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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case number: 52390/2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE 26 August 2026
SIGNATURE
In the matter between:
ARMAND DE LANGE First Applicant
MELANI DE LANGE Second Applicant
and
THE STANDARD BANK OF SOUTH AFRICA First Respondent
THE REGISTRAR OF DEEDS Second Respondent
NATIONAL CREDIT REGULATOR Third Respondent
SHERIFF: PRETORIA EAST Fourth Respondent
JUDGMENT
______________________________________________________________
Summary: Application for rescission of judgment and postponement. Whether
rescission in terms of Rule 42(1) is competent where the order sought to be rescinded
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was not granted in the applicants’ absence and where they fully partook in opposing
the main application.
Held: Rescission is not competent under the circumstances as applicants ought to
have followed the appeal process.
The judgment and order are published and distributed electronically.
MINNAAR AJ,
Introduction:
[1] On 22 January 2025 , judgment was granted against the applicant s for
breach of the home loan agreement and mortgage bond. The subject
property, the applicants’ principal place of residence, was declared
executable, and a reserve price of R700 000.00 was set.
[2] The monetary judgment was granted by default, as the applicants' plea
and defence were struck out on 20 May 2022.
[3] The applicants delivered an answering affidavit to the Rule 46A
application and the first respondent delivered a replying affidavit. The
Rule 46A application was thus entertained as a fully opposed
application.
[4] When the Rule 46A application was heard, t he first applicant appeared
in person and was granted audi. From the judgment, it is evident that
the Court considered the applicants’ opposition to the Rule 46A
application.
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[5] In August 2025, the applicants brought an application , premised on the
provisions of Rule 42, seeking the following relief:
a. Rescinding and/or varying the default judgment and the order
declaring the subject property executable.
b. Setting aside or varying all related writs of execution issued
pursuant to the judgment.
c. In terms of Rule 45A, pending the execution process until final
adjudication of the application.
d. Directing the Registrar of Deeds to provide a certified record, or
affidavit, regarding the status and any cession or transfer and all
endorsements, caveats and notes relating to Mortgage Bond
No. S[...], in compliance with the applicants’ PAIA request.
e. Granting the applicants leave to file affidavits and
supplementary submissions addressing any errors, omissions or
irregularities or to review the credit agreement under section
129(3) and (4) of the National Credit Act, 34 of 2005.
f. Costs in the event of opposition.
[6] The first respondent opposed the application and delivered an
answering affidavit. The applicants failed to deliver a replying affidavit.
[7] The applicants took no steps to place the opposed rescission
application on the roll. As it is entitled, the first respondent enrolled the
application on the opposed roll. On 19 February 2026, the first
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respondent served a notice of set down. The opposed application
came before me in the opposed motion court and was heard on 11
May 2026. The first applicant appeared in person, and counsel
represented the first respondent.
[8] Prior to the hearing of the opposed rescission application, t he
applicants lodged an application to postpone the matter to enable them
to deliver a supplementary affidavit relating to a purported PAIA
request and related matters . The first respondent opposed the
postponement application.
The postponement:
[9] As already stated, the set down was served on 19 February 2026
following the applicants' inaction in getting their rescission application
ripe for hearing.
[10] There is no acceptable explanation in the affidavit in support of
the postponement application to justify the last -minute nature of the
postponement. In my view, the application was brought as a further
delaying tactic to escape the inevitable: execution of the order granted
on 22 January 2025.
[11] On the prospects of success in the main application, I found
none, and it would therefore serve no purpose to grant the requested
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postponement. On the contrary, the rescission application was ill -
conceived and should never have seen the light of day.
[12] The first respondent is entitled to finality in the litigation.
Summons was served personally on 3 August 2019, and the first
respondent is still unable to enforce its rights under the loan agreement
and mortgage bond.
[13] A postponement would not advance the interest if justice and
the indulgence sought by the applicants cannot be entertained. In the
circumstances, the application for postponement must fail.
Rescission:
[14] I am mindful that the applicants are self -represented and that
they are attempting to protect their primary residence. The court
sympathises with self -represented litigants but must also ensure the
Rules and procedures are followed to allow for an orderly process.
[15] Rule 42(1)(a) provides that the court may, in addition to any
other powers it may have, mero motu or upon the application of any
party affected, rescind or vary an order or judgment erroneously sought
or erroneously granted in the absence of any party affected thereby.
[16] Rule 42(1)(b) deals with an order or judgment in which there is
an ambiguity, or a patent error or omission, but only to the extent of
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such ambiguity, error or omission. Rule 42(1)(c) caters for an order or
judgment granted as the result of a mistake common to the parties.
Rule 42(1)(b) and (c) do not find application herein and need no further
comment.
[17] It is trite under Rule 42(1)(a) that defences known at the time
judgment was granted cannot subsequently be presented in support of
a case that the order was erroneously sought and/or granted. 1 This is
to prevent the proverbial second bite at the cherry.
[18] Even if Rule 42(1)(a) could find application herein, the defences
raised by the applicants (non -compliance with Rule 46A, jurisdiction,
securitisation, non -compliance with the National Credit Act and
property valuations) cannot be advanced in support of the applicants'
case to have the order rescinded. These were defences known to the
applicants when they opposed the Rule 46A application, yet they
elected not to rely on same. This rescission application is a veiled
attempt by the applicants to seek a second chance to advance
additional defences to their Rule 46A opposition, which they are not
entitled to do.
[19] The default judgment application cannot be a subject of
rescission as the applicants’ defence was struck by order of court on
20 May 2022. No steps were taken to set aside this striking out order.
1 Kgomo v Standard Bank of South Africa 2016 (2) SA 184 (GP) ; Colyn v Tiger Food
Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) ; Lodhi 2 Properties
Investments CC v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA)
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On the contrary, the applicants acquiesced with this order when they
opposed the Rule 46A order.
[20] Rule 42(1)(a) is not available to the applicants as the order
granted on 22 January 2025 was not sought or granted in their
absence. The applicants filed an answering affidavit to the Rule 46A
application and made oral submissions at the hearing. They actively
participated in the Rule 46A procedure.
[21] The 22 January 2025 order was final. It could not be the subject
of a rescission. If the applicants were not satisfied with the outcome of
that order, they ought to have applied for leave to appeal. They elected
not to utilise the appeal process.
[22] On this basis, this rescission application is futile. Since the
rescission application cannot be entertained, i t follows that the relief
sought to suspend the execution of the 22 January 2025 pending
finalisation of the rescission application and setting aside or varying all
related writs of execution must also fail.
Lis pendens:
[23] The first respondent raised a point in limine of lis pendens ,
alleging that the applicants have instituted two applications before this
court that are set down for simultaneous hearing.
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[24] In support of this contention, the first respondent relies on
Annexure “SB2” to their answering affidavit. This annexure is a
document dated 22 August 2025, signed by both applicants.
[25] Annexure “SB2” is not an application as prescribed by the Rules
as it is not supported by a founding affidavit. At best, it can be
described as a notice setting out the purported relief sought by the
applicants. Without being supported by evidence, in the form of a
founding affidavit, I am not willing to accept that it is an ‘application’ as
contended by the first respondent.
[26] In the premises, I cannot find that the requirements for lis
pendens (litigation between the same parties, on the same cause of
action and where the same relief is sought) have been established.
[27] There is only one proper rescission application before me, and
therefore the point in limine must fail.
Costs:
[28] There is no basis to deviate from the normal approach that costs
should follow the outcome.
[29] In the answering affidavit, the first respondent seeks a dismissal
of the application with costs on the attorney and client scale.
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[30] Counsel for the first respondent alerted me that the parties did
not contractually agree to attorney -and-client-scale costs; as such, it
remains for this court to decide what scale of costs would be
reasonable.
[31] The discretion in granting costs is trite. 2 I am not convinced that
the applicant should be mulcted with a punitive costs order. It follows
that the applicant will be liable to pay costs on a party-and-party scale.
[32] The determination of the applicable scale of costs under the
party-and-party scale regime is dictated by Rule 67A of the Uniform
Rules of Court. Rule 67A(3) provides that a court “shall”, when making
a party and party costs order, “indicate the scale in terms of Rule 69,
under which costs have been granted”. The amendment that created
Rule 67A inserted those scales into Rule 69(7) . They are scales “A”,
“B”, and “C”. Rule 67A(4) provides for the right to apply for an order
determining which parts of the proceedings, if any, were urgent, and
whether the costs of more than one counsel may be recovered. The
effect of that subrule is, notionally, that a different scale could be
assigned to the services of each counsel whose fees are allowed under
the rule.3
2 Ferreira v Levin NO & Others; Vryenhoek & Others v Powell NO and Others 1996 (2) SA
621 (CC) at paragraph 3
3 Mashava v Enaex Africa (Pty) Ltd (2022/1840) [2024] ZAGPJHC 387 (22 April 2024) at par 7 to 9
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[33] The complex nature of a matter and how the case was
presented to the court are among the factors to consider when setting
a scale under the rule.4
[34] The application before this Court was not of such a complex
nature and, as such, the Court finds that the first respondent is entitled
to the costs catered for under Scale B.
Order:
Consequently, I make the following order:
1. The application for rescission of judgment dated 22 August 2025 is
dismissed.
2. The applicant s, jointly and severally the one paying the other to be
absolved, are ordered to pay the costs of the application, on the scale
as between party and party, scale B.
_____________________
Minnaar AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
4 Mashava at par 14
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Heard on : 11 May 2026
For the Applicants : First applicant in person
Instructed by : In person
For the First Respondent : Adv. C Barreiro
Instructed by : Strauss Daly Attorneys
Date of Judgment : 26 August 2026