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

Not Reportable
Case no: 14686/2024

In the matter between:

RASHIEDA SARLIE Applicant

and

RUKEYA ELY First Respondent

RUKEYA ELY N.O. Second Respondent

THE MASTER OF THE HIGH COURT,
CAPE TOWN Third Respondent

NEDBANK LIMITED Fourth Respondent

Coram: JONKER AJ
Heard: 29 July 2025
Delivered: 30 July 2025
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ORDER


1. Condonation for the late filing of the rescission application is granted.
2. The order of this court dated 6 August 2024 is rescinded.
3. The costs shall be costs in the main application.


JUDGMENT


JONKER AJ:

INTRODUCTION

[1] This is an application for rescission in terms of Rule 31(1)(b) and Rule
42(1)(a) of the Uniform Rules of Court, alternatively under the common law of a
court order granted by Samela J on 6 August 2024 in motion court. The order
was granted in the absence of any appearance or opposition, at th e time that the
matter was called and dealt with by the presiding Judge.

[2] The application is accompanied by an application for condonation for the
late filing thereof. The applicant seeks an order setting aside the judgment
granted, contending that it was erroneously sought and granted in her absence,
despite her presence in court and intention to oppose, which was not brought to
the court’s attention until after the order had been issued.

FACTUAL BACKGROUND

[3] The applicant and th e first respondent are sisters. Their mother passed
away on 21 March 2023. She had executed two wills during her lifetime: one
dated 26 April 2006 and another dated 17 July 2015.

[4] The 2006 will named all siblings, including the applicant and the first
respondent, as beneficiaries, and appointed the first respondent as the executrix.
The 2015 will, which was professionally drafted by Nedbank (the third
respondent), nominated Nedbank as executor and named the applicant as the
sole beneficiary.

[5] The es tate was initially reported to the Master on the basis of the 2006
will, and the first respondent was appointed as executrix. However, upon
discovery of the 2015 will, it was submitted to the Master, who then issued a
notice to the first respondent in May 2024, advising of the newer will and
revoking her appointment.

[6] In response, the first respondent launched an application in July 2024,
seeking relief aimed at setting aside the Master’s decision to revoke the 2006 will
and her appointment, and to allow interested parties to make representations
before any decision was taken by the Master.

[7] The applicant, having initially consen ted to the relief sought, signed a
supporting affidavit, unaware at the time that the 2015 will had been accepted
and that she had been named the sole heir. On 21 June 2024, Nedbank informed
her of the existence and status of the 2015 will. The applicant then consulted with
an attorney but, due to practical and financial constraints, legal representation
could not be secured in time for the hearing of 6 August 2024.

[8] On the day of the hearing, the applicant attended court in person.
However, she was onl y noticed by the usher and counsel after the matter had
already been called and the order granted.

[9] Notably, while the notice of motion sought interim relief, final relief was
handed up and granted by the court without prior notice to the affected par ties,
including the applicant.

[10] The applicant now seeks rescission of the order on the basis that it was
erroneously granted in her absence and under a misapprehension of the facts.
She also seeks condonation for the delay in launching this application, which was
filed in November 2024.

PRINCIPLES OF RESCISSION

[11] There are three bases for rescission of a default judgment – rule 31(2)(b),
rule 42(1)(a), and the common law. The substantive requirements for rescission
are different under rule 42(1)(a) compared to rule 31(2)(b) and the common law.

[12] Under rule 31(2)(b) and the common law 1 a court has a general discretion
to rescind. It will consider: (a) whether the applicant for rescission was in wilful
default; (b) whether the rescission is brought in good faith; and (c) whether the
defendant has a bona fide defence to the claim. 2 These are not formal
requirements – the court retains a wide discretion.3

[13] Rule 42(1)(a) is different. The rule requires an applicant to show that the
judgment was “erroneously sought or erroneously granted in the absence of any
party affected thereby”. An order will be erroneously granted “if there existed at
the time of its issue a fact which the court was unaware of, which would have
precluded the granting of the judgment and which would have induced the court,

1 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at 9E–F.
2 See, for example, EH Hassim Hardware (Pty) Ltd v Fab Tanks CC [2017] ZASCA 145 at para
12.
3 Wahl v Prinswill Beleggings (Edms) Bpk 1984 (1) SA 457 (T).

if aware of it, not to grant the judgment.” 4 It is not necessary for a party to show
good cause under the subrule. In Rossiter, Mbha J wrote: “If the default judgment
was erroneously sought or granted, a court should without more, grant the order
for rescission.”

[14] A court does not have a discretion. This was confirmed by the
Constitutional Court in Ferris.5

[15] In terms of the common law, a judgment may also be rescinded upon a
showing of good cause, which includes: (a) a reasonable and acceptable
explanation for the default; and (b) a bona fide defence that carries some
prospect of success.

[16] The principles governing condonation applications are well established:
the court has a discretion to be exercised judicially upon a consideration of all
relevant facts, including the degree of lateness, the explanation therefor, the
prospects of success, and the importance of the case.6

ANALYSIS OF THE PLEADINGS AND CONDUCT OF THE PARTIES

[17] It is common cause that the court granted final relief on 6 August 2024 in
the absence of the applicant, who was also unaware that the relief had shifted
from interim to final. The applicant was physically present in court and wished to
oppose the application but was not recognised as such until after the matter had
already been disposed of, due to no fault of either the Court or Counsel, I might
add. Motion Court proceedings are conducted in a fluid and expeditious manner,
and matters are called and disposed o f swiftly. Counsel for the first respondent
concedes rightly so, when prompted by the court, that had the court known of her

4 Rossitter & Others v Nedbank Ltd [2015] ZASCA 196 at para 16.
5 Ferris and Another v FirstRand Bank Ltd [2013] ZACC 46; 2014 (3) SA 39 (CC); 2014 (3) BCLR
321
(CC) at fn 19.
6 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A)..

presence and intention to oppose on the day, the order would not have been
granted. This alone, in my view, constitutes a material irregularity justifying
rescission under Rule 42(1)(a). This Court has no discretion but to rescind the
judgment on the basis alone.

[18] It is furthermore procedurally irregular and fundamentally unfair for an
applicant to alter the relief sought in the notice of motion, post -service, and to
present final relief on the day the matter is heard without providing proper notice
to the respondents. The purpose of a notice of motion is to clearly set out the
relief sought, thereby affording respondents a fair o pportunity to consider,
oppose, or consent to such relief. In the present matter, the relief initially sought
was expressly framed as interim in nature. No amendment was affected to the
notice of motion, and no communication was made to alert the responden ts to
the intention to pursue final relief. The fact that the Master may have filed a
report — which, this Court has not seen — can only be assumed to have
addressed the interim relief as set out in the original notice of motion, and not
what was ultimately reflected in the draft order handed up.

[19] The submission by counsel for the first respondent that the Master did not
oppose the relief and was abiding, does not cure this defect, as neither the
Master nor any other respondent had knowledge of the ch ange in relief. Litigants
are entitled to know, with certainty, the nature and extent of the relief being
pursued against them. The submission made by counsel that it was unnecessary
to adhere to the original relief in order to avoid incurring further cost s is wholly
untenable and must be rejected. It is not open to an applicant to circumvent
procedural safeguards under the guise of efficiency, particularly where the result
is the granting of final relief in the absence of notice and due process.

[20] The applicant does however also comply with the requirements of Rule

[20] The applicant does however also comply with the requirements of Rule
rule 31(2)(b) and the common law. The delay from August to November 2024 is
explained by the applicant in a manner that is both plausible and reasonable.

She engaged legal assistance promptly after being notified by Nedbank of the
status of the 2015 will. She was required to make financial arrangements, obtain
access to the court recording from 6 August 2024, and received legal advice
based on the audio recording, which was only accessed in th e last part of
October 2024 and which confirmed that the court had only been informed of her
presence post facto.

[21] These steps demonstrate that the delay was not wilful or due to disregard
of the Rules. I am satisfied that the applicant has shown good cause for the
delay, and condonation is accordingly granted.

[22] Furthermore, the applicant has set out a bona fide defence. She avers that
she is the sole beneficiary under the 2015 will, which was accepted by the
Master, and disputes the assertion that her mother lacked capacity to execute
that will. She contends that the first respondent’s reliance on her prior allegations
in protection order proceedings is taken out of context, as the averment of mental
illness was aimed at halting famil ial coercion of the deceased in respect of
changes to her will. Also, the protection order proceedings took place in 2021, 6
years after the conclusion of the 2015 will. The circumstances could notionally
have been different.

[23] The applicant’s claim th at no expert or medical evidence was placed
before the court to support an incapacity defence is unchallenged. These
assertions raise bona fide disputes of fact which warrant proper ventilation in due
course. This Court need not enter the merits at this st age other to establish that
there is a triable issue.

[24] In light of the above, the applicant has demonstrated not only that the
order was erroneously granted in her absence, but also that she has a bona fide
defence with prospects of success.

CONCLUSION

[25] The court is satisfied that the applicant has provided a reasonable
explanation for her delay and has demonstrated good cause for condonation.
Furthermore, she has made out a compelling case for rescission under Rule
42(1), Rule 31(2)(a) and the common law.

COSTS

[26] The general rule is that costs follow the result. However, in view of the fact
that the effect of this order is to restore the parties to the position they were at on
at 6 August 2024, I consider it just and equitable that the costs of this rescission
application be costs in the cause of the main application.

ORDER

[27] In the result, the following order is made:

1. Condonation for the late filing of the rescission application is granted.
2. The order of this court dated 6 August 2024 is rescinded.
3. The costs shall be costs in the main application.


_____________________________
E JONKER
ACTING JUDGE OF THE HIGH COURT


Appearances:

For applicant: Adv A Lawrence

Instructed by: Y Agherdien Associates

For First Respondent: Adv JT Benade
Instructed by: Mike Strydom Attorneys