IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No : 2023- 101531
Date : 25.05.2026
In the matter between:
BJORKMAN, IVAN NEWELL First Applicant
HER MAJESTY’S GUESTHOUSE CC Second Applicant 10
and
ABSA BANK LIMITED Respondent
J U D G M E N T ( Postponement )
MOULTRIE, J: This is an opposed application for the
rescission of a summary judgment granted by Wanless J on
4 March 2024.
The rescission application was launched during April
2024, at which time the applicant s were represented by Mary 20
Jordan Attorneys. The answering affidavit was duly delivered
in May 2024, and a replying affidavit dated 5 June 2024 was
then delivered. The applicants ’ erstwhile attorney signed a
notice of withdrawal as attorney of record on 10 June 2024.
Subsequent to that, the matter was set down on the opposed
roll before me today for hearing.
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED
SIGNATURE : .............................
JUDGMENT (Ex Tempore )
2
After the respondent delivered heads of argument,
the first applicant delivered an affidavit which, it seems, was
intended to serve as heads of argument, and participated in
the preparation of the joint practi ce note during April 2026.
That document was filed after it was signed by the first
applicant on his own behalf and ostensibly also on behalf of
the second applicant, which is a close corporation. At that
stage, there was no suggestion that the matter would not be
ripe for hearing today.
The applicants are represented today by Mr JA 10
Krause, briefed by A Botha A ttorneys , who served a notice of
appointment on the respondent's attorneys by email on
Friday, 22 May 2026 . Mr Krause undertook to ensure that his
attorneys would duly file that notice of appointment by
uploading it onto the Court Online platform, and I expect he
will do so.
At the commencement of the hearing, Mr Krause
indicated that he had been briefed yesterday, that is , Sunday
25 May 2026, to apply from the b ar for a postponement of the
hearing. The grounds a re as follows. Firstly, that the first 20
applicant was ill and was barely coherent when he consulted
with A Botha A ttorneys last week (on either Wednesday or
Thursday – Mr Krause was not quite certain ). As such, it was
difficult for A Botha A ttorneys to obtain coherent instructions
from the first applicant. The second and main ground
JUDGMENT (Ex Tempore )
3
advanced by Mr Krause for the postponement is the
contention that the application for rescission, as prepared at
a time when the applicants were still represented by their
previous attorneys , ‘cannot succeed ’.
In my view, neither of the grounds advanced by Mr
Krause for the postponement is sustainable. It is simply not
a justification for a postponement for a party to say that, upon
briefing attorneys, those attorneys have advised them that
the case as currently presented cannot succeed , and that it
would be necessary to obtain further instructions for the 10
purposes of improving the case. While I am prepared to
accept that instructions could not be obtained for the
purposes of this hearing, that is irrelevant : even if such
instructions could have been given, an intention to improve
the case by means of the delivery of a supplementary
affidavit would simply not justify the postponement.
There are other reasons why the postponement
application is not sustainable. As I have indicated earlier , the
first applicant participated approximately a month ago in the
process of preparing the pre- hearing joint practi ce note, and 20
no indication was given at that time of his desire to appoint
an attorney.
Ms Mitchell, who appeared for the respondent,
informed me, as she was entitled to do given that this was an
application made from the b ar, that her attorneys had been
JUDGMENT (Ex Tempore )
4
informed by the first applicant of his illness at some point
earlier in 2026 , but that there had at no stage been any
suggestion of any desire to appoint attorneys to represent
him and the second applicant at the hearing. In fact , the
contrary intention appears from his participation in the
process of preparing the joint practi ce note.
Given the time period that had passed since the
withdrawal of Mary Jordan A ttorneys and the absence of any
indication that the applicant s had any desire to be
represented in these proceedings (and the first appl icant ’s 10
repeated statements in the papers serving before me that he
considered himself to be more informed than any legal
representative could be of the details of the matter ), it would
appear to me that the applicants had no intention whatsoever
of appointing attorneys . And that indicates that this
application for a postponement is simply a variation of the
proverbial ‘oldest trick in the book ’, played in order to avoid
the consequences of the admitted inadequacy of his case (cf.
Take & Save Trading CC v Standard Bank of SA Ltd 2004 (4)
SA 1 (SCA ) para 3; Magistrate Pangarker v Botha and 20
Another 2015 (1) SA 503 (SCA) ).
Ms Mitchell correctly submitted therefore that the
illness of the first applicant is not relevant to these
proceedings, and there is no reason given for the delay in
instructing attorneys.
JUDGMENT (Ex Tempore )
5
In addition, Ms Mitchell pointed out that A Botha
Attorneys had communicated with the respondents' attorneys
on Friday , 22 May 2026, i ntimating their intention to seek a
postponement of the matter , to which the respondents'
attorneys had replied indicating that should such a
postponement be sought , it would be appropriate and
necessary for a formal written application to be made. That,
of course, is the standard practi ce. Despite that specific
request from the respondent, no such application has been
forthcoming, and this is yet a further indication, in my view, 10
that the application for a postponement is not seriously
advanced and cannot be justified.
In the circumstances, the application for a
postponement is dismissed. Cost s will be cost s in the cause.
J U D G M E N T ( Merits )
MOULTRIE, J : This is an application for the rescission of
a summary judgment granted by my brother Wanless J on 4 20
March 2024. The applicants delivered papers in opposition
to the summary judgment application but failed to appear on
the date of the hearing.
In her written submissions , Ms Mitchell persuasively ,
and correctly in my view, argued that a rescission is not
available in the current matter in terms of Rule 32 because
JUDGMENT (Ex Tempore )
6
the summary judgment was not granted by default . The
remaining legal bases on which the rescission could
potentially be granted are thus twofold: w hile Rule 42(1)(a)
of the Uniform Rules of Court is s pecifically mentioned , the
rescission could potentially also be granted in terms of the
common law.
The requirements for rescission under Rule 42(1)(a )
are that the judgment should have been granted in the
absence of the applicant for rescission and that the order was
erroneously sought or erroneously granted. 10
Surprisingly it seems to me the question of what
constitutes “absence” for the purposes of R ule 42(1) (a)
appears to be the subject of some debate amongst our appeal
courts , as is m ost recently apparent from the judgment
handed down by a divided bench of the Supreme Court of
Appeal on Friday , 22 May 2026 in the matter of Kingdom of
Lesotho v Fraser Solar GmbH and Others (438/2024) [2026]
ZASCA 75 ( SCA) . However , I need not detain myself with
regard to the first requirement , as Ms Mitchell was prepared
(as am I ) to proceed on the assumption that the judgment in 20
this case was indeed granted in the “absence” of the
applicants for rescission as that concept is to be properly
understood for the purposes of R ule 42(1)(a).
That then leaves the question as to whether the
judgment was erroneously sought before Wanless J or
JUDGMENT (Ex Tempore )
7
erroneously granted by him. It is well -established that in
order to meet that requirement it must be shown that there
was some procedural error in the manner in which the matter
was considered. I use the term “procedural ” broadly here. In
the current instance, the hurdle facing the applicants for
rescission is that they have not alleged any such error in the
grant of the judgment by Wanless J based on the papers that
served before him. Rescission can therefore not be granted
in terms of rule 42(1)(a).
Moving then to a potential rescission in terms of the 10
common law , it is trite that three requirements must be met .
First , the applicant must show “sufficient cause ”, which is
often referred to as an absence of wilfulness in relation to
the failure to appear. Secondly , the application must be made
bona fide . Thirdly , there must be some prospect of success
in relation to the merits of the matter. Only if all three
requirements are established by an applicant for rescission
may rescission be granted at common law.
In this instance , the facts alleged to justify the absence
of the applicant s from court on the day that the summary 20
judgment was granted are, in summary , the following. The
deponent to the founding affidavit (the first applicant , Mr
Bjorkman ) indicates that he had personally prepared the
affidavit opposing summary judgment. After having delivered
it , Mr Bjorkman was informed by the respondents ’ then
JUDGMENT (Ex Tempore )
8
attorney that the affidavit (which was somewhat confusing, to
say the least) did not disclose any defence, and that the
respondents would therefore be pursuing their summary
judgment application.
It appears that Mr Bjorkman at that stage considered
that he should take some legal advice. However , he did not
instruct any attorney to come on record for him and the
second applicant. Instead, he spoke to an acquaintance, Mr
Summer ly , who has deposed to an affidavit in this matter. In
summary , Mr Summer ly alleges that he was informed by Mr 10
Bjorkman , and that he wrongly accepted , that the respondent
had agreed that it would not pursue a summary judgment
application and would await the delivery of a further
alternative affidavit that was correctly formatted and which
set out defences in relation to the claim of the then plaintiff
(i.e. the respondent in this application ).
Importantly, as I have already indicated Mr Summ erl y
accepts that that was in fact not the position and that Mr
Bjorkman was at all times aware: (i) that the respondent in
the rescission application was pursuing the summary 20
judgment ; (ii) that it had been set down for hearing before
Wanless J on 4 March 202 4; and (iii) that a properly -prepared
affidavit would have to be delivered prior to that date if it was
to be opposed. Although Mr Summ er ly claims that he was
informed that the hearing was scheduled for 18 March 2024,
JUDGMENT (Ex Tempore )
9
this was a clear error , and he accepts it to be so. And it was
an error which , in my view , did not create sufficient cause for
the absence of the first applicant himself from court on 4
March 2024 in circumstances where the notice of motion itself
indicates that the hearing would indeed take place on that
date. The application for rescission of judgment should fail
on this ground alone.
However , even if I am incorrect on the absence of
sufficient cause for the failure to appear , I am not satisfied
that the applicants have demonstrated the existence of a 10
bona fide defence to the claim advanced by the respondent,
which forms the basis of the summary judgm ent granted by
Wanless J. In considering this aspect it bears noting at the
outset that the applicants do not dispute the indebtedness to
the respondent in terms of the relevant agreements , and
furthermore that it is well -established in law that a
counterclaim holds no weight in a summary judgment
application in circumstances where that counterclaim is an
unliquidated one .
With that background, I move to consider the alleged 20
defences that are raised in the application for rescission.
The first is an allegation that the respondent wrongly failed
to consent to a subdivision of the property that forms the
security for the indebtedness that th is the subject matter of
its claim . The second is that the respondent misplaced the
JUDGMENT (Ex Tempore )
10
title deeds , and that there was a delay in the conclusion of
the loan.
Irrespective of whether the respondent ’s conduct in
relation to either of these two allegations is culpable or could
form the basis of any claim by the applicants (a matter on
which I express no view) , the fact is that both of those
allegations , which might potentially constitute the basis of
counterclaim s, do not in themselves constitute any defence
to the action that had been launched by the respondent , and
neither potential claim is a liquidated one . 10
In addition , Ms Mitchell submitted that such claims will
in any event have prescribed and that it is the respon dent ’s
intention to raise the question of prescription should such
claims be advanced. While I note that there is no indication
that either claim has subsequently been advanced by the
applicant s in any proceedings , I once again make no finding
in that regard , as it is not relevant.
In the circumstances , in addition to finding the absence
of sufficient cause for the failure to appear in March 2024, I
also find that the applicants have failed to establish any 20
prospects of successfully defen ding the claim that forms the
foundation of the judgment sought to be rescinded. The
rescission application therefore falls to be dismissed.
On the question of costs , I have considered the
submission of Ms Mitchell regarding the terms of the relevant
JUDGMENT (Ex Tempore )
11
loan agreement for the payment of costs on an attorney and
client scale. She very correctly conceded before me that it
is not necessarily the case that the provisions of that
agreement would apply to the defence of a rescission
application brought under the current circumstances.
Ultimately , I am not satisfied that this is a matter that would
justify the grant of costs on a punitive scale and consider that
costs should be granted on party and party scale including
the cost of counsel on scale “ B” given the nature of the
matter. 10
In the premised, I make the following order :
1. The application is dismissed.
2. The applicants are ordered , jointly and severally ,
to pay the respondent’s costs , including the costs
of counsel on scale “ B”.
MOULTRIE J
JUDGE OF THE HIGH COURT, JOHANNESBURG
Date heard and decided: 25 May 2026 20
For the Applicants (postponement only) : JA Krause , instructed by A
Botha Attorneys
For the Respondent: K Mit chell, instructed by Tim Du
Toit & Co Inc.