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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

The Hon Ms Justice T Ndita
The Hon Mr Justice MI Samela
The Hon Ms Justice D S Kusevitsky

CASE NUMBER: A252/2023

In the matter between:

THEMBISILE NONHLANHLA KUMALO 1ST Appellant

JABULANI KUMALO 2ND Appellant

SIBUSISO ODWA MAGADLELA 3RD Appellant

BUSISIWE MPHONO 4th Appellant

THAMSANQA RINI 5TH Appellant

T[...] F[...] 6TH Appellant

T[...] L[...] M[...] 7TH Appellant

T[...] M[...] 8TH Appellant
(In her capacity as guardian of T[...] A[...] M[...])

and

NTOMBIZODWA EMELDA MPHONO 1ST Respondent

MASTER OF THE HIGH COURT 2ND Respondent

THEMBALETHU KUMALO 3RD Respondent

___________________________________________________________________
JUDGMENT DELIVERED ELECTRONICALLY ON 20 JUNE 2025

KUSEVITSKY, J (NDITA and SAMELA JJ concurring):

Introduction

[1] The crux of this appeal centres around an order granted via a Chamber book
application to compel discovery and the consequent orders granted pursuant thereto.

[2] The litigation history which for ms the basis of this appeal is, to a degree,
unfortunate. I set out a brief history. During July 2019, the Appellants applied for an
urgent application for the removal of the First Respondent as executrix of the estate
of the late Daniel Khumalo (“the fath er/the deceased”). The First Respondent (“the
executrix’) is the mother of the First to Fifth Appellants and the wife of the late Daniel
Khumalo. The sixth and seventh Appellants, also siblings and children of the
deceased, are minors and are represented b y their mother, the Eighth Appellant.
The Third Respondent is also the son of the First Respondent and the deceased and
the sibling of the First to Seventh Appellants. I will refer to the First and Third
Respondents as “the Respondents” since no relief is sought against the Master of
the High Court, the Second Respondent herein.

[3] At the centre of the dispute, and to the extent that it is relevant to this appeal,
is the the control of the deceased’s minibus taxi business and its operations. On 24
July 2019, the Appellants brought an urgent applicant for the removal of the
executrix and pending the determination thereof, sought an order prohibiting her
from making any distributions whilst the main application was pending (“the main
application”).

[4] On 30 July 2019 (“the July 2019 order”), Davis AJ granted an interim order
inter alia prohibiting the First Respondent from making any distributions or awards of
any assets in the estate pending the determination of the matter, save in connection
with the running of the taxi business of the deceased’s estate. Part B of the
application was postponed for hearing to 8 August 2019.

[5] On 8 August 2019, the First Appellant on behalf of all of the Appellants in their
replying papers in the main application, sought a referral of the matter to oral
evidence on one narrow issue as to whether the executrix was indeed married to
their father at the time of his death.

[6] On 24 February 2020, Davis J made an order, inter alia, postponing the main
application to 16 March 2020. The reco rd shows that on 1 March 2020, 1 an urgent
application to compel discovery in terms of Rule 35(7) was launched by First and
Third Respondents directing the First Appellant to produce for inspection inter alia all
accounting records in respect of income generated from the taxi business of the
deceased (“the application to compel”). Paragraph 3 of the application als o provided
that in the event that the First Appellant failed to comply, then ‘ the First and Third
Respondents may apply on the same papers duly supplemented where necessary,
for an order dismissing the Applicants’ application 2 and granting judgment in fav our
of the Respondents as prayed for in the First Respondent’s answering affidavit’ 3’. It

of the Respondents as prayed for in the First Respondent’s answering affidavit’ 3’. It
is evident that same was served on the Appellants’ Attorney, B Xulu & Partners Inc.
(“BXI”), on 4 March 2020. The relief sought was as follows:

1 Annexure “TK9” to the application
2 paragraph 3.1of the application to compel
3 paragraph 3.2 of the application to compel

“1. Condoning the ap plicant’s failure to comply and dispense with the forms,
Service and time limits prescribed provided for in the Uniform Rules of this
Court, and granting leave for this matter to be dealt with as a matter of
urgency;
2. Directing that the First Applicant produce for inspection and make available
to the Respondents all accounting records in respect of income granted from
the taxi business of the late Mpumelelo Daniel Khumalo from 25 March 2018
together with her personal bank statements from 23 March 2018, including
February 2020, within five days of delivery of this order;
3. Ordering that, in the event that the First Applicant fails to comply with
paragraph 1 above, the First and Third Respondents may apply to this
Honourable Court, on the same papers, d uly supplemented where necessary,
for an Order in terms of;
3.1 Dismissing the Applicants’ application;
3.2 Judgment be granted in favour of the Respondents as prayed for in
the First Respondent’s Answering Affidavit;
…”

[7] The record shows that a furthe r order was made by Davis J on 19 March
20204 (“the March 2020 order”), via Chamber Book, where the First Appellant was
directed to produce for inspection within 5 days, copies of her bank statements as
well as the financial records of the taxi business. It further directed that a failure to
produce for inspection such copies to assess the income and expenditure generated
therefrom by First Appellant, that the Appellants’ claim in the main application would
be struck out 5; that judgment would be granted i n favour of First Respondent; and
the dismissal of Applicant’s motion with costs in the main application6.

[8] What is gleaned from the papers is that annexure TK3 refers to an order made
by Davis J on 24 February 2020 postponing the main application to 16 March 2020
and that on 19 March 2020, Davis J granted the application to compel. In summary,

4 Annexure “TK1” to the application
5 para 2.1 of the 19 March 2020 Order

4 Annexure “TK1” to the application
5 para 2.1 of the 19 March 2020 Order
6 para 2.3 of the 19 March 2020 Order

this order required the First Appellant to provide the executrix with copies of her bank
statements and financial records of the taxi business operated by her on b ehalf of
the estate, within five days of the order being granted.

[9] It is common cause that the March 2020 was only served on the First
Appellant some two years later on 7 April 2022. No reason for the delay of the
service thereof was advanced. On 17 June 2022, the executrix made application for
the dismissal and/or striking out of the main application, on the basis that the First
Appellant had not compl ied with the March 2020 order (“the striking out
application”).7

[10] It is common cause that the application to strike was removed from the roll on
26 August 2022 some two days after the First Appellant had complied with the March
2020 order. Numerous corres pondence between the parties followed in order to
obtain clarity on the striking out application. The First Respondent’s attorneys of
record eventually indicated that their view was that the main application had been
automatically dismissed by virtue of th e March 2020 order and therefore there was
no need to bring an application for that relief. This prompted the application before
the court a quo.

Court a quo

[11] The relief sought in the notice of motion inter alia is as follows:

“1. That it be declared that the Application launched by the First to Eighth
Respondents under the aforementioned case number, on 24 July 2019
(“the main application”) was not dismissed on (or after) 24 March 2019
by virtue of the provisions of paragraph 2 of the order of this court
dated 19 March 2020, a copy of which is annexed to the founding
affidavit filed in support hereof and marked “TK1” (“the March 2020
order”).

7 This application was subsequently removed from the roll on 29 January 2022

2. That in the alternative to the relief sought in 1 above, an order that it is
declared, in the event that the Applicants are held to have failed to
comply with the March 2020 order, that the March 2020 order required
the Respondents to apply to this Court, on the same papers duly
supplemented, for an order dismissing the Main application.
3. That, in the event of the Honourable Court granting the order(s) in 1 or
2 above, directing the Main Application under the above case number
be referred to the hearing of oral evidence for the determination of the
issue as to whether the First Respo ndent was married to the late
Daniel Khumalo at the time of his death. In respect of that referral to
oral evidence:
…
…”

[12] Before the court a quo, the Appellants argued that the March 2020 Order could
not, as a matter of law, have simply dismissed the main Application without a further
order of the Court. During that hearing, it appeared that the manner in which the
Appellants relief was formulated was an issue for the presiding officer in that the
Respondents contended that it would have been proper for t he relief sought to have
been brought under the ambit of Rule 42 of the Uniform Rules of Court.

[13] The Appellants, in response to that technical objection, then moved for an
amendment in terms of which the notice of motion was amended to include
alternative relief that the March 2020 Order be varied in terms of Rule 42 to include a
provision that the Main Application could be dismissed only after a further order of
the Court. The Court a quo did not immediately rule on that amendment and
reserved judgment.

[14] The Appellants seemingly in an abundance of caution, filed a formal
application for an amendment on 24 July 2023 which was launched before any order
in respect of the matter was handed down. That formal application sought an
amendment on the same basis an d in the same terms as that which was
subsequently sought.

[15] The amended notice of motion reads as follows:

“1. That it be declared that the Application launched by the First to Eighth
Respondents under the aforementioned case number, on 24 July 2019
(“the main application”) was not dismissed on (or after) 24 March 2019
by virtue of the provisions of paragraph 2 of the order of this court
dated 19 March 2020, a copy of which is annexed to the founding
affidavit filed in support hereof and marked “TK1” (“the March 2020
order”).

2. That in the alternative to the relief sought in 1 above, the March 2020
order is varied in terms of Rule 42(1)(a) and (b), having been granted
in error-

By the addition of the following after the words: “within 5 (Five) days”:
“After service of this order on the First Applicant’s attorneys”

By the substitution of paragraph 2 which reads:

2 “In the event that the First Applicant fails to comply with paragraph 1
above, the First and Third Respondents may apply to this Honourable
Court on the same papers, duly supplemented where necessary, for an
order:
2.1 Dismissing the Applicants’ application;
2.2 Granting judgment in favour of the Respondents as prayed for in
the First Respondent’s Answering Affidavit; and
2.3 Costs of suit

3. …”

[16] On 27 July 2023, the court made an order in the following terms:

“1. Declaration relief sought is dismissed.
2. Application for the late amendment is dismissed

3. Cost on a party to party scale.”

[17] I am in agreement with Mr van Reenen, counsel for the Appellants, who
contends that the order is not a model of clarity and must mean that the application
before the Court a quo was dismissed; so too the application for the late amendment
and the Appellants were ordered to pay the Respondents’ costs on a party and party
scale.

[18] Pursuant to a request for Reasons, a summary of the reasons advanced by
Nthambeleni AJ are as follows:

a. Once a Court makes a ruling or grants an order it is functus officio and
the remedies available to a party are to appeal the order or seek its
rescission or variation in terms of the Rules of Court or common law.
b. The Court a quo was confronted with an appl ication which was not a
rescission application or a variation application but a declaratory order
that was “ couched” in a form to vary the terms of the March 2020
Order.
c. A “ belated” amendment was sought of the notice of motion to
“incorporate the substance of what is Rule 42(1)(a) and (b)” but held
that “no case whatsoever was advanced to justify the court granting the
order in terms of the amended notice of motion …”.
d. The jurisdictional requirements of Rule 42(1)(a) and (b) were not
canvassed or met.

[19] Thus the findings of the Court a quo as advanced by the Appellants were
essentially that the manner in which the relief was framed was incorrect in that the
amendment which sought to deal with a basis to grant relief in terms of Rule 42 (in
the alternative), was not competent for the Court a quo to grant.

[20] In sum, the Appellants argue that they were criticised for not bringing relief in
terms of Rule 42 but when attempts were made to invoke that Rule, the Court a quo
did not permit the Appellants to do so. In addition, the Court a quo simply failed to

deal with the entirety of the relief sought by the Appellants in their application, that
being a referral to oral evidence and variation of an interim order.

Appellants’ submission

[21] The record does not contain the grounds for appeal. However, the
submissions advanced by Mr Van Reenen in the Appellants’ Heads of argument
averred that the Court a quo erred in dismissing the request for a declaratory order
on the following basis:

22.1 The March 2020 order contains no provisions or words to the effect
that “the Main Application is dismissed” or words to that effect.
22.2 The Main Application could only be dismissed if the C ourt had
determined whether there had been compliance with the March 2020 order. No
such application had been considered by the Court;
22.3 The March 2020 order made no provision as to how compliance
would be determined, by whom, or when the 5 -day period to comply with same
commenced;
22.4 A failure of the First Appellant to comply with the March 2020 order
could never result in the Second to Eight Appellants’ applications being
dismissed; and
22.5 The First Appellant had in any event expla ined why she had failed to
comply timeously with the March 2020 order.

Respondents’ submissions

[22] The Respondents contend that the relief that the Appellants sought had
morphed from declaratory relief into that of a rescission application. The
Respondents also contend that the Appellants ostensibly made an about -turn at the
Court a quo calling for it to interpret paragraph 2 of the March 2020 order. They
contend that the Court a quo was not asked to determine the validity or otherwise of
the March 2020, or to decide whether it was granted in error or not. In support for
this contention, they aver that the Appellants conceded this point in their founding

affidavit8 . Although not cited correctly, as a basis for their contention, they rely on
the following submission in their heads of argument as follows: “… that it is
unnecessary to determine whether the order was properly granted or not. [sic]
Submit however that it is unnecessary to do so, as should the Court grant the
declaratory order, it would render the issue of the legitimacy of the order moot”.


Discussion

[23] In my view, this is a mischaracterization of one of the Appellants’ grounds of
appeal. The First Appell ant opined that it would be impossible to unravel the events
that led to the granting of the March 2020 order and not determine whether the order
was properly granted or not. They suggested that one need not, in essence, attempt
to unscramble the egg in th e event that the court a quo simply granted the
declaratory order and in that event, it would render the issue of the legitimacy of the
March 2020 order moot. Of course, if that was indeed done by the court a quo, then
that would have been the end of the m atter. I am therefore not in agreement with the
Respondents’ contention that this issue was conceded by the Appellants in their
founding affidavit.

[24] It is common cause that a myriad of orders was sought and granted in this
matter. In the founding affidavi t, the Appellants contend that on the First
Respondent’s own version, it was impossible for the First Appellant to comply with
the March 2020 order by 26 March 2020 as the order was only served on BXI on 7
April 2022. It would therefore be illogical, they argued, to interpret the March 2020
order to mean that the main application was ipso facto dismissed on 26 March 2020,
when a copy of the Order granted, and not served, was only served some two years
later.

[25] The Respondents in their answering affidavit co ncede that court orders
become effective upon proper service on the affected parties. They agree that on a
proper interpretation of the March 2020 Order, that the Appellants, when compelled,

proper interpretation of the March 2020 Order, that the Appellants, when compelled,

8 paras 43 to 44 of the Founding affidavit

had to discover the financial statements within 5 (five) days of service of the order.
They argue that the First Appellant became aware of the March 2020 order on 4
August 2022 and wilfully disregarded the order and decided to belatedly comply
within 20 days of becoming aware of the order. They argue that it is clear th at there
was proper service of the March 2020 on the Appellants and that the main
application was accordingly summarily dismissed as at 11 April 2022, five days after
service of the order.

[26] It is common cause that the March 2020 order was obtained via Chamber
Book application. Indeed, it is not unusual for applications such as these to be
brought in this manner. The Cape Practice Directives 9 sets out which matters may
be brought through the Chamber Book and there are obvious advantages for
adopting th is procedure; expediency and cost being the overarching factors. In
applications to compel, the requisite prayers that follow these types of application
invariably would be for the defaulting party to produce the requested information or
document within a prescribed time, from date of service of the order, failing which the
applicant, on papers duly supplemented in due course if the case may be, would, in
the event of non -compliance, be entitled to make application for the said action or
application to be dismissed as the case may be.

[27] Furthermore, the period for the running of the dies starts from the date of
service of the order, and not from the date that the order is granted. The
consequences of the latter are self -evident – in the event of a delay in th e issuing of
the order, a respondent might be in default through no fault of his or her doing.

[28] In casu, the March 2020 order directed the First Appellant to produce the
requested documents for inspection “ within 5 (Five) days”. It is silent as to when th is
period was meant to begin. Put differently, the order neither tells the First Appellant

period was meant to begin. Put differently, the order neither tells the First Appellant
to produce the said documents within five days from date of the order, nor to
produce the documents within five days of the date of service the order.


9 Western Cape: PN 37 [Service 5, 2017]

[29] The Respondents aver that the March 2020 order was indeed served on the
First Appellant, albeit two years later and that because there was non compliance
within the requisite dies of five days, that the Appellants are ipso facto barred and
the main application summari ly dismissed. Thus, clearly realising the deficiencies in
the order, the March 2020 order was served on First Appellant’s legal representative
on 7 April 2022 some two years after the order was granted. No explanation for the
delay was advanced. On 17 June 2022, the First Respondent made an application
for the dismissal and/or striking out of the Main application. According to a letter 10
directed to the First Respondent’s legal representatives, the First Appellant only
became aware of the March 2020 order w hen the application to strike -out, set down
for 29 August 2022, was served on the First Appellant. The First Appellant complied
with the March 2020 order on 24 August 2022. On the 26 th August 2022, the
application to strike was removed from the roll.

[30] There seems to be a dispute as to when the March order was served on the
First Appellant’s legal Representative. On the First Respondent’s version, the March
2020 was served on BXI on 7 April 2022. 11 Alternatively, First Appellant became
aware of it on 4 Augu st 2022 when the striking application was served and only
complied with the order 20 days after becoming aware of the order, on 24 August
2022. In my view, nothing turns of these dates as will become evident. The First
Respondent therefore contends on this basis, that the main application was
automatically dismissed.12 The First Respondent further contends that the ‘applicants
ought to suffer the consequences of the actions of their erstwhile attorneys ’. The
answering affidavit does not specify why the rema ining minor Appellants should
‘suffer the consequences’ of alleged non-compliance by one of the Appellants.

[31] The March 2020 order did not only fail to inform the party when the dies would

[31] The March 2020 order did not only fail to inform the party when the dies would
start running, but the order failed to make provision for the servi ce of the application
to strike out the Appellants’ defence. The Respondents seemed to be under the
misapprehension that the striking out of a defence is akin to an automatic barring for
failure to deliver a pleading as envisaged in Rule 26 of the Uniform Rules of Court.

10 Letter dated 24 August 2022 (“TK6”)
11 This is contrary to the letter of 24 August 2022. Unfortunately, neither proo f of service for the March
2020 order or the striking out application are annexed to the papers.
12 Again, on their version, it was dismissed on 11 April 2022.

Rule 26 provides that a party will be automatically barred if he or she fails to deliver a
replication or subsequent pleading within the time limits or, having failed to deliver a
pleading other than a replication or subsequent pleading wit hin the stipulated time
limits, then fails to deliver it within the time referred to in a notice by his opponent to
deliver such pleading. Being ipso facto barred for failure to deliver a pleading is not
the end of the road for a litigant. The party is sim ply barred from filing further
pleadings and the pleadings will be deemed closed unless a substantive application
is brought to remove the bar in terms of Rule 27. It can never be, that a failure to
deliver a pleading or comply with a notice will result in an ipso facto dismissal of a
litigant’s action in the absence of a substantive application to court seeking the
dismissal of his or her case and/or default judgment being taken, duly served on the
legal representative of the party or upon personal service , as the case may be. The
mere fact that an application is brought via Chamber Book, does not mean that
parties are at liberty to disregard the audi alteram partem principle, especially where
the dismissal of an action or application is sought.

[32] In the fir st ruling, the Court a quo dismissed the application for declaratory
relief. Unfortunately, if one has regard to the Reasons provided, there is no mention
at all as to how the court came to this decision. The Court a quo misdirected itself by
finding that the Appellants were barred from seeking a declaratory order with regard
to the March 2020 Order.

[33] As is apparent, there are eight Appellants. Startlingly, the effect of the order as
it stands allows the claims of the remaining seven Appellants to be struck out, mero
motu without notice due to the ostensible non -compliance of the First Appellant. Not
only is this impermissible, but it is also unconstitutional. What makes this matter all

only is this impermissible, but it is also unconstitutional. What makes this matter all
the more egregious, is the fact that the majority of the Appellants are or were minors
at the time claiming from their late father’s estate. The Court a quo also misdirected
itself by dismissing the application in not appreciating the consequences of a
dismissal of all seven Appellants’ causes of actions, when the order to compel was
only against the First Appellant.

[34] In its Reasons, the Court a quo referred to the various remedies available to
the First Appellant. It mentioned three options. The first was that it could appeal the
--

order. The Chamber Book application and consequent order was done ex parte. The
First Respondent avers that the Appellants could not appeal an order taken by
Chamber Book which they did not oppose. This is self -evident. In any event, the
Court a quo failed to take into account Rule 42 which allowed it to mero motu rescind
or vary an order. This a further basis for the appeal to succeed.

[35] The second decision made was the dismissal of the late amendment of the
notice of motion to include relief which was sought in terms of paragraph 2 of the
notice of motion. It is trite that a party can seek an amendment at any stage before
judgment in a matter has been delivered. What is striking in this matter is that the
Appellants were critic ized for not adopted that particular course of action and when
they did, they were ostensibly penalised by the court for doing so. It is trite that
parties should not probate and approbate in proceedings, least of all presiding
officers. The failure to ent ertain the amendment, even though same was not
necessary if the Court had simply dealt with the issue of the declaration, was a
misdirection. As a consequence, there is no need for me to consider whether or not
there was compliance with Rule 42 as stated.

[36] Finally, it is evident that the Court a quo failed to, at the very least, deal with
the substance of the application, which was for the main application to be referred to
oral evidence given the nature of the dispute. The Court a quo also failed to deal with
the interim request that pending the determination of the dispute in the main
application, that the Appellants were entitled to a distribution of moneys in lieu of
their rights to maintenance by the estate and for a contribution to their legal costs. I t
is common cause that the prohibition has been in place since July 2019. Clause 5 of
that Order provides as follows:

“Pending the determination of the matter, all income generated from the said

“Pending the determination of the matter, all income generated from the said
taxi business shall be paid by the First Applicant into t he estate banking
account, save for amounts reasonably required to fund the operation of the
said business.”

[37] The effect of that Order, as argued by the Appellants, is that all income
generated from the taxi business of the deceased is to be utilised for the operation of

that business or paid into the relevant banking account. The Appellants state that at
the time of the Deceased death, he was maintaining the First Appellant and her
siblings who relied upon the maintenance paid to them by the Deceased. They argue
that due, in part, to the conduct of the First Respondent, that they are unable to
maintain themselves and, inter alia, the minor children’s school fees are unpaid. The
Respondents did not deal with these allegations. They simply reiterated their position
that the main application had been dismissed.

[38] It is trite that the Master may, upon application and consent of the executor
provide subsidence of the deceased family or household in terms of section 26(1)(A)
of the Administration of Estates Act 13. The July 2019 order makes such payment
impossible and it was accordingly on this basis that the Appellants sought to vary
paragraph 5 of that order to permit the distribution of money to the Appellants in lieu
of their rights to maintenance.

[39] The Appellants contend, as stated, that the Respondents are silent on this
aspect. In fact, the parties could hardly have envisaged when the order was granted
in 2019 that it would take years for the main application to be heard, let alone
finalised. The court a quo failed to deal with this aspect and it is inconceivable that
such an application would have been dismissed mero motu. I am of the view that this
court is adequately placed to deal with the relief sought and that it would be a
travesty of justice if the matter were to be remitted back to the Court a quo for
hearing and determination when this court is apprised of all of the facts before it. I
therefore find no impediment to removing the restriction in paragraph 5 o f the July
2019 order and varying it to the extent as claimed since the prejudice to the
Appellants are clearly established.

[40] In sum, as a result of the various misdirection, the appeal must succeed.

Costs


13 66 of 1965

[41] It is trite that costs usually follow the result. In casu, since the First Respondent
is the executrix of the deceased estate, the Appellants seek a cost order against the
First Respondent in her personal capacity as opposed to from the deceased estate.
They argue that it would be unfair for the unreaso nable costs occasioned by the
opposition to the application and subsequent appeal to be paid from the estate as
the Appellants, as beneficiaries would, in essence be ultimately liable for those
costs. I am in agreement with this contention. It is clear tha t the Court a quo
misdirected itself in the adjudication of a matter which, on the face of it, could easily
have been resolved by a rectification of the order or Declarator as it was patently
evident that the order granted in the stated terms was a clear e rror and oversight by
the parties. The First Respondent opportunistically through her legal representatives
latched onto this error and sought to dismiss the cause of actions of the remaining
beneficiaries due to the ‘supposed’ non -compliance of the First Appellant. It is all the
more unfortunate as this is a family dispute between the mother as executrix and the
children as Appellants and it is always desirable for these types of matters to be
mediated before coming to court. In any event, I am satisfied t hat the opposition to
the application and subsequent appeal was unreasonable and there is no reason
why the beneficiaries, who would ultimately be impacted if the estate were ordered to
pay the costs, must be mulcted with the costs. I am satisfied that a p ersonal cost
order against the First Respondent is justified.

ORDER

[42] In the circumstances, the following order is made:

1. The appeal is upheld.
2. Paragraph 1 of the amended notice of motion dated 24 July 2023 is
granted.
3. The Main application is referred to oral evidence as per paragraph 3 of the
amended notice of motion for the determination of the issue as to whether

amended notice of motion for the determination of the issue as to whether
the First Respondent was married to the late Daniel Khumalo at the time of
his death.
4. Pending the determination of the Main application, the court order dated
30 July 2019 is varied to permit the distribution of moneys to the

Appellants in lieu of their rights to maintenance by the estate and for a
contribution to the Appellants’ legal costs, subject to the Master of the High
Court’s consent.
5. The First Respondent is ordered to pay the costs of the application and the
appeal in her personal capacity on Scale B.


______________________________
DS KUSEVITSKY
JUDGE OF THE HIGH COURT

I agree

________________________________
T NDITA
JUDGE OF THE HIGH COURT

I agree
________________________________
MI SAMELA
JUDGE OF THE HIGH COURT


For the Appellant : Adv. D Van Reenen
Instructed by : Lionel Murray Schwormstedt & Louw

For the Respondent : Adv. A Busakwe
Instructed by : Cuma Lennox Pinini