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[2026] ZAGPJHC 990
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Technologies Acceptances Receivables (Pty) Ltd v Khunjulwa Managed Services (Pty) Ltd, Ndluvo (2024/089175) [2026] ZAGPJHC 990 (31 August 2026)
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THE REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NUMBER:2024-089175
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
In the matter between:
TECHNOLOGIES
ACCEPTANCES
Plaintiff / Applicant / Appellant
RECEIVABLES (PTY)
LIMITED
and
KHUNJULWA MANAGED
SERVICES
Defendant / Respondent
(PTY) LTD, GUGLETHU
SHEROL NDLOVU
This
Judgment was handed down electronically and by circulation to the
parties’ legal
representatives
by way of email and shall be uploaded on caselines. The date for hand
down
is deemed to be on
31 August 2026
JUDGMENT
MALI J
Introduction
[1]
This is an application by the defendants (hereinafter "the
applicants") for leave to appeal to the Full Court
of this
Division, or alternatively to the Supreme Court of Appeal, against
the whole of the judgment and order delivered by this
Court on 1
April 2026. In that judgment, the Court dismissed the applicants'
application to rescind a summary judgment granted
in favour of the
plaintiff (hereinafter "the respondent")
Applicable
legal principles
[2]
Section 17 of the Superior Courts Act 10 of 2013 ("the Act")
governs the application. Section 17(1)(a) provides
that leave to
appeal may only be granted where the Court is of the opinion that:
(i) the appeal would have
a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[3]
It is now trite that the test under section 17 is materially more
stringent than its predecessor. In
Mont
Chevaux Trust (IT2012/28) v Tina Goosen and Others
(unreported), the Court observed that the use of the word "would"
signals a measure of certainty that another court will
reach a
different conclusion. This contrasts with the earlier test, which
required only a reasonable possibility of a different
outcome. This
elevated standard has been consistently affirmed in
Van
Heerden v Cronwright and Others
[1]
,
Magashule v Ramaphosa and Others
[2]
,
and
Nedbank
Ltd v Steyn NO
[3]
.
[4]
The applicants bear the onus of demonstrating that the appeal would,
not might, enjoy reasonable prospects of success.
Furthermore, Rule
49(1)(b) of the Uniform Rules requires that the grounds of appeal be
set out clearly and succinctly. A bare averment
of dissatisfaction
will not suffice (Songono v Minister of Law and Order).
The
grounds of appeal
[5]
The applicants advance four principal grounds of appeal. I address
each in turn.
Ground
1: Rule 42(1)(a) Erroneous-Grant Ground
[6]
The applicants contend that the summary judgment was erroneously
granted in their absence, despite their having delivered
a plea and
counterclaim before the hearing.
[7]
It is imperative to distinguish between the statutory rescission
remedy under Rule 42(1)(a) and the common-law rescission
remedy. Rule
42(1)(a) permits a Court to rescind a judgment that was granted
"erroneously" in the absence of a party.
However, the
jurisprudence establishes that an "error" under this Rule
is one that is patent on the record and does not
require the
re-litigation of the merits. Crucially, the remedy is not available
to a party who deliberately elected to be absent,
as such a party is
the author of their own misfortune.
[8]
In Zuma v Secretary of the Judicial Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the
Public
Sector Including Organs of State
(2021) ZACC 23
, the Constitutional
Court held:
"[60] ... I do
not accept that litigants can be allowed to butcher, of their own
will, judicial process which in all other
respects has been carried
out with the utmost degree of regularity, only then, ipso facto,
plead the 'absent victim'. If everything
turned on actual presence,
it would be entirely too easy for litigants to render void every
judgment and order ever to be granted
by merely electing absentia."
[9]
In the present matter, the applicants were fully aware of the summary
judgment hearing. They chose not to attend. Furthermore,
counsel for
the applicants correctly conceded, at paragraph 7 of the judgment
a
quo
, that the applicants were in wilful default.
[10]
The
sine qua non
for rescission, whether under Rule 42 or the
common law, is a reasonable explanation for the default. Wilful
default is the antithesis
of a reasonable explanation. Once wilful
default is established, the enquiry ends. The existence of a plea or
a counterclaim does
not "rescue" the applicants, because
the procedural irregularity (the default) is entirely self-created.
The summary
judgment court was entitled to rely on the applicants'
failure to oppose the application in person or through counsel.
[11]
Accordingly, this ground fails to disclose any reasonable prospect
that another court would find that the judgment was "erroneously"
granted in a manner amenable to rescission.
Ground
2: The Financier-as-Vendor and the Consumer Protection Act ("CPA")
[12]
The applicants argue that the respondent, as the financier who
acquired title to the goods, stepped into the shoes of the vendor
and
assumed reciprocal obligations to service or maintain the goods under
the CPA and the common law.
[13]
This contention is legally untenable. The parties' relationship is
governed by the express terms of the Master Rental
Agreement. That
agreement explicitly stipulates that:
(a) the goods were
accepted by the first defendant "as is";
(b) the plaintiff bore no
obligation to service or maintain the goods; and
(c) any service or
maintenance agreement was to be concluded separately with the vendor.
[14]
The CPA imposes obligations on a "supplier" in respect of
the supply of goods. However, the respondent is not
a "supplier"
in the chain of supply in the ordinary course of business. The
respondent is a financial institution that
advanced funds and took
title as security for the rental stream. It does not market,
distribute, manufacture, or service the equipment.
To impose the
CPA's strict liability on a passive financier would stretch the
legislative purpose beyond its intended ambit and,
more importantly,
would contradict the explicit contractual allocation of risk agreed
to by the applicants.
[15]
The applicants' formal admissions in their plea admitting the terms
of the agreement irreconcilably undermine their attempt
to rely on an
implied warranty or a deemed reciprocal obligation. This ground
discloses no arguable error of law or fact.
Ground
3: The Inter-Connected Counterclaim
[16]
The applicants submit that their counterclaim for defective goods is
inter-connected with the respondent's claim and
ought to have been
adjudicated at trial, thereby defeating summary judgment.
[17]
It is well established that a counterclaim will only defeat a summary
judgment application if the counterclaim is liquidated,
or if it is
so closely connected to the plaintiff's claim that it operates as a
set-off or extinguishes the plaintiff's right to
payment. The
applicants' counterclaim is for unliquidated damages for alleged
defects. It is entirely contingent on the success
of their CPA
argument, which I have already rejected.
[18]
An unliquidated, speculative counterclaim cannot serve as a bona fide
defence to a liquidated claim for rental instalments
that are
indisputably due under a written agreement. The mere fact that the
counterclaim arises from the same transaction does
not elevate it to
a defence of the principal claim. Accordingly, this ground has no
merit.
Ground
4: Wilful Default "Cancelled Out" by the Defence
[19]
The applicants argue that the asserted bona fide defence "outweighs"
or "cancels out" their explanation
for non-attendance.
[20]
This argument is fundamentally misconceived. The test for rescission
is cumulative, not a balancing exercise. The applicants
must pass
both legs: (a) a reasonable explanation for the default; and (b) a
bona fide defence on the merits. The first leg is
a jurisdictional
prerequisite. Where the default is wilful, the first leg is failed,
and the Court cannot proceed to weigh the
merits of the defence.
[21]
The concession regarding wilful default is fatal to the entire
application. No amount of legal ingenuity regarding the
CPA can
resuscitate an application that fails at the threshold. This ground
is accordingly dismissed.
Prospects
of success and compelling reasons
[22]
Having carefully considered all four grounds, I am satisfied that the
applicants have failed to discharge the onus imposed
by section 17.
They have not shown that another court would arrive at a different
conclusion. At best, they have raised the mere
possibility of a
different interpretation of the contract, which is insufficient under
the elevated standard of the Act.
[23]
I also find no "other compelling reason" to grant leave to
appeal. There is no conflict of judgments on the
issues raised. The
matter does not raise a question of public importance, nor does it
involve a manifest injustice. The legal principles
governing
rescission, summary judgment, and the interpretation of the CPA are
well-settled.
Conclusion
[24]
The applicants have failed to establish any reasonable prospect of
success on appeal. The application is devoid of merit
and stands to
be dismissed with costs.
Order
In
the premises, the following order is made:
1. The application for
leave to appeal is dismissed.
2. The applicants are
ordered to pay the costs of this application jointly and severally,
the one paying the other to be absolved,
on the attorney and client
scale.
N.
P MALI
JUDGE
OF THE HIGH COURT
Representatives
For
the applicants
: S Ndobe
Attorneys
for the applicants : S Ndobe
Attorneys
For
the respondents
: J.G.
Botha
Attorney
for the respondent : ODBB Inc.
Hearing
date
: 14 August 2026
Delivery
date
: 31 August 2026
[1]
1985
(2) SA 342
(T) at 343H)
[2]
(2021/23795)
[2021] ZAGPJHC 405 (13 September 2021)
[3]
2020
JDR 0754 (GJ)