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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
Case Number: 2024/136756
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE 14 August 2025
SIGNATURE
In the matter between:
S[ ] M [ ] M [ ] Applicant
and
G [ ] M [ ] M [ ]
First Respondent
L[ ] F[ ] K[ ] Second Respondent
JUDGMENT
VIVIAN AJ
Introduction
[1] The applicant and the first respondent were married to each other in community
of property . On 22 October 2024, at the instance of the first respondent,
Kubushi J granted an order of divorce together with prayers dealing with
arrangements for their children and the patrimonial effects of the marriage.
[2] The first respondent did not attend court on 22 October 2024. She says that
she did not have funds to instruct her attorneys. Her attorneys wrote a letter to
the applicant’s attorneys in which they said that they would not be attending
court because they did not have “financial instructions”. I take this as a
euphemism for not having been placed in funds by the first respondent.
[3] On 25 November 2024, the applicant launched an application seeking a
variation of the 22 October 2024 order. She was represented by the same firm
of attorneys who had represented her in the divorce proceedings. She cited her
erstwhile husband as the first respondent and the court appointed liquidator as
the second respondent. The second respondent did not participate in the
proceedings. The first respondent opposes the application.
[4] The application is expressly brought in terms of Rule 42(1)(a). That Rule reads:
“(1) The court may, in addition to any ot her powers it may have, mero motu or
upon the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby …”
[5] It is common cause that the applicant is a person affected by the 22 October
2024 order. However, the first respondent dispu tes that the order was
erroneously sought or granted.
[6] Relying on the Constitutional Court’s judgment in Zuma v Secretary ,1 the first
respondent also disputes that the order was granted in the applicant’s absence
in the sense intended in Rule 42(1)(a).
[7] Mr Kilifile, who appeared for the applicant, argued that there is a difference
between the applicant's conduct in Zuma v Secretary and the applicant's
conduct in this matter. The applicant was absent from court because she could
not afford legal representation. For purposes of this judgment, I will assume
that the order was granted in her absence.
[8] The application turns on whether the order was erroneously sought or granted.
The requirement of erroneously sought or erroneously granted
[9] It is a well -known principle that once a court has issued a final order, it is
functus officio and may not ordinarily vary or rescind its own judgment. That is
the function of an appeal court.2
[10] As Jones AJA explained in Colyn, Rule 42(1) caters for mistake. It gives the
Court the power to rectify a mistake. But that power is limited to the express
categories in the three subrules. Rule 42(1) is procedural in nature.3
[11] Rule 42(1)(a) is confined to procedural errors. If there is no procedural error,
then the rule finds no application.4
[12] In Lodhi, Streicher JA held:
“Similarly, in a case where a plaintiff is procedurally entitled to judgment in the
absence of the defendant the judgment if granted cannot be said to have been
granted erroneously in the light of a subsequently disclosed defence. A Court
1 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28;
2021 (11) BCLR 1263 (CC) (17 September 2021)
2 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at para 4
3 Colyn v Tiger Food Industries Ltd, supra at para’s 6 to 7
3 Colyn v Tiger Food Industries Ltd, supra at para’s 6 to 7
4 Freedom Stationery (Pty) Ltd and Others v Hassam and Others 2019 (4) SA 459 (SCA) at para 18
which grants a judgment by default like the judgments we are presently
concerned with, does not grant the judgment on the basis that the defendant
does not have a defence: it grants the judgment on the basis that the defendant
has been notified of the plaintiff's claim as required by the Rules, that the
defendant, not having given notice of an intention to defend, is not defending
the matter and that the plaintiff is in terms of the Rules entitled to the order
sought. The existence or non -existence of a defence on the merits is an
irrelevant consideration and, if subsequently disclosed, cannot transform a
validly obtained judgment into an erroneous judgment.”5
The material facts
[13] The applicant’s case is that the 22 October 2024 order was erroneously
granted because Justice Kubushi’s attention was not drawn to a signed
settlement agreement between the parties.
[14] The circumstances in which the settlement agreement was signed are
essentially common cause. In 2012, the first respondent instituted divorce
proceedings in the Randburg Regional Magistrates Court. On 30 November
2015, i n the course of those proceedings, the parties signed a settlement
agreement. They agreed that the marriage relationship had irretrievably broken
down and that there were no reasonable prospects of reconciliation. They
agreed that the divorce would proceed on an unopposed basis.
[15] The settlement agreement addressed the care and maintenance of their two
children and the patrimonial effects of the marriage.
[16] However, the applicant and the first respondent then reconciled. The divorce
did not proceed. During that time, a further child was born of the marriage.
According to the first respondent, the matrimonial difficulties resurfaced in
2019. In 2023, he issued summons for divorce in this Court.
5 Lodhi 2 Properties Investments CC and Another v Bondev Developments (Pty) Ltd 2007 (6) SA 87
(SCA) at para 27
[17] The applicant opposed the action. The appearance to defend was signed by
her attorneys. A notice of bar was delivered on 20 June 2023. On 21 June
2023, the applicant’s attorneys delivered a notice of withdrawal. On 28 June
2023, the applicant delivered a plea and a counterclaim. The applicant
personally signed the plea and counterclaim.
[18] The applicant made no reference to the settlement agreement in either the plea
or the counterclaim. After she was eventually compelled to make discovery, she
did not discover the settlement agreement. The filing sheet for the discovery
affidavit was signed by the applicant’s attorneys , who had by then been
reinstated as her attorneys. I have not been able to locate a notice recording
such reinstatement, but it is common cause that the attorneys were reinstated.
[19] A pretrial conference was held before Ledwaba DJP on 6 May 2024. The
minute was signed by the attorneys for both parties . It recorded that the only
issues to be decided by the trial court were the divorce order and division of the
joint estate. The minute records that the parties could not agree on the division
of the joint estate. There was no reference to the signed settlement agreement.
[20] The matter was allocated for trial on 22 October 2024. The first respondent’s
attorney duly served a notice of set down on the applicant’s attorneys.
[21] On 2 October 2024, the first respondent gave notice of his intention to amend
his particulars of claim. The applicant did not object to the amendment , and on
17 October 2024, the first respondent’s attorney delivered the amended
particulars of claim. The amendment introduced a new paragraph in which it
was asserted that the parties had been unable to agree on division of the joint
estate, that a liquidator should be appointed, and that the second respondent
had consented to be appointed as liquidator. The r elief sought was amended
accordingly.
had consented to be appointed as liquidator. The r elief sought was amended
accordingly.
[22] On 2 October 2024, the first respondent’s attorneys sent an email directly to the
applicant. They did so because the applicant’s attorneys had failed to respond
to correspondence relating to a proposed further pre -trial. The attorneys
informed the applicant that the matter had been set down for 28 October 2024.
They also informed her that the particulars of claim had been amended to
include the appointment of a liquidator. Neither of these assertions was
factually correct. The date was wrong and the amendment had not yet been
effected.
[23] The first respondent replied to the email. She said that she was unavailable on
28 October 2024 due to a maintenance trial and that she was writing exams
between 17 and 25 October 2024.
[24] The first respondent’s attorneys responded and requested the applicant’s exam
timetable so they could approach the Registrar to seek an alternative date. The
applicant provided this information. The first respondent’s attorneys then
realised their mistake regarding the trial date and sent an email to correct their
error. The applicant again responded, reiterating that she was writing exams.
[25] On 3 October 2024, the first respondent’s attorneys sent a letter to the
applicant. They pointed out that the applicant was not, in fact, writing an exam
on 22 October 2024. They stated that, in the circumstances, the first
respondent would not agree to a postponement. They reiterated that the
particulars of claim had been amended to include the appointment of a
liquidator. They explained that the consequence of the appointment would be
that the assets of the joint estate, including the matrimonial home, wo uld be
sold, and her pension fund would be attached. They asked the applicant to
please attend court on 22 October 2024 and informed her that court started at
09h30.
[26] On 21 October 2024, the applicant’s attorneys sent a letter to the first
respondent’s attorneys. They said that they did not have financial instructions
and would not be appearing in court. They invited the first respondent’s
attorneys to contact their client directly, and gave her contact details. They did
not, however, formally withdraw as attorneys.
[27] The applicant did not attend court on 22 October 2024. The matter came before
Kubushi J. She granted an order that essentially mirrors the relief sought in the
amended particulars of claim.
[28] The applicant, once again represented by the same attorneys, then launched
this application.
Analysis
[29] The heart of the applicant’s case is that the order was erroneously granted
because the parties had entered into a binding settlement agreement. She said
that, in entering into the settlement agreement, the first respondent had waived
any right or claim in respect of her pension interest, the movable property and
the debts of the joint estate.
[30] The applicant said that the first respondent failed to disclose the settlement
agreement to Kubushi J. During oral argument, Mr Kilifile referred me to the
judgment in this Division in Du Preez v Du Preez 6 as authority for the
submission that there is a duty on litigants to act with the utmost good faith
(uberrimae fidei) and to disclose all relevant information, even if it is adverse to
them.
[31] This submission has two difficulties. The first is that Du Preez v Du Preez was
a Rule 43 application. Murphy J said:
“Moreover, the power of the court in rule 43 proceedings in terms of rule 43(5)
is to 'dismiss the application or make such order as it thinks fit to ensure a just
and expeditious decision'. The discretion is essentially an equitable one and
has accordingly to be exercised judicially with regard to all relevant
considerations. A misstatement of one aspect of relevant information invariably
will colour other aspects with the possible (or likely) result that fairness will not
be done. Consequently, I would assume there is a duty on applicants in rule 43
6 Du Preez v Du Preez 2009 (6) SA 28 (T)
applications seeking equitable redress to act with the utmost good faith
(uberrimae fidei) and to disclose fully all material information regarding their
financial affairs. Any false disclosure or material non -disclosure would mean
that he or she is not before the court with 'clean hands' and, on that ground
alone, the court will be justified in refusing relief.”7
[32] Murphy J confined his statement to Rule 43 applications. He held that because
a misstatement of one aspect of relevant information in a Rule 43 application
would invariably colour other aspects, which could result in fairness not being
done, there is a duty on applicants in Rule 43 applications to act with the
utmost good face and fully disclose information relating to their financial affairs.
I have noted up the judgment. This passage has been cited in a number of
other judgments, but each one is in the context of a Rule 43 application.
[33] There is a similar duty in ex parte applications.8 The reason is plain – the other
party does not get an opportunity to present its case in an ex parte application.
[34] There is, however, no such general duty of disclosure in civil proceedings.
[35] The second difficulty with the submission is that the underlying assumption is
not only that the first respondent knew he had signed the settlement
agreement, but also that he knew it was binding on both parties, despite it not
having been made an order of court in the earlier proceedings. There is no
evidence from which this assumption can be inferred.
[36] Indeed, the conduct of both the applicant and the first respondent suggests that
neither considered that the settlement agreement was binding. Neither
discovered the document, neither referred to it in pleadings. The attorneys for
both parties met before the Deputy Judge President and agreed that the issue
to be decided at trial was the division of the joint estate.
7 Du Preez v Du Preez, supra at para 16
7 Du Preez v Du Preez, supra at para 16
8 Schlesinger v Schlesinger 1979 (4) SA 342 (W) ; National Director of Public Prosecutions v Basson
2002 (1) SA 419 (SCA) at para 21
[37] This was an agreement that was deliberately reached at a pre -trial conference.
As Harms JA explained: “ To allow a party, without special circumstances, to
resile from an agreement deliberately reached at a pretrial conference would be
to negate the object of Rule 37, which is to limit issues and to curtail the scope
of the litigation … If a party elects to limit the ambit of his case, the election is
usually binding.”9
[38] There is a further difficulty with the applicant’s case. When the matter came
before Kubushi J, the first respondent was procedurally entitled to judgment.
Her attention was not drawn to the settlement agreement. But the settlement
agreement is, at best, a defence to the first respondent’s claim. Kubushi J did
not make a procedural error in granting the order sought by the first
respondent. Reliance on non -disclosure of the settlement agreement as
resulting in the order being erroneously granted falls foul of the rule in Colbyn
and Lodhi.
[39] The applicant has accordingly not established the jurisdiction facts for this court
to exercise its discretion in terms of Rule 42(1)(a). The application must
accordingly be dismissed.
[40] Having reached this conclusion, it is not necessary for me to consider whether
the settlement agreement in fact remained in effect and whether reliance on it
would have been a defence to the first respondent’s claim.
Counterapplication
[41] The first respondent brought a counterapplication. He sought a variation of
paragraph 7 of the 22 October 2024 order.
[42] Paragraph 7 is an order in terms of Section 7(8) of the Divorce Act (Act 70 of
1979). When the pension fund was notified of the order, it indicated that the
9 FiltaMatix (Pty) Limited v Freudenberg & others [1998] 1 All SA 239 (A) at page 247
order did not sufficiently identify the pension interest that is the subject of the
order.
[43] No costs were sought in the counterapplication.
[44] The applicant did not oppose the counterapplication. Mr Kilifile properly
conceded that, if the main application did not succeed, the counterapplication
should be granted.
[45] The court is entitled in terms of Rule 42(1)(b) to vary an order to correct an
ambiguity, or a patent error or omission, but only to the extent of such
ambiguity, error or omission. I intend to do so. However, the wording proposed
by the first respondent is not consistent with the usual form of order in this
Division. I will grant an appropriate order in the form granted by the Full Court in
M.A.P v F.M.A.N.10
Costs of the main application
[46] In his answering affidavit, the first respondent described the conduct of the
applicant’s erstwhile attorneys as unethical. The first respondent sought costs
against the attorneys de bonis propriis.
[47] Mr Baloyi also pointed out that the attorneys withdrew as the applicant’s
attorneys in this application shortly before the hearing and that new attorneys
were appointed on 30 July 2025. He suggested that this was an apparent
attempt to avoid a costs order against the attorneys.
[48] At my request, the applicant’s erstwhile attorneys uploaded an affidavit in which
they explained their conduct. The explanation is not perfect. In particular, there
is no proper explanation for their failure to withdraw in the divorce action and
their letter of 21 October 2024.
10 M.A.P v F.M.A.N (A151/2023) [2024] ZAGPPHC 858 (29 August 2024) at para 29
[49] Once an attorney is on record in a matter, the attorney owes both their client
and the court, a duty to withdraw from the matter timeously. It is not sufficient to
simply inform the other party that the attorney will not be in court. A proper
notice of withdrawal must be delivered. The notice must comply with the
requirements of Rule 16(4). 11 Moreover, as Didcott J explained (in the context
of an appeal):
“If an attorney wishes to carry on, hoping that at the last minute he will be given
funds, and does not wish to withdraw at an earlier stage of the case because
he will jeopardise his chance of being paid, then he must be willing to take the
risk that he will find himself financing the appeal and go on with it. In other
words, he either withdraws at an appropriate stage or he takes the risk and
carries on and does the work.”12
[50] Despite this, having considered the explanation, I am satisfied that it would not
be appropriate to grant costs against the attorneys. This is particularly because
the reason for their withdrawal in this application was that the applicant
terminated their mandate. They then promptly delivered a notice of withdrawal.
There are no facts from which I can draw the inference suggested by Mr Baloyi.
[51] In the circumstances, it is appropriate to order the applicant to pay the costs of
the main application. Mr Baloyi asked for counsel’s costs on Scale B. I consider
that the matter is of sufficient complexity and importance to the parties to justify
that scale.
Conclusion
[52] I find that the applicant has not made out a case for the relief sought in the
notice of motion. The application should be dismissed. The counterapplication
should be granted.
11 Transorient Freight Transporters Corporation v Eurocargo Co-Ordinators (Pty) Ltd 1984 (3) SA 542
(W) at 546B
12 S v Ndima 1977 (3) SA 1095 (N) at 1097 B to D – as Didcott J pointed out in MacDonald t/a Happy
Days Cafe v Neethling 1990 (4) SA 30 (N) at 31D, this was a full bench decision.
[53] I accordingly order as follows:
53.1. The application is dismissed.
53.2. The applicant is to pay the first respondent’s costs in respect of the
application, with counsel’s fees to be taxed on Scale B.
53.3. Paragraph 7 of the order granted on 22 October 2024 in case number
038284/2023 is varied by deleting the existing paragraph and inserting
in its place the following:
“7.1 It is recorded that the Defendant is a member of the South African
Broadcasting Corporation Pension Fund under membership
number M[...].
7.2 In section 7(8)(a) of the Divorce Act 70 of 1979, 50% of the
Defendant’s pension interest in the South African Broadcasting
Corporation Pension Fund, calculated as at the date of divorce, is
assigned to the Plaintiff.
7.3 An endorsement is to be made in the records of the South African
Broadcasting Corporation Pension Fund that the said 50% is
payable to the Plaintiff within sixty days of the South African
Broadcasting Corporation Pension Fund being informed of how
the amount must be dealt with in accordance with the Plaintiff’s
election.”
S.C VIVIAN
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
For the Applicant: AB Kilifile
Instructed by Malele Attorneys Inc.
For the Respondents: F Baloyi
Instructed by ET Nkuna Attorneys
Date of hearing: 11 August 2025
Date Delivered: 14 August 2025
MODE OF DELIVERY: This Judgment was handed down electronically by circulation
to the parties’ and or parties’ representatives by email and by being uploaded to
CaseLines. The delivery date and time are deemed to be 10h00 on 14 August 2025.