Kumalo and Others v Mphono and Others, A252/2023 (Western Cape Division, Cape Town) (20 June 2025)
This judgment is reportable because it clarifies the proper procedure to be followed when a party seeks dismissal of a main application for non-compliance with a discovery order obtained via chamber-book proceedings. The Court restates the limits of a judge’s power to grant self-executing (strike-out) orders and explains how Rule 35(7) and Rule 42 of the Uniform Rules of Court interact, thereby providing guidance of general importance to civil practice in South Africa.
The judgment contains no formal case citations; the Court relied principally on the interpretation of the Uniform Rules and did not refer to external precedents.
Administration of Estates Act 66 of 1965
Uniform Rules of Court, Rule 35(7)
Uniform Rules of Court, Rule 42
The appellants, eight children of the late Mpumelelo Daniel Khumalo, appealed against a decision that effectively dismissed their 2019 application to remove their mother, the first respondent, as executrix of the estate. The dismissal flowed from a self-executing paragraph in a chamber-book order of 19 March 2020 compelling discovery of banking and taxi-business records. When the executrix eventually sought to enforce that paragraph in 2022, she contended that the dismissal had occurred automatically. The High Court on appeal was asked to declare that the main application had not been dismissed, or alternatively to vary the 2020 order under Rule 42 so that dismissal could occur only after a further court order.
Whether the self-executing clause in the 19 March 2020 discovery order lawfully dismissed the main application once the appellants failed to comply within five days.
Whether a subsequent application was required to activate the dismissal contemplated in the clause.
Whether the 2020 order ought to be varied or rescinded under Rule 42 because of ambiguity or procedural unfairness.
The Court held that the main application had not been automatically dismissed. The wording of the 2020 order contemplated a further application on the same papers, duly supplemented, before dismissal could occur. As that step was never taken, the main application remained extant. The Court further held that, even if the order were ambiguous, it should be varied under Rule 42 to record explicitly that a further court order is required before dismissal can follow from non-compliance.
The appellants launched urgent proceedings in July 2019 to restrain their mother, the executrix, from distributing estate assets and ultimately to remove her as executrix. Davis AJ granted interim relief on 30 July 2019 preventing distributions pending final determination of the removal application.
In March 2020 the executrix invoked Rule 35(7) seeking discovery of the first appellant’s bank statements and taxi-business accounts. Davis J, sitting in chambers, granted an order compelling production within five days and inserted a self-executing clause stating that failure to comply would result in the striking-out of the appellants’ application and judgment in favour of the executrix.
Service of that order was delayed for almost two years; it was only served on 7 April 2022. The executrix then attempted to rely on the self-executing clause, asserting that the main application had lapsed. The matter was set down but struck from the roll when the appellants belatedly complied. Conflicting correspondence followed, prompting the appellants to seek declaratory relief confirming that their application was still alive.
First, whether the wording of the March 2020 order effected an automatic dismissal of the main application upon non-compliance, or whether a further application and order were prerequisites.
Second, whether, in the alternative, the order should be varied or rescinded in terms of Rule 42 on the basis of ambiguity, mistake, or procedural error.
In a detailed examination of the text of the 19 March 2020 order, the Court observed that paragraph 3 required the respondents to “apply on the same papers, duly supplemented” before dismissal could follow. This language, the Court held, plainly envisaged a two-step process: first the lapse of the five-day period, and second a fresh approach to court for dismissal. Without the second step, no operative order dismissing the main application could exist.
The Court emphasised that judges should exercise caution when granting self-executing orders, particularly in chamber-book applications decided without oral argument. A litigant’s substantive rights—here, the appellants’ right to pursue removal of an executrix—should not be defeated without judicial oversight at the enforcement stage.
Even if the order were susceptible to two interpretations, Rule 42 empowers the court to vary an ambiguous order to give effect to its true intention. The Court found ample grounds to vary the order so that it expressly requires a further application before dismissal, thereby avoiding injustice and reinforcing procedural fairness.
The Court declared that the main application launched on 24 July 2019 was not dismissed by operation of the 19 March 2020 order. In the alternative, and to remove all doubt, the Court varied the 2020 order under Rule 42 to state that dismissal may occur only upon a substantive application to court. Costs were awarded in favour of the appellants.
A self-executing clause in a discovery order must be interpreted in context; if it contemplates a further application, there is no automatic dismissal on mere non-compliance.
Rule 35(7) provides a mechanism to compel discovery but does not inherently authorise final relief such as dismissal without a further hearing.
Under Rule 42 the court retains a discretionary power to correct, vary, or rescind an order that is ambiguous or reflects a procedural irregularity, ensuring that justice and procedural fairness are upheld.