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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 41282/14
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
___19 DECEMBER 2025
In the matter between:
ADV MZUKISI MGXASHE APPLICANT
V
N[…]: K[…] OBO N[…] E S[…] 1
ST RESPONDENT
THE MASTER OF THE HIGH COURT 2ND RESPONDENT
ROAD ACCIDENT FUND 3RD RESPONDENT
JUDGMENT
MAHOMED J
INTRODUCTION
The applicant in this matter seeks to declare an order granted by Lamont J on 6
September 2021, a nullity. The applicant is an advocate practising in the jurisdiction
of this Court. On 17 September 2015 he was appointed curator ad litem to a minor
child, E […] N[…] , in a personal injury claim against the third respondent. On 6
September 202 1, in an opposed application for his removal as curator, Lamont J
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granted ordered he be removed and he was ordered to pay the costs of the
application.
BACKGROUND
[1] According to the applicant prior to his appointment as curator ad litem the
third respondent (“the Raf”) made an interim payment of R800 000 to the
applicant’s instructing attorney Ngento, however Ngento failed to disclose this
to him nor the mother of the minor child of this payment.
[2] Judge Moshidi was appointed as case manager in th e matter of N […] and
N[…] both claimants against the third respondent (“the Fund”) . Moshidi J
held case management meetings in the matters during 2018. On 14
November 2018 Moshidi J h ad regard to the applicant’s notice of termination
of the attorney’s mandate, in terms of Rule 16(2) (a) of the Superior Courts
Act 10 of 2013. The attorney was removed, a ccording to the applicant
Moshidi J ordered the attorney to leave the management meeting as he was
no longer the attorney for the plaintiff, having accepted his removal by the
applicant.
[3] On 26 August 2019, the applicant was informed that Lamont J was to replace
Moshidi J as case manager. Lamont J ordered the applicant to file answering
papers to an application brought by Ngento for the applicant’s removal as
curator. On 6 September 2019 Lamont J having heard submissions ordered
the applicant’s removal with costs . Thereafter the applicant was refused
leave to appeal and Ngento attorneys sought to execute the cost order.
[4] Lamont J found that the applicant had unilaterally removed the attorney,
when he ought to have obtained leave of the court, the applicant was found
3
to have caused long delays in the progress of the matter and found he was
not acting in the interest of the plaintiff.
[5] According to the applicant Lamont J simply substituted Moshidi J as case
manager and Moshidi J acceptance of the removal of Ngento must stand.
The applicant further argued that Lamont J presided, as a case manager and
was not sitting as a court of appeal or review and submitted the order is a
nullity, as the court lacked jurisdiction to disregard the judgment by Moshidi J
of 2 June 2017 and 14 November 2018.
[6] The respondent in casu argued that there is no nullity of an order and
referred to the decisions in Van Dyk and T asima infra. F urthermore, it was
argued the issues before the two judges were different in that Moshidi J
issued directives and Lamont J heard and considered submissions regarding
the removal of a curator. The respondent argued that the applicant ought to
have applied for a recission of the judgment and that a declaratory order is
not suited.
[7] In Fredrich Ernest Van Dyk and Another v Teresa May Rhodes1 the full court
stated:
“ the ordinary principles of recission or appeal will always apply to court orders
wrongly granted, no matter what error led to their issuance.” The applicant
attacks the authority of the court to grant the order. He argues that the judge
was substituted to case manage a matter he was involved in, the judge did
not act in any other capacity but as a substitute and therefore had no authority
to ignore an order of his predecessor. In my view nothing precluded Lamont J
from exercising his discretion to manage the case to ensure finality and to
1 A2024-076119, delivered 24 February 2025
4
order his removal. The purpose of case management was to do all that is
necessary toward finalisation of matters. The judge a s case manager has a
discretion and must apply same according to the exigencies of the matter
before him.
[8] In the Van Dyk case supra, the appellants argued that the court a quo ought
not to have made a settlement agreement an order of court, in that no
summons was issued regarding the settlement reached, there was no lis
between the parties. To my mind the issue that the applicant raises before
me appears to fall into the same category of error as the one considered by
the Full Court, above.
[9] The Constitutional Court in Department of Transport and Others v Tasima
Pty Ltd and The City of Ekurhuleni v Rohlandt
2 confirmed that the doctrine of
nullity no longer applies to court orders. The court identified that s165(5) of
the Constitution, 1996 provides that “ an order or decision issued by a court
binds all persons to whom and all organs of state to which it applies .” In Van
Dyk supra, Wilson J stated that the court order derives validity from the
Constitution itself rather than from any specific antecedent power to make it.
The Constitution provides that it is enough that there was a court , and that
the court issued an order. Once it is established, any order so issued is valid
and binding until set aside, even if grossly wrong.” ( italics added).
[10] I am of the view that the application must fail , on the evidence before me the
requirements as set out in Tasima are met, there was a court and it issued an
order. In Travelex Limited v Maloney
3 the SCA held that a court order
2 2017(2) SA 622 CC para 180 -182 and 190 to 197
3 2016 JDR 1776 SCA
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granted without jurisdiction should be rescinded rather than ignored, but that
the “usual requirements for a rescission application,” do not apply.
[11] This court is bound by the decisions of the superior courts, and it is noted that
the applicant is not without a remedy, although he will have to fully support an
application for condonation, the order having been granted a long while ago.
[12] As is the practise, cost must follow the successful litigant.
I make the following order:
1. The application is dismissed with costs to be taxed on scale B.
_________________________
S MAHOMED J
JUDGE OF THE HIGH COURT
JOHANNESBURG
Date of hearing: 10 September 2025
Date of Judgment: 19 December 2025
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Appearance:
For the Applicant : Self-represented
Email:mzukisi@telkomsa.net,
mzukism”counsel.co.za
For the Respondent: Advocate Tonyela Instructed by SB
Negento Attorneys Incorporated
Email:
admin@sbngentoattorneys.co.za,
Advtonyela@gmail.com