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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 091024 /202 3
DATE : 26 .08.2026
In the matter between
LETHUBUHLE ND AYI Applicant
and
NEDBANK LIMITED Respondent
J U D G M E N T EX TEMPORE
WILSON J: The applicant, Ms Nd ayi, seeks to rescind a
judgment granted by my sister Justice Maier -Frawley on 13
June 2024. That judgement ordered Ms Nd ayi to pay the
sum of R921 000 in respect of a mortgage loan agreement
which enable d the purchase of her home at Erf 3[...] Protea
Glen, Exte nsion 44. It also ordered her to pay R231 000 in
respect of a personal loan agreement she had concluded
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES : NO
(3) REVISED
SIGNATURE DATE: 26 August 2026
with the respondent , Nedbank.
It is trite that a rescission may only be granted where
good cause has been made out. The good cause that
Mis s Nd ayi relies upon in this application is that she was
absent without being in wilful default when the order was
granted and that she has a bona fide defence to the main
application.
A superficial perusal of the paper s shows that
Mis s Nd ayi was in fact present whe n the judgment was
granted against her. Her complaint is not that she was
absent or in default of appearance, but that she was never
given an opportunity to address the court and was merely
informed, she says, that judgment was granted by default
because no opposing papers had been filed. She said that
she wanted to get a chance to obtain a legal representative
but that she was denied that right.
She also complains that she was not given an
interpreter and was lost amid legal jargon that she found
hard t o understand. As sympathetic as I am to a lay litigant
in those circumstances, the complaints advanced in the
founding affidavit are complaints that may properly be taken
up on appeal. They are not complaints that ground a
rescission application .
There are of course other bases of rescission , such
as common mistake, fraud or justus error which may result
in the rescission of an order granted in the presence of the
party seeking to rescind it, but none of those grounds are
relied upon here. I also find i t difficult to accept , on the
papers , that the applicant was not heard by Justice Maier -
Frawley , since the operation of the order Justice Maier -
Frawley granted was suspended for two months. That seems
to me to be an indication that Justice Maier -Frawley heard
from the applicant and decided that the appropriate order ,
in the circumstances , was to grant the order subject to a
two -month stay in order to afford the applicant a breathing
space to try and make good on her arrears.
Whether Justice Maier -Frawley 's approach in the
circumstances was correct is not an issue before me. It is
an issue that would have to be raised by way of appeal.
Even if the applicant was absent, and a rescission
application was appropriate, it is plainly the case that the
Ms. Ndayi’s performance under both the finance agreements
she had with Nedbank is incapable of rehabilitation.
There is , in my view , no prospect that the mortgage
debt may ye t be paid, and nothing on the papers to
convince me that Justice Maier -Frawley could not ha ve
been satisfied that execution against Ms. Ndayi’s home was
proportionate. Nor is there anything on the papers that
convinces me that execution would be disproportionate now.
Of course, there is always the prospect that the applicant
will rehabilitate her performance under the mortgage loan
agreement. In that event, the provisions of Section 129 of
the National Credit Act 34 of 2005 will result in the
reinstatement of the agreement, and Justice Maier -
Frawley 's order will fall by the wayside in any even t.
All of that said, however, there is no basis, for the
reasons I have given, on which the order can be rescinded.
At the outset of the hearing before me, Mr Nemakula, who
appeared for the applicant, asked for a postponement in
order to pursue an application for leave to file a further
affidavit in this matter, which dealt with whether or not the
reserve price Justice Maier -Frawley had set was
appropriate. In light of the negligible prospects of success
in the rescission application, in light of the a ffidavit's failure
to deal with the core of the case made on rescission, and in
light of the fact that it is nonetheless open to Ms. Ndayi to
bring an application to vary the reserve price, the
postponement application cannot succeed.
In a case like this, I do not think it is appropriate to
award costs. The applicant seeks to maintain access to her
home. I readily appreciate the difficulties she has had in
servicing her loan agreement. I do not think anybody is
served by mulc ting her in yet more costs, which can only
worsen her financial position. She was, in principle,
entitled to approach me for relief . The fact is that she is
not entitled to the relief, but in these circumstances, where
her access to her home is at stake, there is no reason to
order her to pay the costs of the rescission application. For
all those reasons, I make the following order –
1. The application for postponement is dismissed.
2. The application to rescind Justice Maier -Frawley 's
order, dated 13 June 2024, is dismissed.
3. Each par ty will pay their own costs, both in the
postponement application and in the rescission
application.
WILSON , J
JUDGE OF THE HIGH COURT
26 August 202 6