- The High Court in Johannesburg recalled an order allowing Nedbank to repossess a client's vehicle after she arrived at court shortly before the hearing.
- Judge Mitchell found that courts have an inherent constitutional power to revisit orders granted in a party’s absence if fairness and justice require it.
- The client now has until 14 August 2026 to file an affidavit opposing Nedbank’s application for summary judgment.
“Court orders are final. But finality is not a straitjacket. If a court grants an order in a party's absence but that party later appears, a court can recall the order.”
Those opening remarks from Acting Judge J Mitchell set the tone for a High Court judgment in Johannesburg. The court recalled an order granted in Nedbank’s favour after its client, Maite Magdeline Sekgobela, arrived at court shortly after the matter was heard.
The judge found that although court orders are meant to bring litigation to a close, fairness and justice may require a court to revisit an order granted in a party’s absence.
The case arose from Nedbank’s application to repossess a motor vehicle financed under an instalment sale agreement after Sekgobela fell behind with her monthly payments. Although she had entered debt review, the bank later terminated the process in terms of Section 86(10) of the National Credit Act, before going to court to recover the vehicle and any shortfall arising from its sale.
Sekgobela defended the action by filing a plea. However, she did not file an affidavit opposing Nedbank’s application for summary judgment, so the matter was enrolled on the unopposed summary judgment roll for 27 July 2026.
Before granting the order, Judge Mitchell asked Nedbank’s lawyers if the application had been properly served. The bank’s attorneys had sent the papers by email to Sekgobela’s debt counsellor. After confirming that the debt counsellor’s power of attorney covered receiving legal documents on her behalf, the judge granted Nedbank’s request.
Client arrived shortly after the hearing
The matter appeared to have been finalised. About 30 minutes later, while Judge Mitchell was in chambers, his registrar told him that Sekgobela had arrived at court.
Instead of letting the order stand without further consideration, the judge called the matter back and postponed it to 29 July 2026 so the parties could address a key legal question. The question was whether a court can recall an order granted in a party’s absence once that order has already been made.
Judge Mitchell explained that in his experience, a judge may recall such an order if the absent party appears before the court has adjourned. Research after the hearing confirmed that this power has existed for centuries under the common law, and now has constitutional backing through the courts’ inherent authority to regulate their own processes.
Nedbank dropped its legal objection
In written submissions before the hearing was recalled, Nedbank argued that the court had become functus officio after granting the order and so had no power to recall it just because Sekgobela arrived late and wanted to oppose the application.
The court then pointed both parties to longstanding appellate authority that recognises the court’s power to recall an order in appropriate circumstances.
When the matter returned to court on 29 July 2026, Nedbank’s counsel, Mr McTurk, accepted that the authorities made it clear the court had the power to recall the order. He also did not dispute Sekgobela’s explanation that she had been delayed because she was caring for her sick son.
McTurk still argued that the court should refuse to use that discretion because, in the bank’s view, Sekgobela had little chance of successfully opposing summary judgment.
Judge Mitchell disagreed, saying procedural fairness could not be ignored just because one party believed the outcome would remain unchanged.
He said the Constitutional Court had already rejected that kind of no-difference reasoning when it comes to a person’s right to be heard.
Fairness outweighed procedural finality
Judge Mitchell said the authorities made it clear that courts always have a discretion to regulate and protect their own processes.
He warned that the judgment should not be read as letting litigants ignore court dates on purpose. “None of this hands litigants, even unrepresented litigants, a permission slip to wilfully skip court dates,” he said.
The judge also acknowledged that banks have rights too. He said Nedbank had acted within its rights by seeking an order when Sekgobela failed to appear. However, fairness justified recalling the order because she had made a real, though late, effort to attend court. The fact that she was unrepresented and involved in consumer litigation made it even more important to let her have an opportunity to be heard.
Judge Mitchell also found that Sekgobela arrived within about an hour of the order being granted, so she was still within the time when the court could recall its own order.
Order recalled
Judge Mitchell recalled the order made on 27 July 2026 and postponed Nedbank’s application for summary judgment indefinitely. Sekgobela was given until 5pm on 14 August 2026 to file an affidavit opposing the application.
The judge made no order on costs for the hearing on 29 July 2026 and left all other costs to be decided when the summary judgment application returns to court.
He also noted that, at the court’s request, Nedbank agreed not to enforce the earlier order while the judgment was being delivered. Judge Mitchell called that decision a redeeming bit of good corporate citizenship.
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