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[2026] ZAFSHC 413
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Minister of Police v OD Scrap Metals (Pty) Ltd (A227/2025) [2026] ZAFSHC 413 (27 August 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: A227/2025
In the matter between:
MINISTER OF
POLICE
APPELLANT
and
OD SCRAP METALS (PTY)
LTD
RESPONDENT
Neutral
citation:
Minister
of Police v OD Scrap Metals (Pty) Ltd
(A227/2025)
[2026] ZAFSHC 402
(27 August 2026)
Coram:
GREYLING-COETZER J
et
MPAMA AJ
Heard:
4 May 2026
Delivered:
The date and time for hand-down is deemed to be
10h00 on 27 August 2026.
Summary:
Appeal against refusal to rescind a default
judgment
–
default judgment void
ab
origine
–
appeal upheld
ORDER
On
appeal from:
Magistrates’ Court
for the District of Lejweleputswa, held at Odendaalsrus:
1
The appeal is upheld.
2
The order
of the Magistrate's Court dated 11 November 2025 is set aside and
replaced with the following:
‘
1)
The default judgment dated 10 October 2023 is rescinded.
2) The applicant is
ordered to pay costs of the rescission application.’
3 Each party shall
bear its own costs.
JUDGMENT
Mpama
AJ
(Greyling-Coetzer J
concurring)
[1]
This appeal is directed against the refusal by the Magistrates’
Court for the District of Lejweleputswa, held at
Odendaalsrus (the
court a
quo
),
to rescind the default judgment per the order delivered on 11
November 2025. In terms thereof, the court a
quo
ordered ‘Judgement – Def Judgment is granted. Setting
aside dismissed’.
[2] The common
cause facts leading to the present appeal can be summarised as
follows. During May and June 2015, members in
the employ of the
appellant seized copper cables found in possession of the respondent.
The copper cables were seized on allegations
that the cables belonged
to Eskom. Aggrieved by this conduct, the respondent, during 2016,
issued a combined summons against the
appellant claiming the return
of the cables, alternatively payment of R49 462.00 to the respondent.
[3] On 14 July
2016, summons was served on the appellant. The appellant filed a
Notice of Intention to Defend during August
2016 and a plea in
September 2016. In the plea, the appellant inter alia raised that the
appellant had been erroneously cited as
the Minister of Safety &
Security instead of the Minister of Police. Furthermore, the
appellant averred that the conduct of
removing the copper cables was
lawful as the respondent had been found in possession of the cable
belonging to Eskom.
[4] Pleadings
closed and during 2017, a pre-trial conference as contemplated in s
54 of the Magistrate’s Court Act 32
of 1944 (the MCA) was
scheduled. The parties during the same year delivered their
respective discovery affidavits as contemplated
in rule 23 of the
Rules Regulating the Conduct of the Proceedings of the Magistrates’
Courts (the rules).
[5] From the record
it appears that at some point in 2018 the respondent delivered an
amended particular of claim, although
the extent of the amendment
does not appear from the record. It further appears that a notice of
bar was prepared by the respondent
in respect of the amended
particulars of claim calling for the appellant to plead to the
amended particulars of claim, but the
record does not reveal when the
notice of bar was delivered.
[6] Notwithstanding
the aforesaid, the matter was certified ready for trial, and the
respondent set it down for trial on 18
April 2023. On the said date,
the matter was removed by agreement between the parties due to an
electricity outage which affected
the court operations.
[7]
On 10 October 2023, the respondent submitted a ‘No. RM 5
Request for Default Judgment’. In terms thereof,
the respondent
set out that the default judgment is applied for as follows:
‘
(a)
The Defendant having been duly served on 14 July 2016
(b)
The time for entering a plea having expired; and
(c)
The Defendant not having entered a plea to defend; judgment be given
against the defendant.’
[8] On even date,
the learned magistrate granted the default judgment to the respondent
per the issued court order which reads:
‘
After
having heard the attorney for the plaintiff, the Honorable Court to
grant Rule 9(13)(a) of the Magistrate’s Court Act
1944 (Act 32
of 1944), against the Judgment Debtor:
1.
An order in terms of which the Defendant is
ordered to deliver the movable property to the Plaintiff;
2.
In the alternative and if the defendant is
unable to deliver the moveable property, then in that case the
Defendant must be ordered
to pay the amount of R49 462.00 to the
plaintiff;
3.
Moratore Interest calculated from 8 March
2016 until date of final payment;
4.
Costs to be taxed
5.
Further and/or alternative relief.’
[9] On 11 December
2024, the appellant instituted an application for the rescission of
the default judgment granted on 10
October 2023. The respondent
opposed the application.
[10] In the court a
quo,
the appellant contended that the rescission is sought in
terms of s 36 of the MCA read with rule 49, in that the default
judgment
was obtained in its absence, that good cause exists for the
rescission and that the default judgment was void
ab
origine
.
[11] In summation,
the factual basis set out by the appellant in support of the
rescission application before the court a
quo
was that the
matter was an opposed action and set down for trial on 18 April 2023.
On that date, the matter was removed from the
roll by agreement. It
was further agreed that a suitable new trial date would be agreed on
by the parties. Despite this agreement,
the respondent obtained a
default judgment on 10 October 2023, in the absence of the appellant
and without notifying the appellant
of the new set-down date.
[12] The appellant
contended that if the notice of set down was emailed, it is possible
that the set down for the new trial
date of 10 October 2023 did not
come to the appellant’s knowledge as the email server of the
Department of Justice during
July, August, and September 2023 were
not in proper working order.
[13] It was further
stated that on or about 22 October 2024 the Sheriff served the
appellant’s national office with
a writ which was forwarded by
email to the appellant’s provincial office on 7 November 2024.
Ms Mbanga, the Legal Administrative
Officer of the appellant’s
provincial office, receipted the writ and then approached the
appellant’s attorney of record
on or about 7 November 2024,
informing him thereof and enquired as to the circumstances which may
have led to the writ being issued.
[14] Mr Mtwebana,
the State Attorney who dealt with the matter, in turn advised that
the matter was opposed and, after removal
from the trial roll on 18
April 2023, no further documentation was served. He undertook to make
enquiries to the respondent’s
attorney of record, to establish
the circumstances which led to the writ being issued.
[15] The following
day, 8 November 2024, Mr Mtwebana wrote to the respondent’s
attorney of record, recording receipt
of the writ, the agreement
pertaining to removal of the matter from the roll of 18 April 2023,
and that no further documents had
been received since. He also
confirmed instructions to seek a rescission of the default judgment.
According to the appellant, Mr
Mtwebana did not receive a response to
the correspondence.
[16] Mr Mtwebana
then took various steps directed at the Clerk of the Court in
Odendaalsrus to obtain copies of the default
judgment application
notice of set down and proof of service. Some documents were received
on 9 December 2024. On receipt and perusal
of these documents, Ms
Mbanga, on 10 December 2024, consulted with the relevant members of
the appellant involved in the matter
and Mr Mtwebana. The application
for rescission of judgment was prepared and issued on 11 December
2024.
[17] The appellant
acknowledged that, if the application was brought outside the
prescribed time limit, in the alternative
sought condonation for such
non-compliance. The appellant addressed the merits and contended that
the respondent was in unlawful
possession of stolen copper cables
belonging to Eskom, as supported by SAPS dockets CAS 123/05/2015 and
CAS 77/06/2015.
[18] In opposing
the application, the respondent denied the existence of any agreement
that the matter would be re-enrolled
on a mutually agreed date. The
respondent contended that a notice of set down for the hearing on the
trial roll was served on 24
July 2024 per email, subsequent to the
allocation of a hearing date by the Clerk of the Court. According to
the respondent, service
took place by email per the election of the
appellant, and no address for service in Odendaalsrus was designated.
The respondent
also contended that a copy of the default judgment was
served by email on 18 October 2023 and no response was received from
the
appellant.
[19] The respondent
admitted that correspondence was received from the appellant on 8
November 2024 and indicated that a reply
was directed to the
appellant by email on 13 November 2024. It was disputed that the
respondent was in unlawful possession of the
copper cables and that
the said cables belonged to Eskom. It further contended that the
rescission application was filed out of
time and that condonation
cannot be dealt with in the rescission application and should have
been sought per a separate condonation
application. The appellant did
not deliver a replying affidavit.
[20] The learned
magistrate, in an undated reply to a request for reasons for the
refusal of the rescission application, was:
‘
1.
Notice of Bar was furnished on the 11 January 2019. (Copies attached)
2. A reply to the Notice
of Bar was never replied to until 2025.
3. Rules indicate you
have 20 days to rescind this. Period of time has wholly elapsed.
My judgment is available
on request of the transcript.’
[21] In this court,
the appellant challenges the court a
quo’s
findings and
order of 11 November 2025 essentially on three grounds. Firstly, that
the rescission application was filed late. Secondly,
that the court a
quo
failed to apply the correct legal principles per the rules
and authority. Thirdly, the finding that the default judgment was
valid
and properly obtained.
[22] The appellant
contends in elaboration that the application was filed within the 20
days period prescribed in terms of
rule 49(1) if regard is had to
when the appellant obtained the documents from the Clerk of the
Court, but additionally the default
judgment is void as it was
granted on the incorrect factual premise that the appellant had
failed to file a plea and was therefore
barred, where in fact, the
appellant had filed a plea on 9 September 2016, pleadings had closed,
and matter was trial ready.
[23] Crisply put,
the issues for determination in this appeal are thus (i) Was the
rescission application brought out of time
and (ii) Was the default
judgment properly entered against the appellant.
[24]
The applications for rescission of judgments in the magistrates’
court are governed by s 36 of the MCA and Rule
49. Section 36 (1) of
the MCA provides:
‘
(1)
The court may upon application by any person affected thereby, or, in
cases falling under paragraph (c) suo motu-
(a)
rescind or vary any judgment granted in
the absence of the person against whom that judgment was granted;
(b)
rescind or vary any judgment
granted by it which was void ab origine or was obtained by fraud or
by mistake common to the parties;
(c)
correct patent errors in any judgment
in respect of which no appeal is pending;
(d)
rescind or vary any judgment in respect
of which no appeal lies
.’
[25] The relevant
portions of rule 49 provide:
‘
(1)
A party to proceedings in which a default judgment has been given, or
any person affected by such judgment, may within 20 days
after
obtaining knowledge of the judgment serve and file an application to
court, on notice to all parties to the proceedings,
for a rescission
or variation of the judgment and the court, may upon good cause
shown, or if it is satisfied that there is good
reason to do so,
rescind or vary the default judgment on such terms as it deems fit:
Provided that the 20 day period shall not
be applicable to a request
for rescission or variation of judgment brought in terms of sub-rule
(5) or (5A).
(2) It will be presumed
that the applicant had knowledge of the default judgment 10 days
after the date on which it was granted,
unless the applicant proves
otherwise.
(3) Where an application
for rescission of judgment is made by a defendant against whom the
judgment was granted, who wishes to
defend the proceedings, the
application must be supported by an affidavit setting out the reasons
for the defendant’s absence
or default and the grounds of the
defendant’s defence to the claim.
(4) . . .
(5) . . .
(5A) . . .
(6) . . .
(7) . . .
(8) Where the rescission
or variation of a judgment is sought on the ground that it is void
from the beginning, or was obtained
by fraud or mistake, the
application must be served and filed within one year after the
applicant first had knowledge of such voidness,
fraud or mistake.
(9) . . . . ’
[26] Rule 49 makes
provision for two distinct time periods within a rescission
application that should be brought depending
on the circumstances
applicable to each case. Rule 49(1) sets the time period to be within
20 days after obtaining knowledge of
the judgment. This period of 20
days does not find application if the application is brought under
sub-rule (5) or (5A). Equally,
the 20 days’ time period also
does not find application where the application is brought on the
ground that the judgment
is void from the beginning, was obtained by
fraud or mistake. In the latter instance, the application must be
served and filed
within one year after knowledge of such voidness,
fraud or mistake had been obtained. Which subsection will find
application will
obviously depend on the grounds and facts relied on
by the applicant.
[27] The appellant
in the court a
quo
contended that the default judgment had
been granted in its absence and was void
ab
origine
,
relying on the circumstances summarised above, thus invoking the
provisions of rule 49(8). The appellant further contended that
the
rescission application had been instituted within 20 days of it
becoming aware of the default judgment, thereby asserting the
applicability of rule 49(1). It is apparent, however, that the court
a
quo
approached the matter on the premise that rule 49(1) was
applicable. That premise was erroneous on the facts of the matter and
materially influenced the court a
quo’s
determination.
Rule 49(8) was engaged, and the application was thus not brought out
of time.
[28]
Before dealing with the question whether the default judgment was
void, a further manifest irregularity stands to be
highlighted. The
court a
quo
,
in the reasons advanced for the refusal of the rescission
application, relied upon facts and circumstances which did not appear
ex facie the affidavits which were served before the court a
quo
.
It was never alleged by the respondent in its affidavit opposing the
rescission that the default judgment was sought on the basis
that a
notice of bar was filed on 11 January 2019 and that a reply to the
notice of bar was never replied to until 2025.
Nevertheless,
the court invoked this consideration as a basis for refusing the
application for rescission.
[29]
A court is bound by the pleadings and, in this case, the affidavits
placed before it. In
Minister
of Safety and Security v Slabbert
[1]
the
court restated that the purpose of the pleadings is to define the
issues for the other party and the court. A party has a duty
to
allege in the pleadings the material facts upon which it relies, and
it is impermissible for the trial court to have recourse
to issues
falling outside the pleadings when deciding a case.
[30] Turning to the
question whether the default judgment was void
ab
origine
.
The appellant in this respect contends that the RM5 Request for
default judgment materially misrepresented the facts in that the
respondent represented that it applied for default judgment on the
basis that the appellant had been served on 14 July 2016, that
the
time for entering a plea had expired and that the appellant had not
entered a plea to defend. From the common cause facts which
were
served before the court a
quo
, it was clear that the matter
was an opposed action having been enrolled for trial on 18 April
2023. From the record, it is further
unavoidable that the appellant
had already filed a plea in September 2016 to the summons served on
14 July 2016. It can thus not
be sustained that as at granting of the
default judgment, no plea had been filed to the summons served on 14
July 2016.
[31] Although the
above finding is dispositive of the issues, the respondent contended
during argument that amended particulars
of claim had been filed, in
respect of which a notice of bar was subsequently issued. The
respondent accordingly submitted that
it was entitled to default
judgment on the basis set out in the RM5 Request for Default
Judgment. The amended particulars of claim,
however, do not form part
of the record.
[32] For the sake
of completeness, it is therefore necessary to consider whether the
appellant was obliged to deliver a plea
pursuant to the alleged
filing of the amended particulars of claim and, consequently, whether
the respondent was entitled to default
judgment by reason of the
appellant’s alleged failure to do so following the notice of
bar.
[33] Rule 55A is
couched in identical terms to rule 28 of the Uniform Rules of Court.
Rule 55A(8) provides:
‘
(8)
Any party affected by an amendment may, within 15 days after the
amendment has been effected or within such periods as the court
may
determine, make any consequential adjustment to the documents filed
by him or her, and may also take the steps contemplated
in rule 19
.’
[34]
In
Nqabeni
Attorneys Incorporated v God Never Fails Revival Church
[2]
it
was held, with reference to Uniform Rule of the Court 28(8) that:
‘
(a)
When a plaintiff accomplishes an amendment to a declaration, and no
plea has yet been filed, the defendant is put on terms
to comply with
the rule 22(1) of the Uniform Rules of Court and thereby file a plea
within 20 days (failing which a notice of bar
would have to follow in
order to compel delivery of the plea).
(b)
The scope of subrule (8) is limited to circumstances where an
amendment creates the risk of ripple effect on pleadings
already
filed, which risks rendering those pleadings non-responsive to the
amended pleading and for that reason there may be a
need of an
adjustment to render them responsive.’
[3]
[35] Rule 55A(8)
did not impose an obligation upon the appellant to deliver an amended
plea merely because of the filing of
amended particulars of claim.
The rule gives an election to the party affected by the amendment to
decide if an adjustment is necessary.
It does not follow as a matter
of course that a litigant must effect consequential adjustments to
its pleadings upon every amendment
introduced by the opposing party.
[36] Unfortunately,
further irregularities pertaining to the granting of the default
judgment are apparent and warrant mention.
The most obvious, but
unexplained being the utilisation of the RM5 Request for default
judgment form in circumstances where the
matter was set down on the
trial roll for 10 October 2025. Having enrolled the matter as such,
and in circumstances where the appellant
failed to appear at the
hearing, the matter stood to be dealt with in terms of rule 32. Rule
32 provides:
‘
Non-appearance
of a party-withdrawal and dismissal
(1) If a plaintiff or
applicant does not appear at the time appointed for the trial of an
action or the hearing of an application,
the action or application
maybe dismissed with costs.
(2) If a defendant or
respondent does not appear, a judgment (not exceeding the relief
claimed) may be given against him or her
with costs, after
consideration of such evidence, either oral or by affidavit, as the
court deems necessary.’
[37] There is no
indication in the record that rule 32 and process in terms thereof
was followed, no affidavit appeared to
have been filed in support or
evidence led. The relief sought by the respondent was principally an
order for delivery of the movable
property alleged to be owned by the
respondent and, in the alternative, payment of the monetary sum of
R49 462.00. The particulars
of claim do not demonstrate how the
amount claimed was calculated; as such, the alternative was not a
liquidated demand and required
evidence to support the granting of
such an amount.
[38] The failure to
determine and grant the default judgment in terms of rule 32 is
further fortified by the judgment granted.
The judgment records that
it is granted in terms of rule 9(13)(
a
). Rule 9(13)(
a
)
does not provide for the granting of judgment by default, nor does it
prescribe the manner in which such judgment may be entered.
Rule
9(13) provides:
‘
(a)
Unless otherwise provided, where service of process may be effected
by registered post such service shall be effected by the
sheriff
placing a copy thereof in an envelope, addressing and posting it by
prepaid registered letter to the address of the party
to be served
and making application at the time of registration for an
acknowledgement by the addressee of the receipt thereof
as provided
in regulation 44(5) of the regulations published under Government
Notice R,550 of 14 April 1960’.
It is therefore
difficult, if not impossible, to discern the basis upon which the
court a
quo
relied upon this rule in granting the judgment.
[39] From the
reasons advanced for the refusal of rescission, it appears the court
a
quo
regarded the finding that the application had been
brought out of time as conclusive and did not deal with the
bona
fide
defence advanced by the appellant. The appellant
contended that the copper cables were seized by the police pursuant
to criminal
investigations under CAS NO. 123/05/2015 and 77/06/2016,
which constituted stolen property and were, in fact, the lawful
property
of Eskom.
[40]
The standard for establishing a
bona
fide
defence in a rescission application is not onerous. In
Van
Heerden v Bronkhorst
[4]
the
Supreme Court of Appeal held that:
‘
[a]
bona
fide
defence needed to be established prima facie only. It was accordingly
not necessary to deal fully with the merits of the case in
order to
prove the case. It would be sufficient to set out facts, which if
established at the trial, would constitute a defence
valid in
law.’
[5]
The appellant has done
so.
[41] For the
foregoing reasons, the rescission application was not brought out of
time and in fact void
ab
origine
. The court a
quo
thus misdirected itself in refusing the application for rescission of
judgment.
[42] The respondent
in its papers lamented the delays attributable to the appellant in
bringing the matter to finality. It
is so that the action proceedings
commenced in 2016 and the judgment was obtained by the respondent in
2023. While acknowledging
that such delays and notwithstanding the
frequently used maxim in our jurisprudence that ‘justice
delayed is justice denied’,
the inescapable reality remains
that the judgment is marred with concerning irregularities and has
been rendered void
ab
origine
. Consequently, the appeal
must succeed.
[43] The general
rule is that costs follow the event. However, in the exercise of my
discretion and having regard to the circumstances
of this matter, I
consider it just reasonable that each party bears its own costs.
[44]
On appeal
from:
Magistrates’ Court for the District of Lejweleputswa,
held at Odendaalsrus:
1
The appeal is upheld.
3
The order of the Magistrate's Court dated
11 November 2025 is set aside and replaced with the following:
‘
1)
The default judgment dated 10 October 2023 is rescinded.
2) The applicant is
ordered to pay costs of the rescission application.’
3 Each party
shall bear its own costs.
L MPAMA
ACTING JUDGE OF THE
HIGH COURT
I concur:
D
GREYLING-COETZER
JUDGE
OF THE HIGH COURT
Appearances
For
the appellant:
T Ntoane
Instructed
by:
Office of State Attorney
Bloemfontein
Instructed
by:
For
the respondent:
J Donnely-Bornman
Instructed
by:
Neuman Van Rooyen
Welkom
c/o
Phatsoane Attorneys
Bloemfontein
[1]
Minister
of Safety and Security v Slabbert
[2009] ZASCA 163
;
[2010] 2 All SA 474
(SCA) para 11.
[2]
Nqabeni
Attorneys Incorporated v God Never Fails Revival Church and Others
(40739/2017)
[2019] ZAGPJHC 51 (7 March 2019).
[3]
Ibid
para 12.
[4]
Van
Heerden v Bronkhorst
(846/19)
[2020] ZASCA 147
(13 November 2020).
[5]
Ibid
para 26.