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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG .
Case Number: 2019- 21916
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: NO
14 July 2025
In the matter between:
MEYERSDAL NATURE ESTATE HOMEOWNERS ASSOCIATION Applicant
(Registration Number: 2005/00957/08)
And
FHUMULANI MAKHOMISANI N.O. First Respondent
(ID No.: 7 […])
KHATHUTSHELO MAKHOMISANI N.O. Second Respondent
(ID No.: 7 […])
[in their capacities as trustees of Makhoms Family Trust 126/2010]
JUDGMENT
2
NOKO J
Introduction
[1] This is an application for the confirmation of the rule nisi granted in terms
of which Makoms Trust (IT 126/2010) (“the Makoms Trust / Trust”)
1 represented
by the first2 and second respondents, w as provisionally sequestrated. The
applicant , Meyersdal Nature Estate Homeowners Association (“Estate”) obtained
a rule nisi on 27 November 2019 , which was extended on several occasions over
a period of time and once lapsed , then re- instated on 22 August 2024, returnable
on 3 February 2025, the date on which the application served before me. The
second respondent opposes the application.
[2] The applicant further instituted an application seeking an order dispensing
with service of the application personally on the respondent s in terms of section
9(4A) ( a)(iv) of the Insolvency Act
3(“the Act ”) as personal service could not be
effected.
Background.
[3] Makoms Trust purchased a stand in the estate, to wit , Erf 749 Meyersdal
Nature Estate Ext 14, held under Deed of Transfer T 142993/2011 (“ property ”).
The Trust failed to keep up with payments for the levies and penal ties and was in
arrears of R 77 000.00 in 2016. The applicant instituted proceedings against both
respondents4 and obtained judgment of R 77 000.00. Makoms Trust failed to
satisfy the judgment, and the applicant launched an application for sequestration
1 Noting that Trust has no independent legal standing he word Trust in this judgment is used
loosely instead of referring to specific trustees.
2 As it would appear elsewhere in the judgment , the first respondent was not a trustee at the time
when the judgment was granted.
3 24 of 1936.
4 The applicant attached Letters of Authority dated 22 January 2010 which reflects both first and
second Respondents as the Trustees.
3
of the Trust in terms of the Insolvency Act on 21 June 2019. The applicant avers
despite settlement negotiations and promises to pay made by the second
respondent no payments were effected. A provisional order was granted on 19
November 2019 calling upon the Trust to appear on the return day to show cause
why the order should not be made final. The return date was on 4 February 2020
which was extended to 20 May 2020.
[4] The Trust had meanwhile paid an amount of R 413 838.30 on 20 January
2020, which was the total amount due to the applicant as at that date. The
applicant’s statement5 indicated a zero balance after that payment.
Notwithstanding payment of the total balance, the Trust fell into arrears and was
owing the amount of R 495 696.68, which included a penalt y of R 5000.00 per
month for failing to complete its building construction on the property within the
prescribed time.
[5] The second respondent delivered his answering affidavit dated 24 October
2023, disputing liability on the basis that the amount underlying the judgment was
settled, and further that the applicant is abusing the sequestration regulatory
regime. The applicant , in turn, delivered the replying affidavit on 8 November
2023.
[6] The second respondent subsequently served notice in terms of Rule
6(5)(b)(iii) of the Uniform Rules of Court on 23 April 2024, setting out a point of
law. The second respondent states in the notice that the application is bound be
dismissed as the applicant cited and obtained judgment against the incorrect parties since the trustees as at date of the order included Iyonda Maphuthi
Makhomisani and Liebenberg Malan Consulting (Pty) Ltd represented by Linel
Malan who were appointed on 16 November 2018 and not the first respondent.
The Letters of Authority was attached to this effect.
5 CL014- 15
4
[7] The applicant , in turn and with the object of remedying the above defect
and having established from the Office of the Master of the High Court as per letters of Authority issued on 16 June 2023 that the only trustees were second
respondent and Iyonda Maphuthi Makhomisani served notice of substitution on 4
July 2024 in terms of rule 15(2) of the Uniform Rules of Court seeking to
substitut e Fhumulani Makhomisani with Iyonda Maphuthi Makhomisani.
Submissions by the parties.
Point of law.
[8] Counsel for the second respondent contended that the rule nisi should not
be confirmed since the applicant cited a wrong party as a representative of the
Trust. To this end, counsel contended that the application should be construed as
a nullity .
[9] The applicant , on the other hand, contended that the second respondent
was not co- operative and had failed even to provide the address of the first
applicant. Further that , out of its efforts , it established from the office of the
Master of the High Court that the Fhumulani Makhomisani is no longer a trustee.
Having established this fact, the applicant invoked the provisions of rule 15(2) and accordingly joined Iyonda Makhomisani as a substitute for Fhumulani Makhomisani. The said Iyonda Makhomisani, counsel , argued, then substituted
Fhumulani once the said notice was served on the latter.
Issues
[10] The issues for determination are whether the second respondent’s point of
law is sustained and if not, whether the applicant has made out a case to confirm
the rule nisi .
5
Legal principles and analysis
[11] Rule 15 of the Uniform Rules of Court prescribes the process to be
followed if a party seeks to substitute one party with the other. The applicant in
casu sought to substitute Fhumulani with Iyanda through service of the Rule
15(2) notice. Rule 15(2) provides that:
“Whenever by reason of an event referred to in subrule (1) it becomes
necessary or proper to introduce a further person as a party in such proceedings (whether in addition to or in substitution for the party to whom such proceedings relate) any party thereto may forthwith by notice to such further person, to every other party and to the registrar, add or substitute such further person as a party thereto, and subject to any order made under subrule (4) hereof, such proceedings shall thereupon continue in respect of the person thus added or substituted as if he had been a party
from the commencement thereof and all steps validly taken before such addition or substitution shall continue of full force and effect : Provided that
save with the leave of court granted on such terms (as to adjournment or
otherwise) as it may seem meet , no such notice shall be given after the
commencement of the hearing of any opposed; and provided further, that
the copy of the notice served on any person joined thereby as a party to the proceedings shall ( unless such party is represented by an attorney
who is already in possession thereof ), be accompanied in application
proceedings by copies of all notices, affidavits and material documents previously delivered, and tria l matters by copies of all pleadings and the
documents already filed of record, such notice, rather than a notice to the Registrar, shall be served by the Sheriff .” (underlining added).
[12] On a closer scrutiny of the applicant’s notice, it is beset by a few
insurmountable hurdles. First, the return of service submitted as evidence to prove that Iyonda Makhomisani was served instead refers to service on
Fhumulani Makhomisani , and not Iyonda Makhomisani, who is identified as a
6
third party on the return of service. The said notice was not personally served
and instead was affixed at the main gate of the chosen domicilium citandi et
executandi of Fhumulani Makhomisani . The sheriff remarked on the return that
“… the property is half building premises vacant”. (sic).6
[13] Secondly, substitution after the commencement of the hearing should be
preceded by leave being obtained from the court. The applicant should have
launch ed an application to court for an order to join Iyonda Makhomisani . It is
stated in Erasmus7 in the commentary under rule 15(2) of the Uniform Rules of
Court that “… in view of the proviso to the subrule, application to court will be
necessary where it is desired to substitute a party after judgment has been given.” This was also confirmed by the SCA in Cilliers
8 that the first proviso to
Rule 15(2) requires a party to obtain leave of court where the proceedings had
commencement. Further , that “… absent an application to court for the
substitution … the purported substitution is irregular …” .9 The application to
confirm the rule nisi is not preceded by a court order substituting Fhumulani
Makhomisani with Iyonda Makhomisani .
[14] It is noted in passing that t he applicant also brought into question the
authority of the first responde nt to act o n behalf of the Trust. This also extended
to the attorneys who purported to act for the respondents who were served with
notice in terms of Rule 7 by the applicant . The applicant referred to Rossiter NO10
where the court held that one Trustee would not have authority or standing to act
on behalf of the Trust unless the Trust Deed authorises the same alternatively , if
there is a resolution to that effect by other trustees.11
6 See sheriff’s return attached to Applicant’s Notice of substitution in terms of Rule 15(2) at
CL015- 11.
7 HJ “Superior Court Practice” at B1 -119
8 Cilliers NO and Others v Ellis and Another (200/2016) [2017] ZASCA 13 (17 March 2017) .
9 Id at para 25. See also The Public Protector of South Africa v The Chairperson of the Section
194(1) Committee and Others (627/2023) [2024] ZASCA 131 (1 October 2024 at para 22.
10 Rossiter NO v Nedbank Limited (AR 94/ 2019) [ 2020] ZAKZPHC 7(14 February 2020).
11 Such authority may also impact on the settlement negotiations which were entered into on
behalf of the Trust.
7
Conclusion
[15] Having failed to comply with the regulatory framework foreshadowed
above, ergo cadit questio. Furthermore, any other issues raised by the applicant
pale into insignificance and the rule nisi is therefore bound to be discharged.
Costs
[16] The respondent contended that the costs awarded should be on Scale C ,
including costs reserved on the basis that the applicant who weaponised “…a
provisional sequestration order obtained where the Trust has not been properly joined to these proceedings...” . I am not persuaded that the applicant was
unreasonable in bringing the application, and or that the lis is complex to warrant
costs at a higher scale.
Order
[17] In the premises I make the following order
1. The rule nisi is discharged.
2. The applicant is order ed to pay the costs on scale B including costs
of counsel.
M V NOKO
Judge of the High Court .
DISCLAMER: This judgment was handed down electronically by circulation to the
Parties /their legal representatives by email and by uploading it to the electronic file on Case Lines. The date for hand- down is deemed to be 14 July 2025 .
Date s:
8
Hearing: 4 February 2025.
Judgment: 14 July 2025
Appearances:
For the Applicant: Snijders JP, instructed by Mills &
Groenewald Attorneys.
For the Second Respondent : Ayayee AE, i nstructed by Bonisisle Majavu
Inc.