3TA Services (Pty) Ltd and Another v Firstrand Bank Ltd t/a Wesbank (Appeal) (A32/2022 ; 69551/18) [2023] ZAGPPHC 2070 (24 August 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2023 >> [2023] ZAGPPHC 2070 | Noteup | LawCite sino index ## 3TA Services (Pty) Ltd and Another v Firstrand Bank Ltd t/a Wesbank (Appeal) (A32/2022 ; 69551/18) [2023] ZAGPPHC 2070 (24 August 2023) 3TA Services (Pty) Ltd and Another v Firstrand Bank Ltd t/a Wesbank (Appeal) (A32/2022 ; 69551/18) [2023] ZAGPPHC 2070 (24 August 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2023_2070.html sino date 24 August 2023 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) Appeal Case number: A32/2022 Court a quo case number: 69551/18 (1) REPORTABLE: NO (2) OF INTEREST TO THE JUDGES NO (3) REVISED. DATE : 24/08/2023 SIGNATURE : In the matter between: 3TA SERVICES (PTY) LTD First Appellant TERTIUS VERMEULEN Second Appellant (Defendants/Applicants in Court a quo ) and FIRSTRAND BANK LTD t/a WESBANK Respondent (Plaintiff /Respondent in Court a quo ) JUDGMENT PA VAN NIEKERK AJ (Sethusha-Shongwe AJ Concurring) BACKGROUND [1]        This is an appeal against a judgment and order of Conradie AJ dated 19 August 2020 in terms whereof the learned Judge dismissed an application for rescission of a default judgment brought before the Court a quo in terms of Rule 42(1)(a) of the Uniform Rules of Court. The Appellants launched the rescission application on the grounds that it was erroneously applied for and/or erroneously granted. [2]        First Appellant is a company with limited liability of which the Second Appellant is a director. On 21 September 2018 Respondent, a financial institution and registered credit provider duly registered and incorporated in terms of the applicable Laws of South Africa, instituted action against the two Appellants claiming inter alia repossession of the goods which are the subject of the agreement hereafter referred to and damages. The Respondent's cause of action was found on a written agreement in respect of which the following averments are made in the Particulars of Claim: “ AGREEMENT: 4.         On the 17 th day of April 2018, the Plaintiff, represented by a duly authorised employee (hereinafter referred to as the Plaintiff) and the First Defendant represented by its duly authorised representative, acting personally, entered into an Electronic Instalment Agreement (hereinafter referred to as 'Agreement'). The aforesaid Agreement was executed by means of an electronic signature as envisaged in section 13 read with section 1 of the Electronic Communications and Transactions Act 25 of 2002 . 5.         Due to lack of storage space the Plaintiff embarked on a process of systematically scanning and storing its original documentation on an imaged process on their central computer database and thereafter destroying the original agreement. Despite a diligent search the Plaintiff cannot find the original signed agreement. 6.         The agreement which is annexed hereto marked 'B' has been retrieved from the Plaintiff's central computer database as a data message and complies with the requirements of Section 14 of the Electronic Communications and Transactions Act No. 25 of 2002 . The Plaintiff accordingly requests the above Honourable Court to accept the copy attached hereto as a true copy of the original.” [3]        In paragraph 7 of the Particulars of Claim Respondent pleads that the First Appellant purchased from the Respondent a high-pressure jet steamer machine ("the goods"), duly described in the Particulars of Claim, for the purchase price of R251 792.50. It is further pleaded that First Defendant was liable to pay additional amounts being VAT, accessories and an initiation fee. Plaintiff further pleads that the goods were duly delivered to the First Defendant and in paragraph 9.1 of the Particulars of Claim it is pleaded that the total indebtedness to the Respondent by the First Applicant in terms of the agreement, with due consideration to a deposit and finance charges, amounted to R262 420.56 which is payable in 36 equal instalments of R7 289.46 payable on the same date of each successive month commencing on 7 June 2018. [4]        In paragraph 12 of the Particulars of Claim it is pleaded that the provisions of the National Credit Act do not apply to the agreement as the Applicant is a juristic person with an annual (sic) in excess of R1 million and the Second Appellant is a credit guarantee and the agreement is a "large agreement" as contemplated by the provisions of the National Credit Act 34 of 2004 (NCA). [5]        In paragraph 14 of the Particulars of Claim it is pleaded that the First Appellant breached the terms and conditions of the Instalment Sale Agreement in that payments were not maintained and was in arrears in the amount of R22 324.37 on 19 September 2019 as a result of which the Plaintiff cancelled the Instalment Sale Agreement. [6]        In paragraph 15 of the Plaintiff's Particulars of Claim it is pleaded that the Second Appellant bound himself as surety in solidum for and co-principal debtor jointly and severally with the First Appellant for the compliance of the First Appellant's payment of monies which First Appellant may from time to time owe the Respondent in terms of a written deed of suretyship and annex a copy of the alleged suretyship to the Particulars of Claim as Annexure "D". [7]        The agreement provided for a chosen domicilium citandi et executandi for First Appellant and it is pleaded in the Particulars of Claim that the Second Appellant chose that same address as his domicilium citandi et executandi. THE DEAFAULT JUDGMENT [8]        The Sheriff served a copy of the Combined Summons on both Applicants by affixing copies to the outer or principal door at the given address provided as the chosen domicilium citandi et executandi for both Applellants on 5 November 2018 and Respondent thereafter proceeded to apply for default judgment against both Appellants due to the fact that the Appellants both failed to enter an appearance to defend. [9]        On 23 November 2018 the Registrar of this Court signed a "draft order" which was attached to the application for default judgment ("the default judgment") and which reads as follows: "1.       Cancellation of the agreement; 2.         The Defendant is ordered to return to the Plaintiff the 2018 OPTIMA HIGH PRESSURE JET STEAMER with SERIAL NUMBER: D[...] & D[...]2; 3.         (sic) 4.         That judgment against the First and Second Defendants for the amount of damages, to which the Plaintiff is entitled (Prayer C to the Plaintiff's Particulars of Claim), together with interest thereon (Prayer E to the Plaintiff’s Particulars of Claim}, is postponed sine die pending the return of the goods to the Plaintiff, the subsequent determination thereof and calculation of the amount to which the Plaintiff is entitled; 5.         Payment of costs of suit in the sum of R200.00 and sheriff’s costs of R512.62." THE RECISSION APPLICATION [10]      On 31 October 2019 the rescission application was launched and Second Appellant deposed to the Founding Affidavit in support of such application, stating inter alia the following: [10.1] The application is premised thereon that Respondent was not entitled to the judgment as it was erroneously sought and granted against both Appellants on the grounds that the Summons commencing action was not "properly served" on either of the Appellants, and [10.2] The Respondent took judgment against the Second Appellant on the basis that Second Appellant bound himself as surety and co-principal debtor with the First Appellant , "... when in fact to the best of my knowledge I had never bound myself as a surety". [1] [11]      Second Appellant continued to explain that the default judgment came to his attention during the middle of September 2019. Insofar as the non-service of the Summons is concerned, Second Appellant averred that he sent an email to a representative of the Respondent on 21 August 2018 wherein he gave notice that the domicilium address is to change with immediate effect to reflect the address of his attorneys as the new domicilium address, and that he received an email on 27 August 2018 from the said representative of the Respondent who stated that such representative was unable to trace the account with the details that he had provided and requested to either furnish Respondent with the relevant account number or the registration number of the First Appellant. Second Appellant further averred that he furnished the Respondent with the account number on 27 August 2018 and attached copies of the relevant email correspondence confirming the aforesaid. [12]      Second Appellant further stated in the affidavit that, notwithstanding that the Respondent had knowledge thereof that the domicilium address had been changed, alternatively reasonably ought to have had knowledge thereof, and for reasons unknown to the Second Appellant, the Respondent elected to serve the Combined Summons at the previous domicilium address. [2] [13]      Insofar as the suretyship is concerned, Second Appellant denied any knowledge of entering into the "alleged suretyship" , and stated that, "... to the best of my knowledge I did not enter into any suretyship in respect of the instalment sale agreement ..." . Second Appellant proceeded to explain that the copy of the suretyship annexed to the Particulars of Claim did not contain his signature, that a contract of suretyship will not be valid unless it is signed by the surety, and therefore disavowed any liability in terms of the alleged suretyship relied on by Respondent in the Plaintiff's Particulars of Claim. THE APPEAL [14]      Appellants brought an application for leave to appeal on 24 August 2020 and on 17 January 2022 the Court a quo granted leave to appeal whereafter the Appellants filed a Notice of Appeal on 12 February 2022. [15]      On 3 February 2023 the Respondent filed an affidavit titled "Affidavit in re Mootness of Appeal" deposed to by a Legal Manageress and Commercial Credit Recoveries Specialist employed by Respondent. In the aforesaid affidavit the deponent stated that the Second Appellant advised the Respondent for the first time on 17 May 2021 that it has come to his knowledge that the Respondent's asset (the goods) was in possession of a third party and is accordingly no longer in the possession of the Appellants as contractually agreed. The deponent annexed correspondence from the Second Appellant to the affidavit which materially confirmed the deponent's statement contained in the affidavit. The deponent then proceeds to explain that she made various attempts to find the goods, was unable to find the goods, and that further enquiries was directed to the Appellants' attorney (whose address was cited on the correspondence from the Second Appellant to the Respondent) regarding the whereabouts of the goods, to no avail. [16]      In paragraph 9 of the aforesaid affidavit the deponent states as follows: "Given that the asset is not in the possession of the appellants or the third party, and its whereabouts cannot be located, the repossession order cannot be enforced, and if the repossession order were to be rescinded, the respondent cannot proceed with the repossession relief under the rei vindicatio or any other possessory remedy, because the asset is gone. The repossession claim has accordingly become academic. The respondent's only available remedy now lies in a damages claim for the unlawful disposal of the asset and the particulars of claim would have to be amended accordingly." [17]      In paragraph 10 of the aforesaid affidavit the deponent states: "In the circumstances, the current appeal will have no practical effect in the sense that if the appeal were to be successful and the repossession order rescinded, the repossession relief cannot be pursued further due to the missing asset." [18]      On 30 March 2023 the Second Appellant deposed to an affidavit titled "Appellants' Opposing Affidavit in re: Mootness of Appeal" wherein the Second Appellant advances various legal arguments in support of an eventual submission that the appeal has not become moot and fails to deal with any of the averments made relating to the goods which cannot be found by Respondent any longer. Considering the contents of the two affidavits it is therefore common cause that the goods cannot be found by the Respondent with the consequential result that paragraph 2 of the order in terms of the default judgment cannot be executed and has become moot. [19]      When Respondent filed its Heads of Argument for the appeal on 9 May 2023 a point in limine was raised namely that the appeal has lapsed and falls to be struck of the roll due to the Appellants having failed to file a power of attorney in respect of their appeal as provided for in Rule 49(6)(a) of the Uniform Rules of Court. On 12 May 2023 the Appellants' attorney of record served a Notice of Motion wherein condonation is sought for the failure to file a power of attorney as envisaged in Rule 7(2) of the Uniform Rules of Court at the time when the Appellants made application for a date of the hearing and in the alternative to reinstate the appeal in terms of Rule 49(6)(b) of such Rules. The Notice of Motion was accompanied by an affidavit of the Appellants' attorney of record which can be summarised as follows: [19.1] It was brought to his attention on 10 May 2023 that the Respondent alleges that the Applicant failed to file a power of attorney together with the application for a date for hearing of the appeal; [19.2] After making certain enquiries, the attorney for the Appellants could not ascertain that such power of attorney was indeed filed when application was made for the date of appeal; [19.3] The Appellants' attorney further submits that there is no prejudice to the Respondent should not-compliance of Rule 7(2) be granted and the appeal proceeds on 24 May 2023 and submits that the prospects of the appeal to be determined favour the Appellants. DID THE APPEAL LAPSE? [20]      It is common cause that the Appellants failed to file a power of attorney together with the application for a date of the hearing of the appeal in terms of Rule 49(6)(a). Such power of attorney is required in terms of the provisions of Rule 7(2). Unless the power of attorney is filed together with the application for a date of hearing, the Appellants cannot be considered to have made a written application in terms of Rule 49(6)(a) resulting in the lapsing of the appeal. [3] [21]      If an application for a date for the hearing of an appeal is not properly made such as in this instance where the Appellants failed to file the power of attorney in terms of the provisions of Rule 7(2) the appeal should be struck of the roll. [4] [22]      Appellants are entitled to seek condonation for Appellants' failure to comply with the provisions of Rule 7(2) read with Rule 49(6)(a) and seek an order that the appeal be reinstated in terms of Rule 49(6)(b) on application and upon "good cause shown" . In considering an application for reinstatement based on condoning non-compliance with the relevant rules regarding the enrolment of appeals, Holmes JA. held as follows: [5] "It is well settled that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all the facts; and that in essence it is a question of fairness to both sides. In this enquiry relevant considerations may include the degree of non-compliance with the Rules, the explanation therefore, the prospects of success on appeal, the importance of the case, the respondent's interest in the finality of his judgment, the convenience of the Court, and the avoidance of unnecessary delay in the administration of justice. The list is not exhaustive. These factors are not individually decisive but are interrelated and must be weighed one against the other; thus a slight delay and a good explanation may be held to compensate for prospects of success which are not strong." [23]      Where the attorney acting on behalf of the Appellants was remiss in following due procedure, and in relation to the issue whether an appellant should be prejudiced by his/her attorneys' incompetence, it was held by Steyn CJ. [6] : "I should point out, however, that it has not been at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the result of his attorney's lack of diligence or the insufficiency of the explanation rendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact, this Court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are". [24]      In my view the Appellants' application for reinstatement and condonation for non­compliance with Rule 7(2) should be considered against the point raised by the Respondent namely that the appeal has become moot, by considering the prospects of success on appeal, and considering the explanation provided by the Appellants' attorney for the Appellants' failure to comply with Rule 7(2). I proceed to deal therewith hereunder. APPELLANTS' PROSPECTS OF SUCCESS ON APPEAL [25]      Essentially the merits of the appeal involve two issues namely whether or not there was proper service on the Appellants and whether or not the Second Appellant bound himself as surety on the grounds as pleaded by Respondent in the Particulars of Claim. When considering the prospects of success on appeal I am of the view that it does not imply a finding whether or not the appeal should have been upheld or dismissed but an investigation whether or not the merits of the grounds of appeal favours the Appellants to the extent that the Appellants' failure to comply with any rules applicable to the prosecution of the appeal should be condoned in the interest of justice. [26]      Second Appellant stated under oath in the Founding Affidavit in support of the application for rescission that he notified a representative of the Respondent in writing that the "domicilium address" be changed to the address of his attorneys of record. Second Appellant then deposed evidence [7] to the effect that the Respondent's representative confirmed receipt of such notice by requesting the account number which was then provided. [8] Appellants then rely on Clause 18 of the agreement, a copy of which was attached to the Particulars of Claim and which reads: "18.     Addresses: 18.1    You agree that the addresses given on the Schedule to this Agreement shall be the place to which all post, notices or other communication are to be sent to you and you agree that such communication shall be binding on you. 18.2    You must notify the Seller immediately in writing of any change to your address and any new address you give must be a physical address in South Africa. If you fail to give notice of a change of address the Seller may use the address it has for you, for all purposes, even if you are no longer there." Second Appellant relies on Clause 18.2 as quoted supra , and it was submitted that the notice sent to the representative of the Respondent constituted compliance with Clause 18.2 of the agreement as quoted supra . I disagree. The clause relating to the change of an address is, on a proper construction, a clause which relates to the change of the parties' chosen domicilium citandi et executandi . The domicilium citandi et executandi nominated by a party in terms of the provisions of an agreement is a term of the agreement and cannot be changed unilaterally. The agreement attached to the Particulars of Claim contains the following clause namely: "14.     Entire Agreement: This is the whole Agreement and no changes may be made to it unless these changes are in writing and signed by both you and the Seller or are voice logged by you and the Seller." [27]      When considering the provisions of Clause 14 of the agreement as quoted supra , I am of the view that the Appellants' reliance on Clause 18.2 without consideration of the implications of Clause 14 of the agreement as quoted supra renders the Appellants' prospect of success on appeal in regards to the Appellants contention that there was no proper service of process upon the Appellants, as weak. [28]      Insofar as the Second Appellant disavowing his liability in terms of the surety is concerned, I am of the view that there is no good prospects for success on appeal. Second Appellant made no categorical denial of ever having entered into a Deed of Surety but instead states that he cannot " recall " having entered into such Deed of Surety. It is clear that the Second Appellant attempts to capitalise on the fact that the Respondent attached an unsigned copy of the surety to the Particulars of Claim. Respondent pleaded in the Particulars of Claim that this surety was digitally signed by Second Appellant simultaneously when the Second Appellant digitally signed the agreement attached to the Particulars of Claim in terms of the provisions of Section 13 read with Section 1 of the Electronic Communications and Transactions Act 25 of 2002 and it is common cause that First Appellant entered into the agreement represented by Second Appellant. [29]      Should the Respondent's point in limine namely that the appeal has become moot be upheld the appeal falls to be dismissed and it is then not necessary to consider the application for condonation and reinstatement of the appeal. I therefore deal with the Respondent's point in limine hereunder. HAS THE APPEAL BECOME MOOT? [30]      Respondent's point in Iimine that the appeal has become moot is based on common cause facts namely that the goods are not in the possession of Second Appellant any longer, cannot be found, and as a result of which paragraph 2 of the order in terms of the default judgment cannot be executed. In this regard argument advanced on behalf of Respondent can be concisely summarised as follows: [30.1] As the contract does not fall under the provisions of the NCA it is not necessary for the Court to order the cancellation of the agreement and that the agreement can be cancelled at the instance of any of the parties by notice to the other party. The fact that default judgment has been granted (even if it is to be found without proper service) therefore is of no consequence to the provisions of paragraph 1 of the default judgment order. [30.2] Paragraph 2 of the default judgment order namely "return of the goods" is an order that only affects the rights of the First Appellant and not that of the Second Appellant in his capacity as surety (if it is to be found that the Deed of Surety is enforceable against the Second Appellant) as the Second Appellant's indebtedness to Respondent is accessory to the First Appellant's indebtedness. Should the summary judgment order be rescinded it will have no practical effect because paragraph 2 of the summary judgment order cannot be executed. [30.3] On a proper interpretation of the summary judgment order, the claim for damages which Respondent instituted against both Appellants are postponed in terms of such order. The relevant prayers as contained in the Plaintiff's Particulars of Claim and as quoted in the summary judgment order does not constitute a judgment against the First Appellant or Second Appellant and Respondent will have to amend its Particulars of Claim in order to pursue any claim for damages against both Appellants on the respective causae of action as pleaded in the Plaintiff's Particulars of Claim. [31]      It was submitted on behalf of Appellants that Respondent's point in limine of mootness is premised on an incorrect interpretation of the default judgment order. The crux of the Appellants' submissions that the appeal has not become moot is contained in an affidavit titled "APPELLANT'S OPPOSING AFFIDAVIT IN RE: MOOTNESS OF APPEAL" which reads: "4.5 It appears though Respondent foils to appreciate the legal effect consequent upon the order of court granted and the fact that payment of damages was likewise ordered, the payment of which having been postponed pending the calculation of the quantum thereof. 4.6 To put it different, it appears though Respondent does not appreciate the fact that if the default judgment is not rescinded it can, as a matter of fact approach the court on the papers, as supplemented, to obtain an order in terms of which First Appellant and I will be liable to pay the proven damages. Even though we would be permitted to dispute the quantum of the damages allegedly suffered in that instance, our fate is sealed in respect to the liability to pay same as per the order of court granted on 23 November 2018." [32]      The point in limine of Respondent is found on Section 16(2)(a)(i) of the Superior Court Act 10 of 2013 which reads: “ When at the hearing of on appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.” [33]      The practical effect of the default judgment order in the context of the fact that Respondent is unable to enforce paragraph 2 of the default judgment order namely repossession of the subject matter of the agreement (" the goods ") must thus be considered insofar as it affects each of the Appellants. Every paragraph of the default judgment order must be analysed and interpreted accordingly. [34]      Paragraph 1 of the default judgment order serves to cancel the agreement. It is common cause that the agreement is not subject to the NCA [9] and cancellation is a remedy available to a party to the contract if proper grounds in terms of the agreement exists for cancellation. [10] [35]      The fact that the goods are not in possession of First Appellant and payments were not effected in terms of the agreement are grounds for Respondent to cancel the agreement and it is not for the Court to cancel the contract. Paragraph 1 of the default judgment order is thus superfluous and no practical effect flows from rescinding that part of the order. [36]      The impracticality of rescinding paragraph 2 of the order has been dealt with supra and it is matter of logic and common sense. [37]      To determine the practical effect of paragraph 4 of the default judgment order, the order must be interpreted to determine the manifest purpose of the order. Interpretation of the order must be considered in the context of the language used, the purpose of the order, and a sensible meaning must be ascribed to it. [11] [38] In casu paragraph 4 of the order commence with the words "That judgment against the First and Second Defendants for the amount of damages, to which the Plaintiff is entitled ... is postponed sine die ...". The use of the word " Judgment " in the context of the default judgment order for "damages to which the Plaintiff is entitled" implies that the Court which will adjudicate such issue will have to find that Respondent proved a sustainable cause of action against both Appellants to claim damages to which Respondent may be entitled to. The logical implication thereof is namely that in respect of First Appellant the damages will have to be determined by quantifying such damages which flows as a result of Respondent's cancellation of the contract and the fact that the goods cannot be repossessed. This cause of action is found on the contract. Considering the aforesaid a rescission of paragraph 4 of the default judgment order will not have any practical effect as far as First Appellant is concerned, as First Appellant did not dispute its liability in terms of the contract, has no defence against the Respondent's cancellation of the contract, and therefore has to face the sequelae of Respondent's cancellation of the contract whether the summary judgment order is rescinded or not. [39]      Similarly, in order for Respondent to obtain a ''judgment " for any " damages " from the Second Appellant, Respondent will only be able to claim any such amount from the Second Appellant after proving a valid cause of action against Second Appellant which in this instance is found on an alleged contract of suretyship, and which is further subject to a legally enforceable indebtedness by First Appellant as the principal debtor to Respondent. [40]      In the event that the Appellants, in their respective capacities as Defendants in the action, set up any valid defence to the respective causae of action against the two Appellants the Respondent will not be able to obtain the ''judgment " which was postponed sine die in terms of paragraph 4 of the default judgment order. [41]      On a proper interpretation of paragraph 4 of the default judgment order, with regard to the specific inclusion of the relevant portions of the Plaintiff's Particulars of Claim in the action that were incorporated into paragraph 4 of the default judgment order, it is clear that Respondent's causae of action against both Appellants are not pleaded as a finality, but in anticipation of the return of the subject matter of the agreement. Counsel for Respondent correctly pointed out that, in the light of the fact that the goods cannot be repossessed, the claims will have to be amended. [42]      Considering the aforesaid, I am of the view that it will have no practical effect that paragraph 4 of the default judgment order be rescinded. There are also no exceptional circumstances disclosed by Appellants why the order for costs in terms of paragraph 5 of the default judgment order should be considered in this respect. [12] [43]      Considering the aforesaid the point in limine that the decision to uphold the appeal will have no practical effect must be upheld. [44]      Where an application for condonation and reinstatement of the appeal is dismissed on the grounds that the prospects for success do not favour the appellant, it would normally lead to the result that the appeal is struck of the roll. In this instance such an order will not be appropriate as the appeal would have no practical result and accordingly the appeal should be dismissed. Counsel for Respondent submitted that Appellants should be penalised with a punitive order for costs on the basis that Appellants were timeously warned of the point in limine regarding mootness of the appeal. The issue of mootness relates to an interpretation of the default judgment order and Appellants were entitled to have that issue determined. There is no reason to grant a punitive order for costs against Appellants. [45]      In the result it is therefore ordered: [45.1] The appeal is dismissed; [45.2] Appellants are to pay the costs of the appeal, jointly and severally, the one paying the other to be absolved. P A VAN NIEKERK ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA N C SETHUSA-SHONGWE ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA MABUSE J (dissenting) [46]      I have read the judgment of VAN NIEKERK AJ in which Sethusha-Shongwe AJ concurred (the majority judgment) and gratefully adopt their thorough exposition of the facts and their understanding of the law. I do not think that the judgement adequately addresses what I consider to be the central issue that presents itself in this case. I am also not in full agreement with the order that it proposes. I disagree however, that the appeal should be dismissed on the point of mootness. I hold a different view regarding the appeal against the judgment and order of the court a quo and my reasons appear from my judgment below. [47]      This matter came before us with leave of the court a quo as an appeal against the judgment and order of Conradie AJ in which she dismissed, on 19 August 2020, the Appellants' application for rescission of a default judgment granted against them on 23 November 2018. THE PARTIES [48]      The first Appellant, 3TA Services Pty Ltd, is a company with limited liability duly registered as such in terms of the company statutes of this country. At the material time when the combined summons was issued on 21 September 2018, its business address was reflected as Braker Performance, Corner New and Munroe Roads, Midrand, 1686. This address served at the time as the First Appellant's chosen domicilium citandi et executandi . (domicilium). For purposes of brevity, it will be referred to as "the company". [49] The Second Appellant, Mr Tertius Vermeulen, is an adult male of the same address and chosen domicilium as the First Appellant. For purposes of convenience, the Second Appellant will be referred to as "Mr Vermeulen". [50]      For purposes of convenience the company and Mr Vermeulen will be jointly referred to as "the Appellants." [51]      The Respondent, Firstrand Bank Limited, t/a Westbank, is an authorised financial services provider and a company duly registered as such in terms of the company laws of the Republic of South Africa, with its offices situated at 1 E[...] Road, Fairlands, Randburg, Johannesburg. I will refer to the Respondent as "Westbank", for purposes of convenience. THE BACKGROUND [52]      On the 17 th day of April 2018, in a written Agreement which was electronically executed, the Westbank sold to the company which bought from Westbank a 2018 Optima High­Pressure Jet Steamer with serial numbers D[...] and D[...]2 ("the GOODS") for the purchase price of R251, 792.50. [53]      It was agreed by the parties, inter alia, that: [53.1] the appellants would pay to Westbank on the date on which the agreement was signed a deposit of R42, 000.00. This amount was indeed paid; [53.2] the balance of R214, 645.01, the principal debt, would be paid by the company in an amount of R47, 775. 55 in respect of finance charges at the rate of 13% NACM fixed over a period of 36 months; [53.3] the total amount of the agreement was therefore R262, 420 which was payable by the appellants to Westbank as follows: [8.3.1] 36 equal instalments of R7,289.46 payable each month and on the same day of each successive month thereafter, commencing on 7 June 2018; [8.3.2] Westbank would remain the owner of the GOODS until the Appellants had paid all the amounts and had complied with all their obligations in terms of the Agreement. [54]      The Appellants would pay to Westbank on or before the due date; [8.4.1] the instalments stipulated in the Agreement; [8.4.2] all other amounts that were payable or became payable, in terms of the Agreement. [55]      In the event of the Appellants breaching any term of the Agreement, all which terms were material, Westbank would be entitled to immediately cancel the Agreement; obtain possession of the Goods; and recover from the company pre-estimated liquidated damages, the total amount payable but not yet paid, less the value of the vehicle as at delivery thereof to Westbank. [56]      The company furthermore agreed that in the event of it having to change its domicilium it would immediately notify Westbank in writing. [57]      The Appellants breached the terms and conditions of the Instalment Sale Agreement in that they failed to maintain payments and on 19 September 2018 were in arrears in the total sum of our R22,324.37. Because of such failure, Westbank cancelled the agreement. [58]      On 21 September 2018, Westbank issued summons against the Appellants in which it claimed: [58.1] cancellation of the agreement; [58.2] repossession of the GOODS; [58.3] damages, being the difference between the value of the GOODS upon repossession and the balance outstanding under the Agreement due to Westbank by the Appellants; [58.4] costs of suit on attorney and client scale; [58.5] interest calculated on prayer C at the rate of 13% NACM fixed as from date of summons to date of payment, calculated on the outstanding balance from time to time. [58.6] further and or alternative relief. [59]      Westbank caused copies of the summons to be served on the Appellants on 5 November 2018 at Brater Performance, corner N[...] and M[...] Roads, Midrand, the chosen domicilium in terms of clause 18.1 of the Agreement. [60]      According to the combined summons, the Appellants had; [60.1] 10 days from the date on which copies of the summons were served upon them to deliver their notices of intention to defend, if they disputed Westbank's claim, on Westbank; and [60.2] thereafter, within 20 days after filing their notices of intention to defend, to file with the registrar and serve upon Westbank, their pleas, exceptions, notices to struck out with or without a counter- claim. [61]      The Appellants failed to deliver their notices of intention to defend Westbank's claim within the period of 10 days of service of the summons upon them and consequently on 22 November 2018 Westbank filed with the registrar of the court its application for default judgment. In the application for default judgment, it was specifically stated that: "12.1   summons was served on the First and Second Appellants on 5 November 2018; 12.2    the dies induciae (10) days expired on 19 November 2018; 12.3    the First and Second Defendants did not enter an appearance to defend the matter." Based on the aforegoing, Westbank asked the registrar to grant it judgment by default. [62]      The registrar duly granted Westbank default judgement on 23 November 2018, for the following order; "[16.1] Cancellation of the agreement; [16.2] The defendant is ordered to return to the plaintiff the 2018 OPTIMA HIGH PRESSURE JET STEAMER with SERIAL NUMBERS D[…] and D[...]2; [16.3] That the judgment against the First and Second Defendants for the amount of damages, to which the plaintiff is entitled (Prayer C to the Plaintiff’s Particulars of Claim), together with interest thereon (prayer E to the Plaintiff’s Particulars of Claim), is postponed sine die pending the return of the GOODS, to the Plaintiff, the subsequent determination thereof and the calculation of the amount to which the Plaintiff is entitled. [16.4] Payment of costs of suit in the sum of R200.00 and the sheriff's costs of R512.62" [63]      Armed with the registrar's granted default judgment, Westbank caused to be issued a Writ of Delivery of the Goods in terms of which the Appellants were ordered to deliver to Westbank the GOODS and, in the event of failure, authorised the sheriff to take the said Goods into his possession wherever he found them and placed them in the possession of Westbank. [64]      The Writ of Delivery of the Goods was sent to the sheriff for service. On 4 October 2019 the sheriff served the said Writ and the Court Order upon the Appellants by affixing copies thereof to the outer or principal door at Brater Perfomance, corner N[...] and M[...] Roads, the said address being the chosen domicilium citandi et executandi , as no other service was possible after the diligent search and enquiries were made at the given address. Another return of non-service, this time of the Writ of Delivery of Goods, was furnished by the sheriff. In this return of non-service, the sheriff had reported that on 20 September 2018 the Writ could not to be executed as the premises at Brater Performance, N[...] and M[...] Roads, Midrand, 1685 were locked and empty. The present whereabouts of the debtor were unknown. [65]      On 31 October 2019, the Appellants brought an application for the rescission of the said default judgement. The application was brought on the bases that Westbank was procedurally not entitled to the judgment and furthermore that the judgment was erroneously sought and erroneously granted against them, the Appellants, for the following reasons: [65.1] copies of the summons commencing the action had not been properly served on either of the Appellants; [65.2] Westbank took judgment against Mr Vermeulen on the basis that he had bound himself as surety and co-principal debtor with the company, when in fact to the best of his knowledge, he never bound himself as surety. [65.3] no proper service of the copy of the summons. [64.4] according to Mr Vermeulen neither he nor the company had any knowledge that the respondent had obtained default judgment against them. He only learned of the default judgment when their attorneys contacted him during or about the middle of September 2019 and informed him that their office had received a warrant for the delivery of goods from Westbank's attorneys; [65.5] he had no knowledge of such judgment. Upon hearing of it, he instructed their attorneys to investigate the matter and establish how the default judgement was granted against them; [65.6] a messenger from the attorneys' office was sent to the court to obtain copies of the relevant court file. From these records their attorneys were able to confirm that indeed Westbank had obtained default judgment against the Appellants and against him in his personal capacity; [65.7] a consultation was scheduled with their attorneys for 1 October 2019. During the consultation, he discovered that; [65.7.1] Westbank's attorneys had caused copies of the summons to be served at their old domicilium even though he had, approximately two months earlier and in writing, notified Westbank of the change of the Appellants' domicilium address; and, [65.7.2] it transpired further that Westbank had obtained judgment against him in his personal capacity on the grounds of an alleged suretyship when he did not sign or conclude any suretyship on behalf of the company. NOTIFICATION OF CHANGE OF DOMICILIUM [66]      He testified further that on or about 21 August 2018 he addressed an email to a certain Tshoarelo Litheko (Tshoarelo). To the best of his belief Tshoarelo was a representative of Westbank. To his affidavit was attached a letter in which he gave notice of change of the Appellants 'domicilium address. It was attached as Annexure "C" to his founding affidavit. In terms of Annexure "C", he gave notice that the domicilium address was to change immediately to reflect the address of their attorneys of record, namely, Machobane Kriel Inc, 1[…] L[…] Road, Pretoria. [67]      Annexure 'C' was addressed to "Westbank; House of WestBank, Fairlands, Gauteng" . It was dated 21 August 2018 and was headed: CHANGE OF DOMICIIIUM ADDRESS. It stated as follows: "Kindly take notice that 3TA Services (Pty) Ltd/Brater Performance, (Pty) Ltd, herewith give notice of change of domicilium address to be changed with immediate effect to: c/o Machobane, Kriel Inc 1[…] L[…] Road, Pretoria. Kindly acknowledge receipt hereof. Yours Faithfully T Vermeulen." [68]      There is no doubt that the said Tshoarelo received the relevant email and was therefore aware that the Appellants gave Westbank written notice of their new domicilium . On 27 August 2018 the said Tshoarelo responded to this email. She wrote back and informed Mr Vermeulen that she was unable to identify the relevant matter to which the said email related. She required further details to enable her to do so. She pointed out that she required either a WestBank account number or the registration number of the company. [69]      Shortly after he had received the response from Tshoarelo, but on the same date of 27 August 2018, he responded to the email from Tshoarelo and furnished her with Westbank's account number, to wit, 8[...]. He simply wrote the said account number readably on the same email he had received from Tshoarelo and sent the email back to Tshoarelo. Tshoarelo never complained about not receiving the required details thereafter nor acknowledged receipt of the details. [70]      A copy of Tshoarelo's response as well as Mr Vermeulen's reply is attached to the founding affidavit as Annexure "D". It is Mr Vermeulen's case that, notwithstanding the fact that Westbank had knowledge thereof that the Appellants had changed their domicilium address in writing and had given Westbank notification thereof or alternatively ought to have had reasonable knowledge thereof, for inexplicable reasons, Westbank elected to have the copies of the combined summons served at the Appellants' previous domicilium . [71]      According to Mr Vermeulen, approximately a period of a month had elapsed from the date on which he had given notice of the change of the domicilium to the date on which the summons commencing action was issued on 21 September 2018 and more than two months had elapsed before the sheriff purportedly served copies of the summons by affixing them to the door or principal door of the old domicilium address on 5 November 2018. THE APPELLANTS WERE NOT AWARE OF THE ACTION AGAINST THEM [72]      Because of the fact that copies of the combined summons were served at an address which was not the Appellants' chosen domicilium neither of them was aware of the action being brought against them, which exercise defeated the purpose of the summons, which is to give notice to a litigant of the proceedings and to bring it to the attention of the parties who dispute the claim of the other party, if they wish to defend. [72.1] The common law position in this country is that if you are being sued, either by way of an action or application, the summons or notice of motion must be served on you either in accordance with the rules of court or, if the parties have agreed on a manner of service, in terms of the agreement. The principle of law is that: "It is the cornerstone of our legal system that a person is entitled to notice of legal proceedings instituted against him/her." In this regard see Steinberg v Cosmopolitan National Bank of Chicago 1973 (3) SA 885 (RA) 8928-C. [72.2] Similarly, in Dada v Dada 1977 (2) 287 at 288C-E , this Division, as per Nicholas J, had the following to say: "When an action has been begun without due citation of the Defendant, the subsequent proceedings are null and void, and any judgment given is of no force or effect whatsoever ....... Upon proof of invalidity on this ground, the decision may be disregarded without the necessity of formal order setting it aside ............. Nevertheless, when an action has been begun without due citation, the Defendant has a right to have the proceedings set aside." (Of course, the underlined part of the citation is not or is no longer part of our law. A fruitful discussion of the current law relating to the underlined paragraph is contained in the Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 [CC] at paragraphs [178-199]). I do not intend dealing with that underlined paragraph in this judgment. [72.3] Failure to cause copies of the summons to be served on the Appellants constitutes a denial of their fundamental right and a violation of the principle of audi alteram partem. [73]      The founding affidavit of Mr Vermeulen was supported by the confirmatory affidavit of one Cain Charles Dawson (Mr Dawson), at the time, a male candidate attorney employed at the offices of the Appellants' attorneys. THE ANSWERING AFFDAVIT [74]      Based on the answering affidavit of one Sonia Sonia Viljoen (Ms Viljoen), an adult Manageress Specialised Collections, employed as such in the Legal Recovery Services, Department Westbank, Westbank opposed the Appellants' application for rescission. [75]      According to Westbank's answering affidavit, the Appellants raised two grounds on which the judgment for GOODS should be rescinded, namely: [75.1] non-service of the copies of the summons; and [75.2] Mr Vermeulen denies that he entered the suretyship agreement as alleged; [75.3] in her affidavit Ms Viljoen submits that to succeed with their application for rescission, the Appellant must raise a bona fide defence against the claim for the return of the goods to Westbank and they must explain their failure to enter an appearance to defend Westbank's claim; [75.4] it is Westbank's case that the Appellants have failed to provide the court with a bona fide defence. The company has failed to deny that it is lawfully indebted to Westbank; [75.5] with reference to the Appellants' change of domicilium address, Ms Viljoen pleaded that: "Save to note that annexure "C" attached to the founding affidavit was addressed to one Litheko together with her reply, it is respectfully submitted that the Appellants failed to duly notify the Respondent of the change of address as contemplated in the Agreement." At the end of the answering affidavit Westbank submitted that the default judgement granted on 23 November 2018 should not be rescinded. THE APPEAL [76]      The application for rescission of the default judgment was brought in terms of rule 42 (1) (a) of the Uniform Rules of Court. According to the decision of Theron NO v United Democratic Front and Others 1984 (2) SA 532 CPD at p.536D-E : "Rule 42 (1) entitles any party affected by a judgement or order erroneously sought or granted in his absence, to apply to have it rescinded. It is a procedural step designed to correct an irregularity and to restore the parties to the position they were in before the order was granted. The Court's concern at this stage is with the existence of an order or judgement granted in error in the applicant's absence and, in my view, it certainly cannot be said that the question whether such an order should be allowed to stand is of academic interest only. In any event it is very 'doubtful' whether it is necessary to establish that a reversal would confer a benefit upon the applicant". The judgment expressly sets out the purpose of rule 42(1), the circumstances under which such an application can be brought and what should be considered at the hearing of such application. It also emphasizes that a judgment granted erroneously in the absence of an affected party cannot stand. [76.1] The Court a quo pointed it out, quite correctly so, that the battlefield between the parties was whether the service of the summons on the Appellants was regular or not. The crucial question before us was therefore, whether the Court a quo was correct in its ruling that service of copies of the summons upon the Appellants was proper. The court a quo , having stated that whether Litheko Tshoarelo was in the employ of Westbank, Mr Vermeulen did not follow up with the office or with Litheko Tshoarelo whether she managed to find the correct account number. Here I disagree with the court a quo . There was no duty on Mr Vermeulen to establish whether Tshoarelo had been able to find the relevant account. I will deal with this statement by the court a quo in detail later in the judgment. What is of great importance with the court a quo's remark is that it acknowledged that Litheko Tshoarelo was a representative of Westbank. [77]      The court a quo was correct in its finding that the judgment that was sought to be rescinded had nothing to do with the monetary claim by Westbank. I will therefore not deal with this issue any further, although it is one of the reliefs that the Appellants sought on the basis that it was erroneously sought. It was never granted against either of the Appellants. It will be recalled that the issue regarding damages was postponed sine die. [78]      The court a quo then made a finding, without furnishing any reasons, and furthermore without analysing the evidence of the Appellants, and without any reference to the parties' versions, on service upon the Appellants of copies of the summons that: "So, I find that there was proper service on at least the first applicant of the summons and that the second applicant as representative of the first applicant did not follow upon and ensure that his attempt to change his address was properly effected." In my view, the court a quo erred in this regard for there was no duty on Mr Vermeulen to ensure that his attempts to change his address were properly effected. At any rate, sufficient proof exists that there was efficient email communication between Tshoarelo and Mr Vermeulen. Furthermore, the court a quo erred when it made that finding. This is so because there was no factual basis for concluding that there was proper service of copies of the combined summons on the Appellants. Westbank tendered no evidence in this regard. [79]      On that basis the court a quo dismissed with costs, the Appellants' application for rescission. Against that decision, the Appellants now appeal. [80]      The appellants thereafter lodged an application for leave to appeal. The court a quo gladly granted the Appellants, on 17 January 2022, leave to appeal to the Full Court of this Division. That is how this appeal came before us. The crucial question that this court must determine is whether the court a quo was correct in ruling that service of the copies of the combined summons on the Appellants was regular. The starting point is, if the fact that the copies of the combined summons were served improperly at the Appellants' old domicilium had been placed before him at the time he considered the application for default judgment, i.e., if he knew that copies of the combined summons were served at a place which was not the Appellants' domicilium, would the registrar have granted the default judgment, as he did? If the answer is yes, then the judgment may stand but if it the answer is no, it follows that the judgment must be rescinded. THE EVALUATION [81]      As regards the application for rescission, I pointed out in paragraph [27.1] above that the court a quo was aware at all material times that the Appellants had brought their application for rescission of the default judgment in terms of rule 42(1)(a) of the rules. The said rule states as follows: "42(1) The court may, in addition to any other powers it may have, mero motu or upon application of any party affected, rescind, or vary- (a)       an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby." [82]      I have already pointed out in paragraph [13] supra that Westbank had, despite having been notified in writing of the change of address, caused copies of the combined summons to be served at a place that was not the Appellants' chosen domicilium . There was therefore no proper service of the summons on the Appellants. As there was no proper service of the combined summons on them, the Appellants were therefore not notified of the proceedings against them. In the circumstances, Westbank was therefore not entitled to the judgement. Accordingly, the Respondent erroneously sought the default judgment, and the judgment was erroneously granted. [83]      Clause 18.2 of the Agreement states that: "You must notify the Seller immediately in writing of any change to your address in South Africa... If you fail to give notice of a change of address the Seller may use the address it has for you for all purposes even if you are no longer there." It is the Appellants' case that they have complied in full with the requirements of clause 18.2 of the Agreement, while the Westbank contends that the Appellants have not. Westbank contends that on failure by the Appellants to comply with the provisions of clause 18.2, it was entitled, in terms of the same clause, to cause copies of the summons to be served upon the Appellants at their old domicilium address. I disagree with Westbank. [84]      In paragraph [20] supra , Mr Vermeulen testified about how he went about notifying Westbank, in writing, of the change of the Appellants' domicilium . In the first place, I agree with the finding by the majority judgment that the domicilium citandi et executandi nominated by a party in terms of the provisions of an agreement constitutes a material term of the agreement. However, I disagree with their contention that "and (it) cannot be changed unilaterally". In fact, it was neither Westbank's case nor its complaint that the Appellants acted unilaterally by changing or attempting to change their domicilium address. Moreover, the court a quo did not dismiss the application for rescission on the basis that the change of address was done unilaterally or without any consent of, or corporation with, Westbank. The majority contends that to be effective, the notice of change of the domicilium had to be signed by, or agreed to, by both parties. It was, according to them, not lawful for the Appellants to unilaterally change their domicilium without the consent or corporation of Westbank. I disagree. This is not correct. Clause 18.2 does not require the consent or corporation of Westbank. It does not even say so. It only requires the Appellants to: [84.1] immediately notify Westbank; [84.2] the notification must be in writing; [84.3] the new address must be a physical address; and, [84.4] the new address must be in South Africa. According to my understanding, it was enough if the appellants gave notice of change of their domicilium as directed in clause 18.2 of the Agreement. In my view, the Appellants have complied fully with the provisions of clause 18.2 of the Agreement. I agree with the Appellants' counsel argument that when one peruses the terms and conditions of the Agreement to ascertain the procedure agreed upon to effect a change of address, it is evident that no other steps or procedure was agreed upon. She made a submission that Westbank's submission that the Appellants did not give notice of the change of their domicilium, should be dismissed. [85]      I have set out in paragraphs [19] and [20] supra how Westbank responded to paragraph [14] supra. I have also pointed out that the court a quo made a finding that the Appellants were properly served with copies of the combined summons and, having made that finding, gave no reasons for its finding. The court a quo could not support this finding by any reference to the evidence before it. When a court makes a finding, we look at the reasons that the court gives, in other words, the reasons that underpin such a finding. These reasons constitute the basis upon which the finding is made. There must be a relationship between the reasons and the findings. One cannot make a finding without a foundation. In this case, the question is: how did the court a quo arrive at the finding that the Appellants were properly served with copies of the summons, without any reasons? [85.1] Judges furnish reasons in almost all their judgments. This is a normal incident of the judicial process. An obligation has been placed on the Judges' shoulders to explain how, and why, a particular decision has been reached. That duty finds its genesis in the common law. A better explanation why Judges give reasons was given by McHugh JA in Soulemezis v Dudley (1987) 10 NSWLR 247 at 279 when he had the following to say: "The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord Macmillan has pointed out, the main object of a reasoned judgement "is not only to do but" to seem to do justice" ................ Thus, the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said ([In Defence of Judicial Candor" [1987] 100 Harv L Ref 731 at 737): "A requirement that judges give reasons for their decisions-grounds of decision that can be debated, attacked, and defended- serves a vital function in constraining the judiciary's exercise of power." Thirdly, under the common law of adjudication, courts not only resolve disputes-they formulate rules for application in future cases…Hence the giving of reasons enables practitioners, legislatures, and member of the public to ascertain the basis upon which like cases will probably be decided in the future". [85.2] In Osmond v Public Service Board of NSW (1984) 3 NSWLR 447 at 467-70 , President Kirby explained the benefits of a duty to provide reasons as follows; "First, it enabled the recipient to see whether any appealable or reviewable error had been committed, thereby informing the decision whether to appeal or to let the matter lie. Second, it answered the frequently voiced complaint that good and effective government could not win support or legitimacy unless it was accountable to those whose rights it affected. Third, the prospect of public scrutiny would provide officials with a disincentive to act arbitrarily. Fourth, the discipline of giving reasons could make decision-makers more careful, and rational. Finally, the provision of reasons could provide guidance for future cases". With reasons, a litigant can decide whether to launch an appeal against a decision of a Judge or to let a matter just lie. A decision is consequently flawed if it is not supported by any reasons. [86]      In my view, Westbank's response to the Appellants' version is hollow and insufficient. [86.1] Miss Sonja Sonia Viljoen, the deponent to the answering affidavit, cannot deny the exchange of correspondence between Mr Vermeulen and Westbank. She has a smattering of Annexure "C" and its contents. Annexure "C" makes it evidently clear that initially it was from Litheko Tshoarelo to t[...] . From t[...] to Litheko Tshoarelo and furthermore that it dealt with: ADDRESS CHANGE; [86.2] in the second place, Ms Viljoen could not deny that Annexure "C", in its entirety, is sufficient proof that whatever email Mr Vermeulen sent to her, Tshoarelo received it and that whatever email Tshoarelo sent to him, Mr Vermeulen received it. This was proof of the efficacy of the communication method between Mr Vermeulen and the said Tshoarelo; [86.3] thirdly, she could not deny that Annexure "C" was a response in which Tshoarelo sought more information or more details of the relevant West bank account number from Mr Vermeulen; [86.4] in the fourth place, she was unable to dispute that the account number 8[...] was the correct account number Tshoarelo was looking for. This account number appears, after all, on all the documents relating to the Agreement filed in this matter. [86.5] in the fifth place, the Respondent could not deny that originally Annexure "C" was sent by Tshoarelo to t[...] . and that the message that appeared on the original email from Tshoarelo read as follows: "Please be advised that we are unable to trace account with the information on the attached letter. May you kindly forward your Westbank account number/company registration number to enable us to assist. Regards Tshoarelo". Just by reading this message, it should have become clear that there had been communication between Tshoarelo and Mr Vermeulen about change of address and that for that reason Tshoarelo required more information about the relevant account name; [86.6] sixthly, Westbank could not deny that the account number 8[...]2 was provided by Mr Vermeulen to the said Tshoarelo at the request of the said Tshoarelo; [86.7] in the seventh place, Ms Viljoen deliberately failed to contact Tshoarelo on the telephone number 0[...] appearing at the bottom of Annexure "C" after: "Regards Tshoarelo". She failed to investigate the allegations made by Mr Vermeulen when by using the telephone number 0[...]2, she could and should have done so; [86.8] in the eighth place, which is of paramount importance, Ms Viljoen could not dispute that the said Tshoarelo was the representative of Westbank, despite Mr Vermeulen having pertinently made such an allegation. There exists no valid reason, in my view, to think that Mr Vermeulen could have snatched the name of Tshoarelo from a hat. There must have been a good reason why Mr Vermeulen communicated with Tshoarelo, and not Ms Viljoen; [86.9] in the ninth place, Westbank failed to obtain an affidavit from the said Tshoarelo about the allegations of change of address despite it being mentioned by Mr Vermeulen that she was the representative of Westbank and notwithstanding clear evidence that Tshoarelo was Westbank's representative who communicated on this issue of change of domicilium with Mr Vermeulen. If she was not available, for one or the other reason, there was a duty on Westbank to disclose it to the court. As it is now, Ms Viljoen has placed unsubstantiated and unfounded allegations before the Court. Westbank has failed to explain to this court why, in the face of the contents of Annexure "C" and furthermore in the face of pertinent allegations by Mr Vermeulen that Tshoarelo was Westbank's representative, it felt necessary to use the affidavit of Ms Viljoen and not of Tshoarelo, only in opposing the application for rescission, knowing that Ms Viljoen was not involved with Annexure "C"; [86.10] in the tenth place, there is no evidence by Ms Viljoen that she searched through the emails received by Tshoarelo and that during such a search she was unable to find any emails exchanged between Tshoarelo and Mr Vermeulen; [86.11] in the eleventh place, Ms Viljoen has placed no evidence before this court or the court a quo indicating that when Tshoarelo received any emails, such emails were also received and seen by all the representatives of the Westbank and that, in that way, she has seen or not seen any emails from Mr Vermeulen. This is not her case. This is also not the reason the court a qua gave when it made its finding that "service of the combined summons on the Appellants was proper". [87]      It is, in my view, extremely difficult to see how Ms Viljoen was able to make a statement that the Appellants had not notified West bank about the change of address. I am of the view that Ms Viljoen's evidence lacks merit. It is unsubstantiated and consists of unfounded allegations. It lacks a proper foundation upon which a finding can be made. She has placed no evidence before the Court. Moreover, in terms of the rules that govern the making of the answering affidavits, she was required to set out which of the allegations by Mr Vermeulen she admitted and which allegations she denied and to set out Westbank's version. She has failed to do so. In the absence of such proper foundation or lack of objective facts upon which a finding should be made, I have concluded that Ms Viljoen statements serve no material purpose. As I pointed out earlier, she has simply made a bare denial. For this appeal, it must be assumed that the allegations contained in Mr Vermeulen's founding affidavit and the supporting affidavit of Mr Dawson are correct. On that assumption, the default judgement was null and void ab initio . [88]      Based on the aforegoing, I am satisfied that the letter dated 21 August 2018, read together with Annexure "C", constituted a complete compliance by the Appellants with the provisions of clause 18.2 of the Agreement. I, therefore, find that Westbank was formally advised of the Appellants' change of domicilium in time and that service of the copies of the combined summons at the Appellants' old domicilium was an improper service. Westbank sought default judgment erroneously and the judgment was granted erroneously. The registrar would not have granted the default judgment if all these facts had been placed before for him. BONA FIDE DEFENCE [89]      It is Westbank's case that, to succeed with the application for rescission based on rule 42 (1)(a), it was incumbent upon the Appellants to prove or show the court that they have a bona fide defence. This is not correct. It is not the law in this country. In an application for rescission of judgment in terms of rule 42(1)(a), the applicant does not have to prove any bona fide defence. It is enough if he satisfies the court that: [88.1] It is enough if the applicant proves one of the jurisdictional facts set out in rule 42(1) of the rules. In this case, the Appellants must show that the judgement was obtained erroneously. A judgment is erroneously obtained because there was a violation of the basic rules in the steps leading to the judgment that was erroneously obtained. It is erroneously sought because, with the full knowledge of such violation, the party that sought the judgment should not have taken that step. A court cannot standby idly and watch at the violation of basic rules of service of court documents. If it were to allow such a judgment to stand, it would be endorsing an illegality. A court may not perpetuate an illegality; [89.2] secondly, the applicant must prove that the judgment was obtained in his absence. [90]      The following principles, as set out in Kgomo v Standard Bank of South Africa 2016 (2) SA 184 (GP) par. [11] , govern the rescission of judgments under rule 42(1)(a): [90.1] the rule must be understood against its common law ground; [90.2] the basic principle of common law is that once a judgment has been granted, the judge becomes functus officious , but subject to certain exceptions of which rule 42(1)(a) is one; [90.3] the rule caters for a mistake in the proceedings; [90.4] the mistake may either be one which appears on the record of proceedings or one which subsequently becomes apparent from the information made available on an application for rescission; [90.5] judgment cannot be said to have been granted erroneously in the light of the subsequently disclosed defence which was not known or raised at the time of the default judgment; [90.6] the error may arise either in the process of seeking the judgment on the part of the applicant for default judgment or in the process of granting default judgment on the part of the court; [90.7] the applicant for rescission is not required to show good cause for the rescission as contemplated in rule 31(2)(b). [90.8] in De Wet and Others v Western bank Ltd 1977(4) SA 770 , Melamet J, cited with approval the following passage from Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd 1977 (2) SA 576 at 578F: “ In the result I conclude that it is not a requirement for rescission under Rule 42(1)(a) that an applicant need, in addition, establish good cause for such rescission.” [91]      The requirements set out above are the only test that an applicant for rescission of a default judgement under rule 42(1)(a) of the rules must satisfy. The discretion to grant rescission of a default judgment lies with the Court. This principle is expressed as follows in Theron NO v United Democratic Front and Others 1984(2) SA 532 (CPD) at p.536F-G : "The court has a discretion whether or not to grant an application for rescission under rule 42(1). In my view, the Court will normally exercise that discretion in favour of an applicant where, as in the present case, he was, through no fault of his own, not afforded an opportunity to oppose the order granted against him, and when, on ascertaining that order has been granted in his absence, takes expeditious steps to have the position rectified." In my view, it is just and equitable that the relief sought by the Appellants be granted in terms of rule 42(1) of the rules. MOOTNESS [92]      The order that the majority proposes is not the result of the appeal the Appellants had bargained for. The matter before us is an appeal against the Court a quo's refusal to rescind the default judgement. Dismissal of the appeal without making an order on the appeal against the order of the court a quo, as proposed by the majority, will disadvantage the Appellants, and cause them to cry wolf. They will feel that they did not receive a fair hearing. [93]      There is an event that supposedly intervened in the interim. The event arises from the fact that Westbank, the owner of the Goods, claims that the Goods have now been lost and cannot be found. In her affidavit concerning the Goods, Ms Viljoen, stated that "the appeal has become academic in the sense that an order on appeal will have no practical effect. I have been advised that it is necessary and essential that these facts be placed before the Full Court so that the court has all the relevant facts and information before it at the time of the hearing". [94]      After giving a background, the said Ms Viljoen continued in the same affidavit and stated that: "The respondent has been unable to locate and recover the asset to date, despite diligent attempts at tracing same. The asset cannot be located and has been disposed of by the Appellants and seemingly by the third-party and or Billy." [95]      The said Ms Viljoen continued further and stated that: "Given that the asset is not in the possession of the Appellants or the third-party and its whereabouts cannot be located, the repossession order cannot be enforced and if the repossession order were to be rescinded, the respondent cannot proceed with the repossession relief under the rei vindicatio or any other possessory remedy, because the asset is gone. The repossession claim has accordingly become academic. The respondent's only available remedy lies in damages claim for the unlawful disposal of the asset and the particulars of claim would have to be amended accordingly. In the circumstances, the current appeal will have no practical effect in the sense that if the appeal were to be successful and the repossession relief cannot be pursued further due to the missing asset." [96]      In the same affidavit Ms Viljoen stated that in the circumstances of the mootness of the missing equipment, she made an offer to the Appellants that each party should pay their own costs in relation to the appeal and that the Appellants would be absolved from the court orders. The Appellants rejected the offer and according to them made an unrealistic offer. Finally, Ms Viljoen states that the Appellants have chosen to ignore the fact that the appeal is moot and have rejected the counterproposal. [97]      On the basis of the aforegoing, the majority judgment has found that the appeal is moot and that it should be dismissed. [98]      The argument advanced on behalf of Westbank is summarily as follows. The Agreement is not subject to the provisions of the NCA. Consequently, either of the parties is at large to cancel the agreement. It is in the circumstances, not necessary for the court to order a cancellation of the Agreement. It is contended that the fact that default judgment has been granted is therefore inconsequential to paragraph 1 of the order of the default judgment. [99]      Paragraph 2 of the default judgement is an order that affects the rights of the First Appellant only. Should the default judgment order be rescinded it will have no practical effect because paragraph 2 of the default judgement cannot be executed. [100]   With regards to the claim for damages, the majority holds the view that on an appropriate interpretation of the default judgment, the claim for damages which the Westbank instituted against both Appellants, is postponed in terms of the court order. According to the majority, the relevant prayers as contained in the particulars of claim and as set out in the default judgment order, do not constitute a judgment against the Appellants by reason of the fact that Westbank will have to amend its particulars of claim to pursue its claim for damages. [101]   The question now is: when all of this happens, where will the Appellants be? Standing by idly with arms folded watching events passing by? The majority judgment is silent about the status and position of the Appellants when Westbank amends its particulars of claim. It does not address the issue of how the amended particulars of claim are going to be served on a party that is barred by default judgment from challenging the amended particulars of claim nor does it state how the Appellants should react to the amendment. I assume that the granting of default judgment has closed the door to the Appellants and that they can no longer participate in the litigation as if no judgment has been granted against them. If that is not the case, the majority judgment is silent about it. [102]   In my view, and in the view of the Appellants, the view of the majority judgment is set out in paragraphs [39] supra is somewhat unacceptable. It loses sight of the fact that if the Appellants do not obtain an order of rescission, the fate of the company will be sealed. It will not be able to contest the Westbank's claim for damages. It will be prevented from doing so by the default judgment that has already been granted against it. Considering the basis on which the Appellants have brought this application for rescission, this will be a violation of the company's Constitutional right as contained in section 34 of the Constitution, which provides that: "34. Everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or where applicable, another independent and impartial tribunal or forum." In my view, this constitutes a compelling reason for this court to intervene in terms section 34 of the Constitution. [103]   In an affidavit called "APPELLANTS Opposing Affidavit In The Mootness of Appeal", the deponent, Mr Tertius Vermeulen, states that: “ 4.5  it appears though the respondent fails to appreciate the legal effect consequent upon the order of court granted and the fact that payment of damages was likewise ordered, the payment of which having been postponed pending the calculation of the quantum thereof. 4.6  to put it different, it appears the respondent does not appreciate the fact that if the default judgment is not rescinded, it can, as a matter of fact, approach the court on the papers as supplemented, to obtain an order in terms of which the First Appellant and I will be liable to pay the proven damages. Even though we would be permitted to dispute the quantum of the damages allegedly suffered in that instance, our fate is sealed by in respect of the liability to pay same as per the order of court granted on 23 November 2018.” The offshoot of this judgment is that the appellant will be barred from negotiating a settlement or from contesting the amount of damages that may have been determined; Westbank may determine an oppressive amount or may use a method that is unacceptable to the Appellants and the Appellants will not be in any position to challenge it. [104]   Wesbank raised a point in limine based on section 16 (2)(a) of the Superior Courts Act 10 of 2013 . This section reads as follows: "When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone." [105]   The legal definition of moot is the presence of an undisputed irrelevant issue. In a court situation, it means that an issue that has not been officially decided on and that cannot be decided on any basis by the court. In other words, mootness can refer to a case where an issue did not exist but has been resolved or dismissed. It can refer to a point that is or has become irrelevant or which is no longer significant. A case is moot and therefore not justiciable if it no longer presents an existing or live controversy or prejudice or threat of prejudice to the plaintiff no longer exists. Part of what underlies this doctrine is the notion that the court should avoid giving advisory opinions on abstract propositions of law. [106]   A case that is moot must be dismissed. That is the mootness doctrine. However, to dismiss a case because it is moot, the court must reach that conclusion on all the issues and not only on one issue. Moreover, s 16(2)(a) of the Superior Courts Act makes it clear that "when at the hearing of an appeal the issues (my own underlining) are of such a nature......" There is therefore an exception to the general rule. That happens in the case that is capable of repetition. Now, in the instant appeal, the majority judgment does not contend that the appeal is moot on all the issues. The majority has not referred, in its judgment, to any authority in which the whole appeal was dismissed based only on the mootness of one or two points out several. [107]   Firstly, the issue regarding calculation of damages is an issue capable of repetition. This is, likely, going to be a recurring issue for the Courts. The case will keep on coming up again. It remains an exception so that rather than being roadblocked, that issue remains to be heard in litigation in courts. Secondly, the issue regarding whether Mr Vermeulen entered into any suretyship agreement with Westbank is another outstanding issue that still requires attention. These two issues, in my view, present existing or living controversies. [108]   The principle of mootness is, in this country, now provided for, as shown in paragraph [59] above, in section 16 (2)(a) of the Superior Courts Act. At the pain of repetition, it provides as follows: "[11] The question of mootness of an appeal has featured repeatedly in this and other Courts. These cases demonstrate that a court hearing an appeal would not readily accept an invitation to adjudicate on issues which are of such a nature that the decisions sought will have your practical effect or result." See in this regard The President of the Republic of South Africa v DA and Others (664/17) [2018] ZASCA 79 (31 May 2018). The SCA quoted with approval the following paragraph from National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs 2000 (2) SA1 (CC) paragraph (21) footnote 18: "A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the court were to avoid giving advisory propositions by of law". Such was the case in JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others [1996] ZACC 23 ; 1997 (3) SA 514 (CC) (1996 (12) BCLR1599) where Didcott J said the following at paragraph [17]: "There can hardly be a clearer instance of issues that are wholly academic, of issues exciting no interest but a historical one, than those on which our ruling is wanted to have now become." In paragraph 12 the Court observed that: "[12] There are instances where there have been exceptions to the provisions initially of section 21A of Act 59 of 1959, and presently section 16{2)(a)(I) of the Superior Courts Act 10 of 2013 . The Courts have exercised a discretion to hear a matter even when it was moot. This discretion has been applied in a limited number of cases, where the appeal, though moot raised a discreet legal point which required no merits of or factual matrix to resolve." The Court then referred to paragraph [11] of Independent Electoral Commission v Langeberg municipality [2001] ZACC 23 ; 2001 (3) SA 925 (CC) , where it had the following to say: "A pre-requisite for the exercise of the discretion is that any order which this court may make will have some practical effect on the parties or on others.” As pointed above in paragraph [32.6] above the declaration of mootness of the entire appeal will have some practical effects on the Appellants. [109]   In Normandien Farms (Pty) Ltd v South African Agency For Promotion of Petroleum Exportation and Exploitation SOC Limited and Others [2020] ZACC 5 in para [41] the Court stated that: "[41]  This court has held that it is axiomatic that mootness is not absolute bar to the justifiability of an issue (and that this) court may entertain an appeal even if moot where the interests of justice so require." See Popcru v Sacoswu (2018) ZACC 2019 (1) SA 73 (C). This Court "has discretionary powers to entertain even admittedly moot issues". In my view, it is quite clear that not all the issues in the matter have been dealt with. This appeal may not be dismissed simply because of the mootness of one issue. In the absence of proof that all the issues, as required by s 16 of the Superior Courts Act supra , are moot, the appeal may not be dismissed only on the mootness of one issue. At any rate the Court has a discretion to deal with this appeal even when Westbank claims that the appeal is moot. In my view, this Court is therefore at large to decide the application for rescission. In the result I would propose upholding the appeal. [110] WHETHER THE APPEAL HAS LAPSED [110.1] It is common cause between the parties that when the Appellants' attorneys applied for a date of hearing of the appeal, they failed to file with the registrar a power for attorney, as it is required by the provisions of rule 7 (2) of the Uniform rules. Rule 7(2) of the rules of court provides that the registrar shall not set down an appeal at the instance of an attorney unless such attorney has filed a power of attorney authorising him to appeal, together with the application for a date of hearing of the appeal in terms of rule 49 (6)(a). The rule provides further that unless the power of attorney is filed with the application for a date of hearing, the appellants cannot be considered to have made a written application in accordance with the provisions of rule for 49(6)(a). [110.2] Now, despite the provisions of rule 7(2) , the registrar of the court set the appeal down for hearing on the 23 May 2023 and the Appellants' attorneys duly delivered a notice of set down in the appeal. But if an application for a date for the hearing of the appeal is not properly made, as in this instance appeal, due to failure to file the power of attorney, the appeal, if set down, should be struck off the roll. This is what the court in Aymac CC v Widgerow 2009(6) SA 436 WLD at 440 paragraph [6] "[6] The application for a date of hearing is that referred to in the rule 49(6)(a). The effect of these two rules is that, simultaneously with making written application to the registrar for a date for the hearing of the appeal, the appellants' attorney [if he is represented by one] shall file the power of attorney. Unless the power of attorneys is filed together with the application for the date of hearing, the appellant cannot be considered properly to have made written application in terms of rule 49(6)(a) … In the absence of a proper making of an application for a date for hearing of the appeal, the appeal is not properly set down and should be struck off the roll. This is in line with earlier practice, which was that a poverty was required to prosecute an appeal, and where no poverty had been filed, the proper order was considered to be that the matter be struck of the roll rather than be postponed, because it had been incorrectly enrolled." [110.3] This appeal was however, not struck from the roll. It continued and the parties were allowed to argue the merits. But before then it had been contended by Westbank's practice note that the appeal "shall be deemed to have lapsed." On this basis counsel for Westbank contended that the appeal is moot. [110.4] According to rule 49(6)(b) , an appeal that has lapsed may be reinstated on an application by the appellant and upon good cause shown. The question then became whether the court should reinstate the appeal in terms of rule 49(6)(b). The principles which guide a court in applications of this nature are well known. Factors which are considered are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. [110.5] The Appellants, through their attorney, Hermanus Jacobus Kriel (Mr Kriel), brought an application, on 12 May 2023, for condonation for the late filing of the power of attorney and for the reinstatement of the appeal, in terms of the provisions of rule 49(6)(b). According to the index a notice of application for an appeal date was signed on the 26 th day of April 2022. The date on which it was filed with the registrar of court is not clear. But the date of 3 May 2022 seems to have been the date on which the application for the hearing of the appeal was made or given. The notice of set down was filed with the registrar on 10 May 2022 when the date of hearing of 24 May 2023 was granted. This set down was therefore served on Westbank on 10 May 2022. It is therefore clear that a period of almost a year had lapsed between the date on which the application for a trial date was made and the date on which the application for condonation for the late filing of the power of attorney was made. [110.6] It is clear from his affidavit that Mr Kriel was not aware that no power of attorney had been filed on behalf of the Appellants when the application for a hearing date was made until his attention was drawn thereto by the other side. According to his affidavit, he was under an impression that that had been done. It is surprising that, although he took over the matter since the inception of the application for rescission, he was nevertheless oblivious of what happened in the matter subsequently. [110.7] He states furthermore that his failure to comply with rule 7(2) came about as a bona fide oversight and that he had no intention to disobey the court rules. He states that it can be deduced from the fact that he noted and appeal on behalf of the Appellants and on the instructions of the Appellants that he had the necessary authority to act on their behalf. But of course, the purpose of a power of attorney is to demonstrate the existence of a mandate to prosecute an appeal on behalf of a litigant. This is what the rule requires, a power of attorney. [110.8] He contends furthermore that West Bank would not suffer any prejudice if the appeal proceeded on 24 May 2023. Moreover, the parties have filed all their papers and were ready to proceed with appeal. If the appeal was not reinstated it can also lead to the parties having to come back for it some years or months later. The parties would then be put back at a position where they would have to prepare again for the hearing of the appeal, when the appeal could be heard on 24 May 2023. It was therefore, in my view, in the interest of justice, time and convenience to the parties that the appeal be reinstated. [110.9] Quiet clearly, Mr Kriel laboured under a false but innocent impression that a power of attorney had been filed. He testified that he had no intention not to comply with the provisions of rule 7(2). Refusing to reinstate the appeal would, in my view, have been akin to punishing the Appellants where the appeal or case means so much to them and furthermore it would result in the undue delay to finalise the appeal when the parties are ready to proceed with it. Moreover, from the facts of the appeal I am satisfied that the Appellants do have prospect of success in their appeal. The conclusion is reached upon analysis of the evidence of Mr Vermeulen and the facts of the matter. I have dealt with the issue relating to mootness of the appeal above. In conclusion, I would reinstate the appeal. I would make the following order. 1.         The appeal against the judgment and order of the Court quo is hereby granted. 2.         The judgement and order of the Court a quo is hereby set aside and in its place is substituted the following: "The application for rescission is hereby granted, with costs." PM MABUSE JUDGE OF THE HIGH COURT Appearances: Counsel for the Appellants:            Adv CA Kriel Instructed by:                                 Machobane Kriel Inc Counsel for the Respondent:         Adv W G Pretorius Instructed by:                                 Roussows Leslie Inc Date heard:             24 May 2023 Date of Judgment:  24 August 2023 [1] Par. 2.2.2 of Founding Affidavit in rescission application [2] Par. 9.6 of Founding Affidavit in rescission application [3] Corlett Drive Estate v Boland Bank Ltd and Another 1978 (4) SA 420 (C) at 425D-F [4] Aymac CC and Another v Widgerow 2009 (6) SA 433 (W) at 440G–441l [5] United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A) at 720E-G [6] Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141C-E [7] Vide paragraph 11 supra [9] National Credit Act 34 of 2005 [10] BMW Financial Services (SA) (Pty) Ltd v Farouk's Door Shop CC 2009 JDR 1256 (KZD) par. [26] [11] Born Free Investments 247 (Pty) Ltd v Kriel NO . 2019 JDR 0576 (SCA), par. [7] [12] Superior Courts Act 10 of 2013 Section 16(2)(a)(ii) sino noindex make_database footer start