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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
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: B2372/23
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
DATE 20/08/2026
MNGQIBISA-THUSI NP
In the matter between:
SEBABATSO FLORENCE MOKOENA Applicant
and
CHANGING TIDES 17 (PROPRIETARY) LIMITED N.O Respondent
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This judgment has been handed down remotely and shall be circulated to the parties
by way of email / uploading on Caselines. The date of hand down shall be deemed to
be 20 August 2026.
ORDER
_____________________________________________________________________
The following order is granted:
1. The application is dismissed.
2. The applicant to pay the costs of the application on an attorney and client
scale.
JUDGMENT
___________________________________________________________________
MNGQIBISA-THUSI J
[1] The applicant, Ms. Sebabatso Florence Mokoena, seeks an order rescinding a
default judgment granted on 24 January 2024 in favour of the respondent,
Changing Tides 17 (Pty) Ltd N.O.
[2] Although the applicant did not expressly set out in terms of which rule she
seeks the rescission of the order for default judgment, in his submission
counsel for the applicant submitted that the applicant relies on uniform rule 42
(1) for the relief she seeks.
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[3] Uniform rule 42(1)(a) provides that an order or judgment erroneously sought or
granted in the absence of a party affected thereby may be rescinded. A
judgment is erroneously granted when the court, at the time of granting it, was
unaware of facts which would have precluded the granting of the order. Where
the Court lacked jurisdiction or where there was no valid service of process, the
judgment is a nullity and falls to be rescinded.
[4] During June 2021, the South African Home Loans ("SAHL") and the applicant
concluded an agreement whereby the SAHL gave the applicant a home loan.
The property is situated at 1[...] G[...] G[...], Sebokeng (the property”), which is
also the applicant's domicilium address. The loan was secured by a mortgage
bond over the property in favour of SAHL. Following the applicant's failure to
make her instalment payments, the respondent, acting on behalf of SAHL, filed
an application for default judgement, which was granted on 24 January 2024,
which also provided for an order declaring the property specially executable.
[5] The applicant seeks an order setting aside the default judgment on the basis
that:
5.1 this court lacked jurisdiction to adjudicate the matter;
5.2 the summons initiating the proceedings was defective and amounted to an
irregular step due to non-compliance with Rule 17(3) of the Uniform Rules
of Court; and
5.3 the applicant was not properly served with the summons, thus violating
uniform rule 4(1).
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[6] The respondent opposes the application, contending that the order was
properly sought and granted in that the court had jurisdiction, and that service
was duly affected.
[7] Even though counsel for the applicant submitted that the relief sought was
based on uniform rule 42(1)(a), in his submission s no basis was laid for this
assertion save to indicate that the applicant was relying on the fact that the
applicant was not personally served with the summons . However, after it was
pointed out to counsel that attached to the respondent’s founding papers in the
application for default judgment application , was a return of service which
evidences the fact that the summons were actually personally served on the
applicant at her domicilium address , counsel for the applicant conceded that
besides the apparent reliance on the non -service of the summons which has
been shown to be incorrect, he had no further submissions to make to advance
the applicant’s application for the relief sought.
[8] In view of the concession made by counsel for the applicant, counsel for the
respondent sought an order dismissing the application and that applicant
should be liable for the costs of the application on an attorney and client scale.
Counsel for the respondent argued that a punitive cos t order was justified in
that the underlying agreement between the parties provided for a punitive cost
order,
[9] Having read the papers filed, heard counsel and considered the matter, I am
satisfied that the applicant has failed to make out a case for the relief sought ,
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particularly in respect of the service of the summons. Taking into account that
the agreement provides for a punitive cost order, I am of the view that the
respondent is entitled to an order for costs on an attorney and client scale.
[10] In the result, the following order is made:
3. The application is dismissed.
4. The applicant to pay the costs of the application on an attorney and client
scale.
____________________
NP MNGQIBISA-THUSI
Judge of the High Court
Date of hearing: 13 October 2025
Date of judgment: 20 August 2026
Appearances
For Applicant: Adv J Mr Malapane (instructed by Mokgalabone Attorneys)
For Respondent: Adv W Roos (instructed by Velile Tinto and Associates Inc)