Kumalo v Mphono and Others, High Court of South Africa (Western Cape Division, Cape Town) Case No A252/2023, judgment delivered 20 June 2025
This judgment is reportable because it clarifies the procedural effect of an order granted in Chambers compelling discovery under Uniform Rule 35(7) and, crucially, whether non-compliance with such an order can, without more, result in the automatic dismissal of a pending application. The Court’s exposition on the interplay between the coercive mechanism in paragraph 2 of a discovery order and the remedial pathway provided by Rule 42 fills an evident gap in South African civil-procedure jurisprudence. The decision is significant to practitioners seeking certainty on the limits of so-called “self-executing” orders and the circumstances in which further judicial intervention is indispensable.
No external authorities were cited in the extract provided. The Court relied primarily on its own previous interlocutory orders (24 February 2020, 19 March 2020) and did not reference reported case law in the available text.
Administration of Estates Act 66 of 1965 (implied in references to the executrix’s powers)
Uniform Rule 35(7) – Application to compel discovery
Uniform Rule 42 – Variation or rescission of an order
The appellants, all children of the late Mpumelelo Daniel Khumalo, sought to remove their mother—the first respondent—as executrix of their father’s estate. After the executrix launched an interlocutory application to compel discovery of the first appellant’s personal bank records and the taxi-business accounts, Davis J issued a Chamber-book order on 19 March 2020. That order stipulated that failing compliance “the applicants’ claim would be struck out” and judgment entered for the respondents. Two years later service of the order was effected; in the interim the appellants had not complied. The executrix contended that the main application was automatically dismissed. The appellants approached the court a quo for declaratory relief that the main application had not lapsed or, in the alternative, that the order required a further application under paragraph 3 before dismissal could follow.
Whether paragraph 2 of the 19 March 2020 Chamber-book order had self-executing force capable of dismissing the main application once the five-day period for compliance expired.
Whether, in the absence of a further application on the same papers, the respondents could treat the main application as having been dismissed.
Whether Rule 42 empowered the Court to vary the 19 March 2020 order to clarify that a further substantive order was required before dismissal.
The Court held that the 19 March 2020 order was not self-executing: it created a potential remedy but contemplated a further application to make that remedy operative. Consequently the main application was not dismissed by effluxion of time. The Court further held that, if ambiguity existed, Rule 42 authorised a variation to reflect the conditional nature of the dismissal clause. The matter was remitted for oral evidence on the marital status of the first respondent and the deceased.
The deceased, Mpumelelo Daniel Khumalo, operated a lucrative minibus-taxi business. Upon his death, his wife, Ntombizodwa Emelda Mphono, was appointed executrix. Dissatisfied with her administration, eight of the deceased’s children launched an urgent application in July 2019 to remove her and interdict her from distributing estate assets. Davis AJ granted interim relief on 30 July 2019 and postponed the “main application” for further hearing.
Responding to allegations that she mismanaged the taxi income, the executrix counter-applied under Rule 35(7) compelling the first appellant to discover all relevant financial documents. On 19 March 2020 Davis J, sitting in Chambers, ordered production of the documents within five days and stipulated that non-compliance would lead to striking out of the appellants’ case and judgment for the respondents.
The order was inexplicably served only on 7 April 2022. The appellants complied shortly thereafter. Nevertheless, on 17 June 2022 the executrix sought to dismiss the main application, asserting that dismissal had occurred automatically once the five-day period lapsed in March 2020. When correspondence failed to resolve the dispute, the appellants launched the present application for declaratory and/or Rule 42 relief.
The Court had to decide whether paragraph 2 of the discovery order was self-executing, thereby terminating the main application without judicial oversight, or whether it merely authorised the respondents to seek such dismissal by further application. Related to this was the question whether Rule 42 could be invoked to vary or clarify the earlier order to prevent injustice or clear error.
First, the Court examined the wording of paragraph 2 of the 19 March 2020 order. Though forthrightly phrased, it expressly empowered the respondents to “apply on the same papers duly supplemented” for dismissal—language incompatible with immediate, automatic effect. The Court reasoned that a self-executing order must unequivocally operate without further motion; the presence of the words “may apply” demonstrates the contrary.
Secondly, the Court observed that the order was granted ex parte in Chambers without any indication that the judge intended to oust the audi alteram partem principle at the critical stage of dismissal. South African procedural law disfavors drastic consequences without affording parties a hearing, particularly where the dismissive sanction impinges on access to court.
Thirdly, any ambiguity must be resolved in favour of a construction preserving the litigant’s right to procedural fairness. Even if paragraph 2 were ambiguous, Rule 42(1)(b) empowers a court to vary an ambiguous or contradictory order. The Court found that justice required clarification: the order conditioned dismissal on a further application.
Finally, policy considerations weighed against treating the main application as silently extinguished, especially given the 24-month delay in service. Equity demanded that the substantive dispute—whether the executrix was lawfully married to the deceased—be ventilated on oral evidence.
The Court declared that the main application had not been dismissed by virtue of the 19 March 2020 order. In the alternative, and to remove residual uncertainty, the Court varied paragraph 2 of that order under Rule 42 so that dismissal could ensue only after a subsequent application and judicial determination. The matter was referred to oral evidence on the outstanding marital-status issue, with costs reserved.
A conditional or “potentially self-executing” discovery order requiring compliance within a specified period does not automatically extinguish a litigant’s claim unless the order is couched in unequivocally peremptory terms devoid of any further procedural step.
Where an order is ambiguous or susceptible to multiple constructions, Uniform Rule 42(1)(b) allows a court to vary it so as to express its true intention and prevent procedural unfairness.
Provisions that purport to deprive a party of its cause of action must be strictly construed, and where doubt exists courts will favour the construction that preserves the right to be heard.