SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-024353
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE: 14-11-2025
In the matter between:-
A[…] M[…] Applicant
(IDENTITY NUMBER: 6[…])
and
M[…] A[…] M[…] Respondent
(IDENTITY NUMBER: 7[…])
JUDGMENT
CORAM: SCHOEMAN (AJ)
INTRODUCTION:
1. “[1] There are certain sayings that may fairly be described as
proverbs pertinent to litigation that have developed over time and are
apposite to this application. One is that where one litigates in haste,
one repents at leisure. This proverb underlines the importance of
properly considering one’s case before the launching of an application,
especially an urgent one, to ensure that a proper case for relief is
made out. Another is to avoid drafting with the proverbial "hot pen".
This leads ineluctably to emotive and sometimes incorrect statements
being made in the papers.”1
2. The above dicum finds, in this Court’s view, apposite application to the
manner in which this matter was handled by the Respondent and her
attorney of record, at the outset before the Urgent Court on 13
December 2024, and I wish to add to the above quote that sometimes
incorrect statements are also purposefully being made in open court.
3. The proceedings before the U rgent Court, set in motion a litany of
litigation, which in this Court’s view could have, and should have, been
avoided. Such a manner of litigation, was remarked upon by this
Court, as recently as 4 November 2025, in a judgment eloquently
penned by the Honourable Justice Moshoana in the matter of San
Miguel Brewing International Limited v Power Horse Energy
Drinks GMBHG [2025] ZAGPPHC 1155 (4 November 2025) . The
Court commenced its judgment with the following words, which are
very much applicable to the current matter (and the proceedings
preceding this Application), all the more considering that this
Application does not bring the parties one iota closer to disposing of
the real issues in their pending divorce action:-
1 See: Sekhethela v William, Fourways and Others (2023/085953) [2023] ZAGPJHC
1059 (21 September 2023)
“[1] Parties involved herein were embroiled in a never-ending
litigation since the year 2020. As at the handing down of
these reasons, there was no visible ending in sight of
this litigation. It seems to be an acceptable norm that
trademark litigation ought to be conducted tortuously.
Litigants in this type of litigation happily take a
nonchalant approach to finality.”
4. While the aforesaid judgment remarked upon litigation concerning
trademarks, in this Court’s experience, the same can be said for
matrimonial litigation, all the more when the parties are in the midst of
a divorce.
5. For ease of reference, the parties shall, in this judgment, be referred to
as they are cited in the present Application before Court.
6. On or about 3 December 2024, the Respondent caused service of an
Urgent Application seeking an Order for interim anti-dissipatory relief
aimed at, inter alia, interdicting and restraining the Applicant’s pension
fund from transferring 50% of the Applicant’s pension fund interest into
the Applicant’s bank account, pending the finalisation of the parties’
divorce action, which had already been instituted at that stage.
7. This Court was initially not made privy to the papers filed of record in
the Urgent Application, as same curiously does not appear on
CaseLines, notwithstanding the fact the current matter bears the same
Case Number as the Urgent Application from which it emanates.
8. The aforesaid U rgent Application resulted in an Order being granted,
on an unopposed basis, by the Honourable Madam Justice Collis, on
13 December 2024.
9. This Order is appended to the Applicant’s Founding Affidavit as
Annexure “AM4”.
10. It should be made clear right at the outset, that this Court is not sitting
as either a Court of Appeal, nor as a Court of Review, pertaining to the
Order granted on 13 December 2024, and as such, the merits or lack
thereof, of the Urgent Application, behoves no discussion, and/or
consideration, by this Court.
11. In its judgment, this Court shall simply confine itself to the basis for the
current Application, namely the granting of an adverse order for costs
against the Applicant, being the Respondent in the Urgent Application.
In doing so, the Court is tasked with having to consider the matter in
light of the provisions of Rule 42 of the Uniform Rules of Court,
alternatively the Common Law.
12. The parties, in their Joint Practice Note dated 3 November 2025, could
not agree as to the exact nature of the current Application, with the
Respondent contending that the Applicant is conflating the concept of
applying for a “variation” of an Order (as is sought by the Applicant
from a mere grammatical reading of Prayer 1 of the Notice of Motion),
with thát of a party seeking to “rescind” an Order.
13. In paragraph [12] of the Applicant’s Founding Affidavit, the Applicant
submits that he has “no choice” but to seek a rescission of the costs
portion of the Order by the Honourable Justice Collis, that he contends
has been granted erroneously.
14. While this might be confusing at first glance, having regard to the
wording of Prayer 1 of the Notice of Motion, the Court simply has to
resort to reading paragraph [13] of the Founding Affidavit to appreciate
what it is that the Applicant has set out to achieve with the current
Application. Ineloquently worded as it may be, there can be little
doubt that the Applicant seeks an Order that “does away”, so to speak,
with the adverse O rder pertaining to costs that was granted by the
Honourable Madam Justice Collis on 13 December 2024.
15. In Prayer 3 of the Notice of Motion, the Applicant prays for “Further
15. In Prayer 3 of the Notice of Motion, the Applicant prays for “Further
and/or alternative relief as this Honourable Court may deem fit” . This
confers upon this Court some measure of discretion under appropriate
circumstances. I shall return to this issue later.
16. In order to appreciate that which brought the parties before Court, one
needs to have regard to the chronological sequence of events set out
in the Applicant’s Founding Affidavit. The history of the litigation
between the parties , and the ancillary exchange of correspondence
between their respective attorneys of record in the midst thereof, is not
in dispute.
LEGAL QUESTION AND NATURE OF RELEIF SOUGHT:
17. The current Application is premised on the provisions of Rule 42 of the
Uniform Rules of Court.
18. Rule 42 provides as follows:
“42 Variation and rescission of orders
(1) The court may, in addition to any other powers in may have, mero
motu or upon application of any affected party, rescind or vary:
(a) An order or judgment erroneously sought or erroneously
granted in the absence of any party affected thereby;
(b) An order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the extent of such ambiguity,
error, or omission;
(c) An order or judgment granted as a result of a mistake common
to the parties.” (own emphasis)
19. It is trite law that a judgment or Order of the High Court can be set
aside under Section 23A of the Superior Courts Act , Rule 42, Rule
31(2)(b) and (6), on appeal, and on Common Law grounds.
20. The inherent jurisdiction of the High Court does not include the right to
interfere with the principle of finality of judgments, other than in the
circumstances specifically provided for in the Rules , or the C ommon
Law.
21. The purpose of Rule 42 is to “correct expeditiously an obvious wrong
judgment or order”. The Rule therefore makes provision for three
distinct procedures , only one of which finds application in this
instance, namely the rescission or variation of an order or judgment
erroneously sought, or erroneously granted , in the absence of a party
affected thereby, either by the Court mero motu, or as in this case,
upon the Application of any party affected thereby.
22. It is clear that Rule 42 gives the Court a discretion to order rescission
or variation, which discretion must be exercised judicially. I do not
read the Rule to mean that an election is to be made whether a party
seeks “rescission”, or “variation” , or that these two remedies are
mutually exclusive, if not mutually destructive.
23. In ZUMA v SECRETARY OF THE JUDICIAL COMMISSION OF
INQUIRY INTO ALLEGATIONS OF STATE CAPTURE,
CORRUPTION AND FRAUD IN THE PUBLIC SECTOR 2021 (11)
BCLR 1263 (CC), the majority of the Constitutional Court stated that:
“[53] It should be pointed out that once an Applicant has met
the requirements for rescission, a court is merely
endowed with a discretion to rescind its order. The
precise wording of Rule 42, after all, postulates that a
court ‘may’, not ‘must’, rescind or vary its order – the
Rule is merely an ‘empowering section and does not
compel the court’ to set aside or rescind anything. This
discretion must be exercised judicially”.
24. Broadly speaking, the exercise of a Court’s discretion is influenced by
considerations of fairness and justice, having regard to all the facts
and circumstances of a particular case. A Court will however not
exercise its discretion in favour of a rescission application if
unfavourable consequences would follow.
25. Most importantly, and where the Respondent’s attorney persisted with
the argument advanced in her Heads of Argument, namely that the
requirements of Rule 42 are not met, and that the Applicant is
conflating a “rescission” with a “variation”, the authorities are clear that
the fact that a rescission application is brought under subrule (1) of
Rule 42, does not mean that it cannot be entertained under Rule
31(2)(b) or the C ommon Law, provided that the requirements thereof
are met.2
26. With reference to the provision in the relevant subrule, namely “in
addition to any powers it may have” , said powers referred to are those
under the Common Law and Rule 31(2)(b).
27. At Common Law, a judgment can be varied, rescinded, or set aside on
the following grounds: -
i. Fraud;
ii. Justus error;
2 See: De Wet v Western Bank Ltd 1977 (4) SA 770 (T) at 780H-781A; Mutebwa v
Mutebwa 2001 (2) SA 193 (Tk); Swart v ABSA Bank Ltd 2009 (5) SA 219 (C)
iii. In certain exceptional circumstances when new
documents have been discovered;
iv. Where the judgment has been granted by default; and
v. In the absence between the parties of a valid agreement
to support the judgment, on the grounds of justa causa.
28. In order to succeed on a claim that a judgment be set aside on the
ground of fraud, it is necessary for the A pplicant to allege and prove
the following: -
28.1 That the successful litigant was a party to the fraud;
28.2 That the evidence was in fact incorrect and/or incomplete;
28.3 That it was made fraudulently and with the intent to mislead;
and
28.4 That it diverged to such an extent from the true facts that the
Court would, if the true facts had been placed before it, have
given a judgment other that that which it was induced by the
incorrect and/or incomplete evidence to give.
29. In short, it seems to be well settled, that to the above may be added
the requirement that it must be alleged and proved that, but for the
fraud, the Court would not have granted the judgment.
30. If a rescission of a default judgment is sought on the ground of fraud,
the party seeking said relief, in addition to the requirements set out
above, needs to provide a satisfactory explanation as to why he did
not raise his defence timeously.
31. With regards to rescission at Common Law, based on the discovery of
new documents, De Villiers JP concluded in the matter of
CHILDERLY ESTATE STORES v STANDARD BANK OF SA LTD
1924 OPD 163 at 166-9, which judgment has been cited with approval
in many subsequent authorities, that a judgment could be set aside on
the ground of the discovery of new documents after the judgment has
been given in certain exceptional circumstances only, once of which
(for purposes of the current dispute before me) includes cases in
which it was in consequence of the fraud and/or misrepresentations of
the opposite party that the relevant document/s was/were not found, or
produced at the trial.
32. When seeking a rescission, or a variation, of an O rder premised
thereupon that the O rder was erroneously sought or granted, in the
absence of a party affected thereby, the mistake may either be one
which appears on the record of proceedings , or one which
subsequently becomes apparent from the information made available
in an A pplication for Rescission of Judgment . Furthermore, the error
may have arisen either in the process of seeking the judgment on the
part of the Applicant for default judgment, on in the process of granting
default judgment on the part of the Court.
33. The Applicant for rescission of judgment is not required to show, over
and above the error, that there is good cause for the rescission as is
contemplated in Rule 31(2)(b).
34. In general terms therefore, a judgment is erroneously granted if there
existed at the time of its issue a fact of which the C ourt was unaware,
which would have precluded the granting of the judgment and which
would have induced the Court, if aware of it, not to grant the Order.
35. It follows that if material facts are not disclosed in an application, or if
fraud is committed (i.e. the facts are deliberately misstated to, or
withheld from, the Court), the Order will be erroneously granted.
3
36. An Order or judgment is also erroneously granted if it was not legally
competent for the Court to have made such an Order. In my view, this
would include an Order granted on an Urgent basis, where the
requisites of Rule 6(12) have not been met, or where the grounds
upon which the Applicant relied for urgency w ere mis-stated, or not in
existence, at the time that the Order was granted.
37. In most cases the error concerned would be apparent on the record of
the proceedings, however, in deciding whether a judgment was
erroneously granted, a Court is not confi ned to the record of
proceedings.4
38. Judgments have been rescinded under subrule (1) where, for
example, counsel for the Applicant in an Application had led the Court
mistakenly to believe that the Respondent had deliberately decided
not to consult his attorney or to appear at the hearing,
5 where the
Order was without legal foundation,6 or where notice of proceedings to
a party was required but was lacking. 7 I mention the latter as it is
common cause between the parties, which was again confirmed
during argument before me, that the attorney for the Respondent
failed, and/or neglected, and/or elected not to, respond to the letter
sent to her by the Applicant’s attorneys of record, and which is
appended to the Founding Affidavit as Annexure ‘AM2” . In the
mentioned letter the Respondent’s attorney was advised that the
3 See: Naidoo v Matlala NO 2012 (1) SA 143 (GNP); Jacobs v Van Niekerk NO
(unreported, WCC Case No: 114/2023 dated 2 February 2024 – a decision of the Full
Court) at paragraph [8]
4 See: Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6)
SA 87 (SCA) at 93C-H; Stander v ABSA Bank 1997 (4) SA 873 (E)
SA 87 (SCA) at 93C-H; Stander v ABSA Bank 1997 (4) SA 873 (E)
5 See: Theron No v United Democratic Front (Western Cape Region) 1984 (2) SA 532
(C)
6 See: Marais v Standard Credit Corporation Ltd 2002 (4) SA 892 (W)
7 See: Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6)
SA 87 (SCA) at 93H-94A
Applicant shall consent to the relief sought in the U rgent Court, on
condition as the Respondent (being the Applicant before the Urgent
Court) pays the costs associated with said Urgent Application.
39. In her address before me, the Respondent’s attorney of record
admitted having received the aforesaid correspondence on 5
December 2024 at 12:33, and she further conceded that she did not
proffer a reply to this letter. More importantly, the Respondent’s
attorney of record confirmed that the Applicant’s attorney of record
was neither informed that the proposal contained in the letter under
discussion was rejected, nor was she advised that the attorney for the
Respondent would proceed to move for the Order sought in the Urgent
Application, inclusive of the prayer for costs.
40. This Court has taken the initiative of securing access to the electronic
CaseLines profile, under the same case number, which contains the
papers filed of record in the U rgent Application before the Honourable
Madam Justice Collis. I have been advised by the attorney for the
Applicant in the current proceedings, that due to the technical
difficulties experienced with the Court Online platform of late, she was
advised by the Registrar to create a new CaseLines profile to which
documents could be manually uploaded. This would explain why two
separate CaseLines profiles exist, albeit under the same case number
and case reference.
41. From this Court’s independent perusal of the CaseLines profile for the
Urgent Application, and which was also canvassed with the parties’
legal representatives at the hearing of this matter, the following came
to light: -
41.1 An Order was granted in the U rgent Court by the Honourable
Madam Justice Collis on 13 December 2024. Of importance to
note is that the aforementioned Order commences with the
following “Having read the documents filed of record, (having)
heard the Legal Practitioner and having considered the matter” .
(my emphasis). Evidently, the Order was therefore granted
premised on a reading of the papers, coupled with the
submissions made by the Respondent’s legal representative on
the day.
41.2 Furthermore, the Respondent’s attorney of record signed no less
than two (2) Certificates of Urgency, wherein she certifies that the
matter is of such urgency, that it justifies the departure from the
ordinary time limits and provisions relating to service as set out in
the Uniform Rules of Court.
41.3 The aforesaid Certificates of Urgency fl y in the face of the fact
that the U rgent Application was served on 3 December 2024,
after the Respondent’s attorney of record has admittedly been
placed in possession of the correspondence from the Applicant’s
attorney of record (Annexure “AM1” to the Founding Affidavit),
dated and dispatched on 28 November 2024, wherein the
Respondent’s attorney was advised of the error in the Applicant’s
Financial Disclosure Form, and to which proof was appended that
the Applicant will in fact only retire on 1 November 2025. Despite
this assurance, the Respondent forged ahead with the Urgent
Application, using the error in the FDF of the Applicant (to the
effect that the Applicant would be retiring at the end of December
2024) as a basis for her alleged urgency.
41.4 It needs to be emphasised that the letter correcting the error, was
sent prior to service of the Respondent’s Urgent Application. This
in itself casts doubt as to the bona fides of the Urgent Application,
and the basis upon which the issue of urgency was premised.
41.5 What is however of grave concern to this Court is that the letters
appended to the Founding Affidavit as Annexures “AM1” and
“AM2”, do not appear anywhere on the CaseLines profile that
served before the Honourable Madam Justice Collis. In fact,
these documents were evidently withheld from the Court tasked
with having to determine the U rgent Application. It was
incumbent, in my view, upon the attorney for the Respondent to
place ALL relevant information before the Honourable Madam
Justice Collis at the time that the Urgent Application was heard.
41.6 What is most astounding, is that the Respondent’s attorney of
record personally deposed to a Service Affidavit on 12 December
2024, wherein she confirms service of the Application, but omits
to inform the Court of the existence of Annexure “AM2” to the
Founding Affidavit.
41.7 This Court is also concerned about the content of Paragraph 4.4.8
of the Respondent’s Founding Affidavit in support of her U rgent
Application, as she alleges therein that “I also learned from my
Attorney that the Respondent is going on pension in December
2024….”. While it is so that the Founding Affidavit was deposed
to some 2 (TWO) days before the letter from the Applicant’s
attorneys of record wherein the error in the Applicant’s FDF was
rectified, the Urgent Application was only served (thus “delivered”)
nearly a week later . There was, in my view, no reason why a
Supplementary Affidavit could not be filed dealing with the content
of Annexure “AM1”, or why this information could not, and was
not, placed before the Urgent Court.
42. In giving the Respondent’s attorney of record the benefit of the doubt,
however, this Court also had regard to the Practice Notes and Heads
of Argument prepared by the Respondent’s attorney of record, and
uploaded onto the 2
nd CaseLines profile, in the up march to the
proceedings before the Urgent Court.
43. The First Practice Note is found on the 2nd CaseLines profile at 16-5 to
16-10, and same is dated 26 November 2024. By this time, neither
Annexure “AM1”, nor Annexure “AM2”, was at hand.
44. The Second Practice Note is found on the 2 nd CaseLines profile at 16-
12 to 16-16. Similarly, this Practice Note is dated 26 November 2024.
45. However, when this Court perused the Heads of Argument prepared
by the Respondent’s attorneys of record, the first set of which is found
at CaseLines 19-29 to 19-40, it is evident that although these Heads of
Argument are undated, same was only uploaded onto CaseLines on
5/12/2024 at 2:08:16PM. This is after receipt of Annexure “AM1”, and
on the same date on which Annexure “AM2” was dispatched.
46. In Paragraph 19 of the aforesaid Heads of Argument, the
Respondent’s attorney of record makes the positive averment that the
Applicant “is going on pension by the end of December 2024” , without
making any attempt to inform the U rgent Court of the existence, or
content, of the correspondence appended to the Applicant’s Founding
Affidavit as Annexure “AM1”. When asked about this blatant omission
at the hearing of the current Application, the Respondent’s attorney of
record replied that she “cannot take it further”.
47. By a similar token, these Heads of Argument also makes absolutely
no reference to the letter appended to the Applicant’s Founding
Affidavit as Annexure “AM2” , and the Court was not advised in the
Heads of Argument that the Applicant consents to the Order, on
condition that he shall not be burdened with having to pay the costs of
the Urgent Application. Once again, and when prompted by this Court
to explain this non- disclosure, the Respondent’s attorney of record
submitted that she “cannot take it further”.
48. A second set of Heads of Argument was uploaded onto CaseLines on
5/12/2024 at 2:22:01PM. They seem to be identical to the Heads of
Argument referred to above, and as such, the same questions arise
from a reading thereof.
49. The Respondent’s attorney of record was given ample opportunity in
this Court to firstly gainsay the suggestion that she failed to place
relevant information (although it might have been detrimental to her
client’s case) before the Honourable Court tasked with having to
adjudicate the U rgent Application. She could not do so, least of all
convincingly. In fact, the attorney of record conceded that she did not
place this information before the Honourable Madam Justice Collis at
the time that the U rgent Application was heard, and that the existence
of Annexures “AM1” and “AM2” was not brought to the U rgent Court’s
attention on the day that the Order was granted. She could not
explain why this was so, apart from stating that she is of the view that
the error in the Applicant’s FDF could not be cured by “a mere letter
from his attorney”, and furthermore that the Applicant had to attend the
urgent proceedings to state his case, “even if only to oppose the issue
of costs”.
50. Why these unilateral decisions by the Respondent’s attorney were not
left in the hands of the Judge presiding in the U rgent Court, after
having been made aware of all the facts, is something that the
Respondent’s attorney of record, regrettably, could not justify to this
Court.
51. As such, this leads this Court to have to consider the material question
whether the party that obtained the Order sought to be varied or
rescinded, was procedurally entitled to it. If so, the Order cannot be
said to have been erroneously granted in the absence of the affected
party. An Applicant (or in this case the Respondent) would be
procedurally entitled to an Order when all affected parties were
adequately notified of the relief that may be gran ted in their absence.
In the present matter, however, it is common cause that the Applicant
and her attorney of record w ere not notified that, notwithstanding
acquiescing to the relief sought on condition that no cost order shall
acquiescing to the relief sought on condition that no cost order shall
follow, the Respondent was intent on pursuing an Order for costs
nonetheless. In my mind, the silence on the part of the Respondent
and her attorneys or record, rather points towards a tacit acceptance
of the condition precedent to the Applicant consenting to the relief
sought. At the very least, the U rgent Court ought to have been made
aware of this condition, and the reason for the Applicant’s default of
appearance on the day of the hearing. Regrettably, it was not.
52. By a similar token, the Court had to have been made aware thereof
that the substratum for the U rgent Application may very well have
fallen away. The Urgent Court was however again kept in the dark, so
to speak, in this regard.
53. Neither of the aforesaid two crucial pieces of information was
disclosed to the Honourable Madam Justice Collis at the hearing of
the Urgent Application, yet not as a result of anything that can be
attributed to the Applicant in the matter before me, or his legal
representatives.
54. In fact, the Code of Conduct for All Legal Practitioners, Candidate
Legal Practitioners and Juristic Entities, published in terms o f Section
36(1) of the Legal Practice Act, Act 28 of 2014, commences in Section
3 thereof to state, unequivocabl y so, that L egal Practitioners shall
maintain the highest standards of honesty and integrity and that they
shall treat the interests of their clients as paramount, provided that
their conduct shall always be subject to their duty to the Court ; the
interests of justice; the observance of the law; and the maintenance of
the ethical standards prescribed by this Code.
55. In addition to this, the Code of Conduct also prescribes that Legal
Practitioners shall refrain from doing anything that could or might (not
has or shall) bring the legal profession into disrepute.
56. Furthermore, and perhaps quite applicable to the current set of facts,
and thá t which played itself out before the U rgent Court, is the
provisions of Section 9.5.1 of the Code of Conduct, which states that: -
“9.5.1 The legal practitioner shall not assert or imply any fact, or
permit the assertion or implication of any fact, which he or she
knows to be untrue, nor shall he or she connive to substantiate
a falsehood.”
57. Under Section 21 of the Code of Conduct, “Misconduct” on the part of
an attorney inter alia includes a breach of the Ethical Code for Legal
Practitioners, or any conduct which would reasonabl y be considered
as misconduct on the part of an attorney, or which tends to bring the
attorney’s profession into disrepute.
58. Furthermore, and if regard is had to what this Court deems the duties
of the Respondent’s attorney were with regards to the full disclosure to
the Urgent Court, on the day of the hearing, of the existence of
Annexures “AM1” and “AM2” to the Applicant’s Founding Affidavit, it is
instructive to have regard to the provisions of Section 57 of the Code
of Conduct. A duty to disclose to a Court every fact known to the
Legal Practitioner that might reasonably have a material bearing on
the decision that the Court is required to make is, in this Court’s view,
non-negotiable.
59. Something further needs to also be said about the scathing allegations
made against the Honourable Madam Justice Collis, in the
Respondent’s papers. I interpose to state that the Respondent’s
attorney of record deposed to the Opposing Affidavit.
60. Without repeating the content of the Opposing Affidavit, especially of
and concerning a Judicial Officer verbatim, it is simply apposite to
summarise that the attorney of record for the Respondent, inter alia
makes the positive allegation that the Honour able Madam Justice
Collis’s handling of the matter , following the granting of the Order in
the Urgent Court, is to be referred to the Judge President of this
Division.
61. The attorney for the Respondent then elaborates further in the
Opposing Affidavit by stating that the Honourable Madam Justice
Collis failed to observe the Rules of Court, and that her conduct in
advising the Applicant, after the convening of a Judicial Case
Management Meeting, to apply for a rescission and/or variation of the
Order “does not constitute proper conduct by a sitting judge”.
62. By the Honourable Justice Collis so advising the Applicant’s attorney
of record, with the knowledge of the Respondent’s attorney of record,
but without her pre-empting the outcome of any further proceedings,
the Respondent’s attorney of record still finds it necessary to submit
under oath that Justice Collis’s conduct is “improper and ill -informed”
8, and she is in addition thereto outright accused of being “unfair and
bias”.9
63. Furthermore, the condescending and disrespectful tone adopted in the
Opposing Affidavit of, and regarding, a Judicial Officer, does not
escape this Court. The use of such language is strongly discouraged,
and it brings the entire legal system into disrepute. The Court expects
more of a Legal Practitioner deposing to Affidavit for, and on behalf, of
his/her client. Remarks such as “… but somehow Judge Collis did not
investigate this ”10; “Had Judge Collis been fair and unbiased in the
proceedings she would have remembered… in which case she would
have known…” 11; “Even when I submitted to the Honourable Judge
that the Applicant has already brought an application to appeal, it was
quickly brushed off and not much made of it …”12; “Furthermore, it is
quite improper for a sitting Judge to provide legal advice to a
practitioner, one to experience as to even be allowed to appear before
the above Honourable Court, to bring a specific type of application …
the administration of justice would be hampered by a judge deciding a
matter that she herself advised the Applicant to launch. Clearly, she
will be incline to granting the order, even one in such poor form as is
8 See: Paragraph 4.4 of the Opposing Affidavit at CaseLines 05-6
8 See: Paragraph 4.4 of the Opposing Affidavit at CaseLines 05-6
9 See: Footnote 9 supra and also paragraph 4.5 of the Opposing Affidavit at CaseLines 05-5
10 See: Paragraph 4.5 of the Opposing Affidavit at CaseLines 05-6
11 See: Paragraph 4.4 of the Opposing Affidavit at CaseLines 05-6
12 See: Paragraph 4.5 of Opposing Affidavit at CaseLines 05-7
the Applicant’s”13; “…the Court hearing this matter should completely
disregard all mention and reliance on the advice of Judge Collis…” 14
have no place in Court papers.
64. Perhaps the most offensive attack on the Judiciary in general, and the
integrity of the Honourable Madam Justice Collis in particular, is what
is stated, and/ or suggested, in P aragraph 10.4 of the Opposing
Affidavit, regarding the content of Annexure “AM6” to the Founding
Affidavit. Annexure “AM6” constitutes an electronic mail sent by the
Registrar of the Honourable Madam Justice Collis to the parties’ legal
representatives on 20 March 2025 at 9:04AM, advising the legal
representatives as follows: -
“Dear attorneys
The above matter refers. Kindly note that Judge Collis has listened
to the recordings of the proceedings during the Urgent Court
Proceedings and Judge is of the opinion that the First Respondent is
to apply for a rescission of the Order in terms of Rule 42.” (my
emphasis)
65. In dealing with the content of the aforesaid electronic mail, and the
advices received from the Honourable Madam Justice Collis therein
contained, the Respondent’s attorney has the temerity to remark in the
paragraph mentioned hereinbefore that “As things stand, we do no
know what it is that Judge Collis heard that convinced her that a
rescission application was the best way forward because all we know
is that the judge advised that she listened to the recordings.”
66. The aforesaid submission made under oath no less, is suggestive of
the Honourable Madam Justice Collis either misleading the parties in
13 See: Paragraph 4.6 of the Opposing Affidavit at CaseLines 05-7
14 See: Paragraph 4.7 of the Opposing Affidavit at CaseLines 05-7
that she has in fact not listened to the recordings of the proceedings
before her in the U rgent Court, alternatively, that the Honourable
Madam Justice Collis advised the parties incorrectly, after having
applied her mind to thát which she has heard from her reconsideration
of the record. In either event, and while the Court appreciates that
Judicial Officers are not immune to criticism, the Court regards the
untested and unsubstantiated averments contained in the Opposing
Affidavit to be contemptuous , and in bad taste, as same is suggestive
of incapacity, impropriety , gross incompetence, or gross misconduct
against a Judicial Officer.
67. In the event that the Respondent, or her attorney, felt aggrieved by the
perceived conduct of the Honourble Madam Justice Collis, they had
the right to file a complaint against the Judicial Officer for misconduct.
Such a complaint must be in the form of a sworn statement, or
affidavit, setting out all the facts relating to the matter, and it must be
submitted to the Judicial Services Commission, as per the general
fragment for judicial complaints set out in Section 14 of the Judicial
Service Commission Act , Act 9 of 1994. The process for complaints
against a Judge is detailed in Sections 15, 16 and 17 of the Act.
Neither the Respondent, nor her attorney of record, have availed
themselves of this opportunity, and as such, the criticism levelled
against the Judicial Officer in the Respondent’s papers, in the absence
of a formal complaint to the JSC, rings utterly hollow.
68. To add to the aforesaid, the Law Society of South Africa, which has
since been replaced by the Legal Practice Council , has cautioned
practitioners in a formal Press Release as early as 11 May 201 7, that
it “condemns any attack on the judiciary” and that “such unwarranted
attacks appear to have the sole aim of undermining the judiciary and
thereby fail to be in the interest of society.” In concluding the said
thereby fail to be in the interest of society.” In concluding the said
Press Release, L egal Practitioners were advised that “[S]hould they
feel strongly about their convictions, the LSSA urges the complainants
to submit these complaints with full grounds to the Judicial Services
Commission for urgent investigation, as this is the correct body to
investigate such serious allegations against a judge” . No regard was
seemingly had by the attorney of record for the Respondent for these
advices from her professional governing body.
69. In this regard, the Court is also mindful of the provisions of Section 9.7
of the Code of Conduct for Legal Practitioners, which dictates that a
legal practitioner shall not in the composition of pleadings and of
affidavits, gratuitously disparage, defame or otherwise use invective
words, and shall not recklessly make averments or allegations
unsubstantiated by the information given to the legal practitioner.
Once again, these provisions of the Code of Conduct were given no
regard to by the attorney for the Respondent.
70. At the hearing of this matter before me on Thursday, 6 November
2025, and after having heard arguments on the merits of the
Applicant’s Application, the Court engaged both parties’
representatives on the following issues:
70.1 Why the conduct of the Respondent’s attorney of record with
regards to her admitted non- disclosure of Annexures “AM1” and
“AM2” to the Honourable Madam Justice Collis at the hearing of
the Urgent Application should not be referred to the Legal
Practice Council for investigation, and possible disciplinary action;
70.2 Why the conduct of the Respondent’s attorney of record with
regards to the content of the Opposing Affidavit as far as it relates
to allegations made of, and concerning, a Judicial Officer should
not be referred to the Legal Practice Cou ncil for investigation, and
possible disciplinary action; and
70.3 Why, in the light of the conduct of the attorney of record, the Court
should not consider an O rder of costs de bonis propriis against
the Respondent’s attorney of record.
71. Counsel for the Applicant addressed the Court in this regard, and
submitted that she sees no reason why the conduct of the
Respondent’s attorney of record should not be referred to the Legal
Practice Council, and furthermore that she is of the considered view
that such conduct is deserving of a cost Order de bonis propriis.
72. The Respondent’s attorney of record, in turn, declined to make any
submissions, and reverted to submitting that she “cannot take it
further”. The attorney for the Respondent however indicated her
dissatisfaction with this Court’s enquiry and claimed that she feels
“ambushed and prejudiced” , and insisted that the Court should only
confine itself to determining whether the Order by the Honourable
Madam Justice Collis should be varied or rescinded, and nothing
more.
73. In light thereof that the Respondent’s attorney of record declined to
make any meaningful submissions regarding the questions posed in
the paragraphs above, the Court nonetheless thought it prudent to
direct the parties to submit Heads or Argument on the issue, in order
not to been seen to have “ambushed” or “prejudice” any of the parties.
74. In the premise, and on 6 November 2025, the Court reserved
judgment in this matter to 14 November 2025, and directed both
parties to file Heads of Argument by no later that 12:00 on 12
November 2025, dealing with the issue of a possible referral to the
Legal Practice Council, as well as the question of costs de bonis
propriis.
75. On 10 November 2025, the Applicant’s attorney of record filed her
Heads of Argument, as per this Court’s directive.
15
15 See: CaseLines 07-46 to 07-54
76. The Respondent’s attorney of record declined to file Heads of
Argument, as directed by this Court.
77. Instead, and on 12 November 2025, she unilaterally (and without
seeking leave from this Court) uploaded onto CaseLines a further
affidavit, in which she inter alia claims she was directed to depose to
said affidavit by this Court. In fact, she elaborates in P aragraph 1.3
thereof by saying that “[I] depose to this affidavit as directed by the
Honourable Schoeman AJ, who insisted that I state, under oath, why I
allegedly did not tell Judge Collis that the Applicant , per his attorneys,
delivered a letter stating that the Applicant was not retiring, why I have
not reported the matter to the Judge President and that I should make
a decision whether I should be reported to the LPC or be ordered to
pay the costs of this application de bonis propriis”.
78. This statement made under oath is factually incorrect and false. The
record of the proceedings on 6 November 2025 will show that the
parties were directed to deliver Heads of Argument on the issue
regarding a referral to the Legal Practice Council , and furthermore
whether costs de bonis propriis should be considered. At no stage
were the parties directed (or permission given) to file further affidavits,
and the Respondent was not called upon to make an election whether
she is to be reported to the Legal Practice Council or whether she
should rather be ordered to pay the costs of the A pplication in her
personal capacity as stated in Paragraph 6.1 of her further affidavit.
79. The Applicant’s attorney of record, as she was directed to do, filed
Heads of Argument, and it is improbable that, in the event that the
parties were directed to file Affidavits, same would not have seen the
light of day on the part of the Applicant. Once again, it seems that the
Respondent’s attorney of record is adopting a regrettable dismissive
attitude as far as this Court’s proceedings and directives are
concerned.
80. The Court appreciates that the Applicant has not had the opportunity
to answer, or consider, the content of the further affidavit deposed to
by the Respondent’s attorney. Furthermore, this affidavit was filed
without leave of the Court and notwithstanding specific directives that
the parties are to present Heads of Argument . In any event, from a
reading of the content thereof, same does not assist the Respondent’s
attorney in the least in my view. The converse is rather true. As such,
this Affidavit shal l not be accepted into evidence, and I shall regard it
as being pro non scripto” . This thus means that the Respondent’s
attorney purposeful ly made the election, as she confirms in her
affidavit, not to file Heads of Argument, or present the Court with any
argument, as to why this matter should not be brought under the
attention of the Legal Practice Council, and why an order for costs de
bonis propriis should not issue. The parties were given ample
opportunity to make their respective submissions in this regard, and
the Respondent’s attorney of record w as advised that she has the
right to obtain legal representation of her own, in order to defeat a
possible cost order against her, personally. She chose not to avail
herself of this opportunity, and as such, I am to adjudicate these
issues (as far as the attorney for the Respondent is concerned) on the
submissions made by the Respondent’s attorney in open C ourt only,
while having regard to her initial Heads of Argument (which does not
address the issues referred to above).
81. In considering the merits of the Application, it is this Court’s
considered view that the part of the Order of the Honourable Madam
Justice Collis that the Applicant seeks to vary or rescind, was
erroneously sought, or erroneously granted. It is common cause
further, that the said O rder was granted in the absence of the
Applicant.
82. As such, the Applicant has, in my view, satisfied the requirements of
Applicant.
82. As such, the Applicant has, in my view, satisfied the requirements of
Rule 42(1)(a) of the Uniform Rules of Court. As alluded to
hereinbefore, and even if the Court is wrong in this regard, nothing
precludes this Court from entertaining this A pplication under the
Common Law, provided that the requirements thereof are met.
83. The Court has a duty to correct an obvious wrong O rder and
judgment, and to do so expeditiously . This duty should however be
exercised judicially, and if the interests of justice warrant such a
variation or rescission.
84. As far as the Common Law grounds for rescission of judgment go, the
Court is satisfied, having regard to the evidence before it, that the
Order of the Honourble Madam Justice Collis is open to variation
and/or rescission, based on fraud, in that the evidence that was placed
before the urgent court was incorrect and/or incomplete, and
advanced with the intent to mislead. The Court has no doubt that, in
the event of the true facts being paced before her, the Honourable
Madam Justice Collis would not have granted the Order that she did.
85. To put i t plainly, but for the fraud, the Urgent Court would not have
granted the judgment. The attorney for the Respondent could not
point to any facts indicating the contrary, let alone convince this Court
that she made a complete disclosure of all the relevant information to
the Honourable Madam Justice Collis. This, in my view, cements the
notion that the Order stands to be set aside on the ground of fraud.
86. The further notion to allow for a variation and/or rescission at Common
Law, is also amplified by the fact that the Common Law additionally
allows for a rescission and/or variation of an Order where new
documents are discovered in cases in which it was as a consequence
of the fraud of the opposite party that the relevant documents were not
found, or produced at the hearing of the matter. Again, the CaseLines
profile, and the Heads of Argument of the Respondent’s attorney ,
which served before the U rgent Court, speak for itself. The relevant
documents do not appear on CaseLines, nor where they mentioned in
the Heads of Argument.
87. In the premise, the Court has no hesitation in varying the Order
granted by the Honourable Madam Justice Collis, as prayed for in
Prayer 1 of the Applicant’s Notice of Motion before me.
88. In her supplementary Heads of Argument, the Applicant’s attorney of
record seeks an O rder that the entire judgment and Order of the
Honourable Madam Justice Collis be set aside. This is not the relief
sought by the Applicant in his Notice of Motion. This Court is not
sitting as a Court of Appeal, or a Court of Review, and in my view the
amplified relief sought in the Heads of Argument is too substantive in
nature to fall under the prayer for “Further and/or alternative relief”.
89. The Court however makes no finding as to the remainder of the relief
that was granted by the Honourable Madam Justice Collis, or whether
the entire Order is to be rescinded, varied, or set aside. Should the
Applicant be so advised, he is to pursue a separate Application for
Rescission of Judgment in this regard.
90. This then brings the Court to the matter concerning the conduct of the
Respondent’s attorney of record. It is always a sad day when L egal
Practitioners are to be proverbially “hauled over the coals” by a Court.
91. In considering the general duties of a litigant, and all the more the
Legal Practitioners representing him/her/it, this Court can do no better
that to refer with approval to the following statements made by the
Honourable Mr. Justice Avvakoumides (AJ) in the recent decision of
Afriforum NPC v City of Tshwane Metropolitan Municipality and
Others [2025] ZAGPPHC 755 (31 July 2025):-
“171. In Electoral Commission v Mhlope and Others 2016 (5)
SA 1 (CC) at para 130 the Constitutional Court held:
“The rule of law is one of the cornerstones of our
constitutional democracy. And it is crucial for the survival
and vibrancy of our democracy that the observance of
the rule of law be given the prominence it deserves in
our constitutional design. To this end, no court should be
loath to declare conduct, that either has no legal basis or
constitutes a disregard for the law, inconsistent with
legality and the foundational value of the rule of law.
Courts are obliged to do so. To shy away from this duty
would require a sound jurisprudential basis. Since none
exists in this matter, it is only proper that we do the
inevitable.”
172. Before issuing the order which I intend to make, I need
to record a few aspects which I found warranting
comment. Both sides employed senior counsel, the
respondent’s having employed the services of three
counsel. I find that the employment of senior counsel
was warranted, subject to what follows. On the first day
of hearing, after lunch I was approached by counsel for
the parties in the corridor where the respondent’s senior
counsel advised me that he would not be able to
complete his submissions on t hat day, namely 24 July
2025. The application, in my view had been set down for
two days, and, when I enquired about 25 July 2025,
senior counsel for the respondents advised me that he
would be in Lesotho the next day and asked whether the
application could stand down to the following week.
173. I declined the request, firstly because my acting
appointment would end on 25 July 2025 and, secondly,
perhaps more importantly, counsel in opposed
applications, let alone special motions, should follow the
well-known practice of being available for the whole
week in which their case will be heard. I was then asked
whether the case could continue virtually on 25 July
2025. I acceded to the request, the applicant’s senior
counsel not having difficulty with the request. On the
morning of 25 July 2025 I was informed by Mr Manala,
the respondents’ one junior counsel that the senior
counsel had contacted him early that morning to inform
him that he had no internet connectivity and could not
appear. That was the last I saw or heard from the senior
counsel, and no explanation has been proffered to me by
the senior counsel for not having foreseen the possibility
of connectivity issues.
174. I must also make of my disapproval at the City having
employed three counsel and who put up a completely
unmeritorious defence to the applicant’s case. Ordinarily
I would have debated this question with counsel but
given the absence of the respondents’ senior counsel
and insufficient time, I find it appropriate to send out a
message to legal practitioners on prosecuting or
defending cases unmeritorious. The aim is not to
discourage legal practitioners from taking on cases
where the line between meritorious and unmeritorious
case is thin, for fear of being ordered to pay the costs of
the litigation de boniis propriis but rather warn legal
practitioner of the obligations to the court and limited
resources, let alone their client’s funds which may be
depleted for no good reason.
175. The Constitutional Court (“CC”) in Ex Parte Minister of
Home Affairs v Lawyers for Human Rights [2023] ZACC
34; 2024 (1) BCLR 70 (CC); 2024 (2) SA 58 (CC) (30
October 2023); See also: South African Social Security
Agency v Minister of Social Development (Corruption
Watch (NPC) RF Amicus Curiae) [2018] ZACC 26; 2018
JDR 1451 (CC); 2018 (10) BCLR 1291 (CC) (SASSA);
Public Protector v South African Reserve Bank [2019]
ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113
(CC), expressed its displeasure towards the legal
practitioners pursuing litigation in the manner that the
court found to be in contrast with their ethical duties and
said the following:
“[107] In Canada, the Court of Appeal for British
Columbia held in Lougheed that in an adversarial system
the usual approach of judicial non- intervention
presupposes that counsel will do their duty, not only to
their client but to the court in particular. That duty, said
the Court, entails: “to do right by their clients and right by
the court …. In this context, ‘right’ includes taking all
legal points deserving of consideration and not taking
points not so deserving. The reason is simple. Counsel
must assist the court in doing justice according to law”.
[108] My Colleague states in his article that the rules of
professional conduct of the law societies of Canada
contain provisions supporting a conclusion that it is
improper to advance a hopeless case.
[109] In his article, Rogers J concludes, amongst
others, in respect of the ethical duties of counsel (which,
self-evidently are of equal application to attorneys; the
emphasis is my own):
(a) Pleadings and affidavits must be scrupulously honest.
Nothing should be asserted or denied without
reasonable factual foundation.
(b) It is improper for counsel to act for a client in respect of
a claim or defence which is hopeless in law or on the
facts.
(c) A necessary correlative is that counsel must properly
research the law and insist on adequate factual
instructions.
(d) In principle counsel may properly conclude that a case
is hopeless on the facts though in general counsel
cannot be expected to be the arbiter of credibility.
(e) There is an ethical obligation to ensure that only
genuine and arguable issues are ventilated and that this
is achieved without delay.
(f) Misconduct of this kind must be assessed subjectively –
the question is whether counsel genuinely believes that
the case is not hopeless and is thus properly
arguable…” (own underlining for emphasis).
176. Relying on an earlier decision on the issue of costs being
awarded against the legal practitioners, the Full Court of
Gauteng Local Division in a judgment dated 29 July 2024,
penned by Mlambo JP, said the following:
“[25] In Multi -links Telecommunications Ltd v Africa Prepaid
Services Nigeria Ltd, this Division elaborated on the
principles relating to an order of costs de bonis propriis
as follows:
“Costs are ordinarily ordered on the party and party scale.
Only in exceptional circumstances and pursuant to a
discretion judicially exercised is a party ordered to pay
costs on a punitive scale. Even more exceptional is an
order that a legal representative should be ordered to pay
the costs out of [their] own pocket. It is quite correct, as
was submitted, that the obvious policy consideration
underlying the court’s reluctance to order costs against
legal representatives personally, is that attorneys and
counsel are expected to pursue their client’s rights and
interests fearlessly and vigorously without undue regard
for their personal convenience. In that context they ought
not to be intimidated either by their opponent or even, I
may add, by the court. Legal practitioners must present
their case fearlessly and vigorously, but always within the
context of set ethical rules that pertain to them, and which
are aimed at preventing practitioners from becoming
parties to a deception of the court. It is in this context that
society and the courts and the professions demand
absolute personal integrity and scrupulous honesty of
each practitioner .” (Citation omitted and emphasis
added.)
[26] The Court went on to explain the circumstances in which
an order of costs de bonis propriis can be granted against
a legal representative as follows:
“It is true that legal representatives sometimes make
errors of law, omit to comply fully with the rules of the
court or err in other ways related to the conduct of the
proceedings. This is an everyday occurrence. This does
not, however, per se ordinarily result in the court showing
its displeasure by ordering the particular legal practitioner
to pay the costs from his own pocket. Such an order is
reserved for conduct which substantially and materially
deviates from the standard expected of the legal
practitioner, such that their clients, the actual parties to the
litigation, cannot be expected to bear the costs, or
because the court feels compelled to mark its profound
displeasure at the conduct of an attorney in any particular
context. Examples are, dishonesty, obstruction of the
interest of justice, irresponsible and grossly negligent
conduct, litigating in a reckless manner, misleading the
court, and gross incompetent and a lack of care.” …
“[28] …In Ex Parte Minister of Home Affairs; In re Lawyers
for Human Rights v Minister of Home Affairs and Others,
supra, the Constitutional Court emphasised that-
“[l]egal practitioners are an integral part of our justice system.
They must uphold the rule of law, act diligently and
professionally. They owe a high ethical and moral duty to the
public in general, but in particular to their clients and to the
courts.”
92. Nothing advanced by the attorney for the Respondent when given
multiple opportunities to state her case, and present argument , as to
why her conduct should not be referred to the Legal Practice Council,
mitigates against such a referral.
93. By a similar token, the same holds true as regards to the attorney for
the Respondent being ordered to pay the costs of this Application de
bonis propriis. While, at best for the Respondent’s attorney of record,
her conduct before the Honourable Madam Justice Collis (by not
disclosing crucial information to the Court on the day of the hearing of
the Urgent Application) might be seen as a temporary lapse of
judgement, the fact that this conduct was perpetuated (and in fact
even amplified by the scathing att ack on Madam Justice Collis ) in the
opposition of this matter, both in the Opposing Affidavit filed, as well
as in her address to the Court, in my considered view, should be seen
as aggravating. There is no reason why the Respondent in this
Application should personally be burdened with having to pay the
costs of this Application, under circumstances where costs are to
following the event.
94. Under the circumstances, I make the following Order:
(a) That the Order granted by the Honourable Madam Justice
Collis on the 13 th of December 2024 is hereby varied as
follows:
By the deletion of Paragraph 6 of the Order, and replacing
same with the following: -
“That the costs of this Application shall be borne by the
Applicant”.
(b) That the costs of the Application for Variation which served
before me, shall be paid by the Respondent’s attorney of
record, Regina Bangiswani Tlou, de bonis propriis.
(c) That the content of Case Number: 024353- 2024, together with
a copy of this Judgment, shall be sent by the Registrar of this
Court, to the Legal Practice Council, for an investigation into
the conduct of the Respondent’s attorney of record, Regina
Bangiswani Tlou, and for possible disciplinary action, if the
Legal Practice Council deems it appropriate.
__________________________
SCHOEMAN, AJ
ACTING JUDGE: HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Date of hearing: 6 November 2025
Date of judgment delivered: 14 November 2025
Appearances:
For Applicant: Ms. R.I. Mogosi
For Respondent: Ms. R.B. Tlou