court of first instance with any documentary evidence to prove that it was
not in possession of the vehicle or that the vehicle was released to the service
provider/agent of Madumi. Bravopro has discovered new documents to prove
that the vehicle was not in its possession but in possession of the service
provider/agent of Old Mutual . The documents are approved quotation and
client satisfaction clearance.
[8] Counsel for Bravopro further submitted that the new documents show that
during the litigation process which was instituted by Madumi it was not in
possession of the motor vehicle. The motor vehicle was in the possession of
Soutpansberg which was the service provider /agent of Old Mutual before the
legal proceedings could be instituted. Bravopro had informed Madumi that it
was not in possession of the ve hicle. It was not the fault of Bravopro that the
documents were not produced during trial as they were in possession of
Soutpansberg. Had the documents formed part of the trial it could have
altered the judgment in favour of Bravopro as there were sufficient
documentary evidence which shows that that Bravopro was not in possession
of the vehicle.
[9] Madumi was in default and there w ere no submissions made on his behalf.
Counsel for Soutpansberg submitted that even though they initially filed points
of law , they have now filed a notice to abide and have got nothing to add
further.
[10] It is common cause that this is not a rescission of a default judgment or order.
Both parties were in attenda nce before Makweya AJ and the matter was
properly argued and thereafter a judgment was delivered based on what was
argued before her. Bravopro is dissatisfied with the judgment and order of the
court of first instance and has brought an application for rescission in terms of
common law submitting that it had discovered new documents which had they
been placed before the court of first instance , judgment would have been
granted in its favour. What this court must determine is whether Bravopro had
satisfied the requirements for recission of the judgment and order of the court
of first instance in terms of common law.
[11] It is trite that at common law a judgment may rescinded on the grounds of
fraud; justus error; in certain exceptional circumstances when new documents
have been discovered ; where judgment had been granted by default ; and in
the absence between the parties of a valid agreement to support the judgment
on the grounds of justus error.
[12] As I have already pointed out above that this was not a default judgment or
order, the general rule is that a court has no power to set aside or alter its own
final judgment/order as opposed to an interim judgment/order. This is based
on the fact that once a court pronounce a final judgment it become s functus
officio and its au thority over the subject -matter ceased, and also that it is in
the public interest that litigation be brought to finality. (See Freedom
Stationary v Hassam 1) Unless it was a default judgment and order, ordinarily
a single judge will not have the power to set aside a final judgment of another
single judge whe re the matter has been properly adju dicated, and the
judgment was given on merits. To rescind a judgment given on merits the test
is very stringent.
[13] In Fraai Uitzicht 1798 Farm (Pty) Limited v Mc Cullough and Others 2 Nicholls
JA said:
“What then remains is the question of justus error and whether the appellant had shown an
entitlement to rescission of the order as a result of the missing documents. The general
principle enunciated in Childerley is that non-fraudulent misrepresentation is not a ground fo r
setting aside a judgment and justus error can be a ground only in rare and exceptional
circumstances. After considering Roman Dutch authorities, De Villiers JP concluded:
‘We arrive at this position then that so far as justus error is concerned default judgments may
in some cases be set aside under the Roman -Dutch Law on the ground o f justus error, and
that judgments , whether default or not may be set aside in the seven exceptional cases
above-mentioned on the ground of instrumentum noviter repertum, though evidently some of
those are nowadays obsolete and in applicable… There may be other exceptional
circumstances. But I must say that I know of no such further general application of the
doctrine of justus error to the judgments as would entitle the van quished party to bring an
action to set aside a judgment only on the ground that the Court gave a judgment in error,
even if such error was just and induced by a non -fraudulent misrepresentation made by t he
even if such error was just and induced by a non -fraudulent misrepresentation made by t he
other party to the case’”
1 2019 (4) SA 459 (SCA) at 465A-C
2 [2020] ZASCA 60 at para 20
[14] Bravopro has submitted that the alleged newly discovered documents w ere
obtained through the consent of Soutpansberg. Part of discovered documents
is a quotation which Bravopro submit it was approved by Old Mutual
authorizing Soutpansberg to repair Madumi’s vehicle. Further that there is a
satisfaction clearance form issued and signed by Madumi’s insurer which
suggest that the mo tor vehicle was released from Soutpansberg to Madumi
on 3 rd February 2022. It is Bravo pro’s contention that the motor vehicle was
released from its custody during November 2021 and there was no slightes t
fault on its part that the documents were not part of the trial proceedings. It
had no knowledge of the working relationship of Soutpansberg which could
have enabled it to obtain the said documents.
[15] Bravopro did not explain if it did not know the working relatio nship of
Soutpansberg, how it came about that it became aware that the said
documents were in possession of Soutpansberg. Madumi’s motor vehicle has
been in the custody of Bra vopro from the date it has been towed from the
scene of the accident. The condition for the said motor vehicle to be released
from the custody of Bravopro was for either Madumi or Old Mutual to pa y the
amount of money which Bravopro was demanding as storage and towing
fees.
[16] It is Bravopro’ version that Old Mutual had paid the outstanding amount due to
it in full, and that the ve hicle was released during November 2021 . It is
Bravopro who had released the vehicle and should know to whom the motor
vehicle was released to. What is needed from Bravopro is to show to whom
the vehicle was released to, and that d o not require any document from
Soutpansberg. It should be facts known to Bravopro . There should be some
release papers which the person who had collected the motor vehicle should
have signed. Those documents are expected to be in the custody of
Bravopro. If no paper was signed when the ve hicle was released, Bravopro
should explain how it was released. These are the records which are
expected to be kept by Bravopro. Bravopro did not need the papers in
possession of Soutpansberg to pr oof that the vehicle was released from its
custody. Bravopro did not explain what happened to its own documents which
it should have generated to facilitate the release of Madumi’s motor vehicle
after payment of the required amount.
[17] With regard to the alleged client satisfaction clearance, it does not assist
Bravopro in that it was allegedly signed by Madu mi’s insurer and not by
Madumi. This does not prove that Madumi took possession of the vehicle. If
indeed the motor vehicle was repaired by Soutpansberg, when it was ready it
was supposed to be collected by Madumi or someone authorised by him.
When collecting the motor vehicle , he or the person he had authorized would
have been required to sign a release form . Bravopro has failed to attach a
single document t o prove that Madumi or any person authorised by him took
possession of the motor on 4 th November 2021 or 3 rd February 2022 . The
client satisfaction document is therefore of no significance to Bravopro’s case.
[18] The date on which Bravopro took possession of the vehicle as stated in
Madumi’s founding affidavit which Bravopro has conceded to in its answering
affidavit, was the 15th October 2021 when it towed it from the accident scene.
It is not in dispute that the accident occurred on 15th October 2021. According
to Bravopro, the quotation prepared by Soutpansberg dated 19th November
2021 shows that the quotation was approved and authorised Soutpansberg to
repair the vehicle. Therefore, the vehicle was in possession of Soutpansberg
as per the approved quotation.
[19] This quotation does not show whether it was sent to Old Mutual or First Assist.
It only shows that it was a new quotation issued to Madumi, and typed
approved on 19/11/2021, but do not show approved by whom . It does not
have the approved amount payable by the insur er and excess amount
payable by Madumi. If it was approved by either Old Mutual or First Assist, it
does not show when it was approved. It does have a stamp of either Old
Mutual or First Assist acknowledging receipt of it . This document does not
advance Bravopro’s case and is therefore of no significance to its case.
[20] The email which Bravopro relies on that Madumi’s vehicle was rele ased from
its custody on 4th November 2021 read as follows:
“Good Day
The following vehicle is currently standing at your premises. Would you please be so kind as
to process an invoice for the release fee in order for the vehicle to be collected as a matter of
urgency. Please note if there is storage to make the storage 48 hours in advance.
Vehicle make and model: ISUZU KB300D
Registration: F[...]
Insurer: Old Mutual
Claim number: 1[...]
Please make out the invoice to
First Assist Management
PO Box 9[...]
Norwood
2117
Vat 4[...]
Please attached one of the below documents for security reasons”.
[21] This email is from First A ssist to Bravopro. The plain reading of this email is
that Madumi’s motor vehicle was still at Bravopro premise as at the 4 th
November 2021. Bravopro was requested to prepare an invoice which should
be 48 hours in advance of storage. The email on its own do not prove that
Madumi’s vehicle has been released from Bravopro’s custody. This is
corroborated by the email of 30 th November 2021 from Caroline of Omis ure
when enquiring from Gopane whether the vehicle has been uplifted.
Nokuthula from First Assist responded to that email on 15th March 2022 by
stating that the vehicle has not been uplifted. As per the email from
Nokuthula, it cannot be correct that the vehicle was released to Madumi by
Soutpansberg on 3rd February 2022.
[22] It was therefore upon Bravopro to have proved that it had complied with the
request of First Assist by attaching the invoice, proof of payment by First
Assist/Old Mutual and its own release form of the motor vehicle duly signed
by the person who might have collected it from its premises and on which
date. Bravopro has failed to do so and therefore this email is of no
significance to Bravopro’s case.
[23] In my view, the documents that Bravopro h as attached as new documents
discovered do not ad vance its case. They therefore do not qualify as one of
those rare and exceptional circumstances where they justify as grounds to
rescind the judgment under common law . Bravopro has failed to show that if
these documents were avai lable at the time, the court of first instance would
have rendered a different judgment. Bravopro’s application stands to fail.
[24] In the result I make the following order:
24.1 The ap plicant’s application is dismissed and there is no order as to
costs.
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the applicant : Adv EP Kotswana
Instructed by : Motshekga MK Attorneys
Counsel for the first respondent : In default
Counsel foe the second respondent : A Rheeder
Instructed by : Pierre Krynauw Attorneys
Date heard : 30th July 2026
Electronically circulated on : 24th August 2026