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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN

Case no: D1249/2025
In the matter between:

M[...] R[...] S[...] APPLICANT

and

B[...] S[...] FIRST RESPONDENT
GOVERNMENT EMPLOYEES PENSION FUND SECOND RESPONDENT
SOUTH AFRICA RETIREMENT ANNUITY FUND THIRD RESPONDENT


Coram: MOSSOP J
Heard: 4 February 2026
Delivered: 4 February 2026


ORDER


The following order is granted:
1. The order of divorce and associated relief granted by Sibiya AJ on 1
December 2025 is rescinded and is set aside in terms of the provisions of Uniform
Rule 42(1)(a).

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2. The action shall continue as an opposed divorce trial, and its further conduct
shall be regulated by the Uniform Rules of Court and the Practice Directives of this
division.
3. Pending the further relief detailed hereunder, the first respondent is
interdicted and restrained from utilising any of the funds already paid to her by the
second and /or third respondents arising out of the order granted on 1 December
2025.
4. The first respondent is directed , within 48 hours of the date of this order , to
pay into the applicant’s attorney’s trust account any and all monies paid to her by the
second and /or third respondents arising out of the order granted on 1 December
2025. The details of the trust account in to which the monies are to be paid are as
set out in annexure ‘A’ to this judgment.
5. The applicant’s attorneys shall place the monies paid into their trust account
by the first respondent in an interest bearing account pending the finalisation of the
action and shall retain and preserve those monies until instructed by the trial court
hearing the divorce action on how they are to be distributed.
6. The application is otherwise adjourned sine die.
7. The first respondent’s attorney, Ms Aphsana Yusup h of AY Attorneys
Incorporated, Umhlanga shall pay the costs of this application , either taxed or
agreed, on an attorney and client scale, de bonis propriis.
8. The Registrar of this court is directed to furnish a copy of this judgment and
the papers in this application to the Legal Practice Council in order for it to consider
the conduct of Ms Aphsana Yusuph.


JUDGMENT


MOSSOP J:
Introduction
[1] This is an ex tempore judgment hastily prepared and is delivered in order to
explain why the order that is shortly to be granted was granted.

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[2] The applicant and the first respondent were married to each other on 9 April
2012 and were divorced by an order of Sibiya AJ on 1 December 2025. The divorce
was moved as an unopposed divorce at the end of the motion court roll on that day.

[3] The issue that arises in this application centres on the granting of the order
of divorce on an unopposed basis. The applicant ’s complaint is that the divorce
action instituted by the first respondent was opposed by him and the first
respondent’s attorneys well knew this to be the case. It was consequently not an
unopposed divorce, and it could not legitimately have been presented to Sibiya AJ
as being unopposed. It is necessary to point out that in this division the m otion court
only deals with unopposed divorces. As a consequence of the order of divorce that
issued, the second and third respondents were directed to make certain payments to
the first respondent. The applicant believes that one of the payments directed has
already been made and appears uncertain about whether the other has also been
made.

[4] Before me this morning is an urgent application that seeks to set aside the
order of divorce and to preserve and protect the monies that may already have been
paid to the first respondent by the second and /or third respondents pending the
proper resolution of the divorce action . A punitive costs order is also sought against
the first respondent.

How did this all happen?
[5] The first respondent lives in Durban and the applicant lives in Cape Town.
The first respondent is the plaintiff in the action, and the applicant is the defendant.
At all material times , the first respondent has been represented by Ms Aphsana
Yusuph (Ms Yusuph) of the firm AY Attorneys based in Umhlanga, Durban.

[6] Ms Yusuph was instructed by her client to issue summons against the
applicant in which she was to claim a decree of divorce and, presumably, allied

applicant in which she was to claim a decree of divorce and, presumably, allied
relief. I am forced to presume for , after reading this application , I immediately called
for the court file dealing with the divorce action. My registrar was advised that the
court file has inexplicably gone missing, and I am accordingly unable to consider its
contents.

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[7] There were apparently difficulties in effecting service of the summons upon
the applicant and, ultimately, an order for substituted service of the divorce summons
was ordered by this court . Service was duly effected upon the applicant on 6 August
2025. Upon receipt of the summons, t he applicant decided, initially, to represent
himself and he delivered a notice of intention to defend on 13 August 2025. The
notice of intention to defend was delivered by email and was received by the first
respondent’s attorneys without objection. The matter was, thus, clearly an opposed
action.

[8] On 8 September 2025, the applicant, still conducting his own defence to the
action, delivered his plea by email to the first respondent’s attorneys. It was received
by them. The plea was considered by the first respondent’s attorneys, who deemed it
to be excipiable in both its form and content and accordingly counsel was consulted
and was briefed to draw an exception to it. This was then done , and the notice of
exception was served upon the applicant by email on 25 September 2025. I do not
consider whether the exception was properly taken.

[9] On 20 October 2025, the applicant was served with a notice of set down.
The date inserted in the notice of set down was 1 December 2025. This seems to
have galvanised the applicant into some form of action , for it appears that he had
second thoughts about continuing to represent himself. He decided that it would be
better for him if he received legal advice on what next to do and so he instructed a
firm of attorneys based in Cape Town to assist him. That firm was Greenberg and
Associates, and he was there attended to by a Mr Brendon Kassel (Mr Kassel). It is
common cause that Mr Kassel placed himself on record on 24 October 2025 through
an email sent to the first respondent’s attorneys.

[10] Both the applicant and Mr Kassel assumed that the notice of set down
received by the applicant related to the last document served on the applicant,

received by the applicant related to the last document served on the applicant,
namely the notice of exception. The notice of set down is attached to the founding
affidavit in this application and is non-specific and simply says that the ‘above matter’
has been set down for hearing on 1 December 2025. What was being referred to

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was simply the heading to the document which simply reflects the names of both
parties.

[11] On 28 November 2025, the applicant’s attorneys served upon the
respondent’s attorneys a notice to amend in terms of Uniform Rule 28 and an
amended plea. The plea now also incorporated a claim in reconvention . The plea
and the notice of intention to amend were sent to Ms Yusuph’s email address and
was accompanied by a covering email, penned by Mr Kassel, which read:
‘Please find attached our client’s Notice in terms of Rule 28 to amend his Plea, for service
herewith.
Kindly confirm you will accept such service via e -mail, and kindly further confirm that in light
of the above, the application set down for 1 December will be withdrawn.
The defendant tenders the wasted party and party costs.
We await to hear from you.’

[12] As previously mentioned, on 1 December 2025, counsel representing the
first respondent sought and obtained a decree of divorce on the basis that the matter
was unopposed.

[13] A month and a half later, o n 16 January 2026, the first respondent’s
attorneys served a copy of the divorce order upon the applicant and his attorneys.
This was the first inkling that either had that something was amiss.

[14] Mr Kassel immediately sought an explanation from Ms Yusuph
telephonically. Ms Yusuph apparently advised Mr Kassel that the notice of set down
did not relate to the exception but rather to the divorce action. Seemingly outraged
by what had occurred, Mr Kassel directed an email to Ms Yusuph in which he made
the case that the divorce could not have been presented to the court as being
unopposed in view of the applicant’s notice of intention to oppose , his plea and his
amended plea and counter claim . No reply was seemingly forthcoming to this email,
and a further email was consequently sent by Mr Kassel to the respondent’s
attorneys on 19 January 2026. All that elicited was a request for a copy of the
applicant’s notice in terms of Uniform Rule 28.

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Further developments
[15] Upon receiving my motion roll for 4 February 2026, and after having read the
urgent application brought by the applicant, I directed a letter to Ms Yusuph on 30
January 2026 (also copied to the applicant’s attorneys) in which I said, inter alia, the
following in relation to the relief claimed by the applicant in the rescission application:
‘[3] In the event that I am persuaded to rescind the judgment and to award costs in
favour of the defendant in the action, I direct that Ms Aphsana Yusuf of A Y Attorneys be
personally in attendance at court on 4 February 2026 to explain her role in the events of 1
December 2025, and to motivate why she should not personally bear the costs of the
application before me on 4 February 2026 de bonis propriis.
[4] Ms Yusuf is entitled to be represented by counsel on 4 February 2026, but for the
avoidance of any doubt, if so represented, she must still be personally in attendance.’
I was advised by Ms Reddy, who appeared this morning for Ms Yusuph, that she
was in attendance as requested.

[16] I did not request a response to my lett er but I, nonetheless, received one in
the form of an affidavit deposed to by Ms Yusuph on 2 February 2026. She indicated
at the beginning thereof that:
‘This affidavit i s not intended to oppose the rescission, but merely to provide the above
honourable court with an explanation because the judgment was granted on the 1 December
2025 and in respect of the proposed cost order against me.’

[17] Thereafter, the affidavit narrated the history of the matter, which I need not
repeat having already set it out in some detail . Ms Yusuph admitted that an
exception had been prepared to the applicant’s plea and that on 7 October 2025 her
offices were notified by an email from the applicant that he had received the notice of
exception. She went on to state that her offices had applied for a date on the
unopposed roll on 16 October 2025 and were, as a consequence, allocated the date

unopposed roll on 16 October 2025 and were, as a consequence, allocated the date
of 1 December 2025. Counsel was thereafter instructed and the n, referring to the
proceedings on 1 December 2025, Ms Yusuph indicated that:
‘The matter was stood down twice, and Counsel did bring to the attention of the presiding
judge that the appearance to defend and plea was not filed.’

[18] Ms Yusuph also referred to an email sent to her by the counsel that she had
briefed to appear on 1 December 2025 and who moved the divorce on an

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unopposed basis. The email is not one contemporaneously sent to Ms Yusuph after
the court appearance but is of more later vintage , only being sent to Ms Yusuph on
30 January 2026. In it, counsel stated the following:
‘As you are aware, I informed the judge on the day of the notice of intention to defend and
opposing affidavit and advised her that same was not in the court file I asked if she required
a copy but she did not request same.
I advised her that it was irregular as it was not a plea.
I confirmed that service was effected on the attorneys and on Mr Sheik in terms of the court
order (via e-mail).
Copies of same were handed up.
She was satisfied that the matter could proceed. She further interrogated the evidence led
and granted the order.’

[19] Ms Yusuph indicated in her affidavit that it was of crucial importance that the
applicant and his attorney did not comply with the rules of court in that none of the
documents that they had delivered were placed in the court file. This may be so, for I
have no way of verifying this allegation by virtue of the court file having gone
missing. But there is evidence that t he applicant, while he represented himself did
email copies of the notice of intention to defend and his plea to the Registrar of this
court in the rather naïve expectation that they would be printed out and placed in the
court file by the Registrar . There is every likelihood that did not happen. But the
crucial importance that Ms Yusuph attache d to this potential failure does not
resonate with me.

[20] At the end of her affidavit, Ms Yusuph made the following submissions:
‘17. I note the correspondence of the Honourable Judge Mossop and submit that at all
material times, the Applicant acted mala fides in this matter, in respect of the service of
summons, and when he eventually defended the matter, failed to adhere to the rules of
court.
18. The applicant should also bear some responsibility for the granting of the judgment

18. The applicant should also bear some responsibility for the granting of the judgment
by default and could have prevented judgment. Neither the applicant nor his attorneys
appeared on the date or submitted any explanation for their absence at court. I submit that
the applicant clearly has had his part to play in the granting of judgment by default.’

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[21] An affidavit was then received by me from the applicant. It dealt with what
Ms Yusuph had said in her affidavit to me and took issue with what Ms Yusuph had
to say in her affidavit . He drew attention to the unresolved ex ception taken by the
first respondent and noted that there was no mention of it in counsel’s report to Ms
Yusuph. He stated that both he and his attorney were under the impression that what
had been enrolled for 1 December 2025 was the exception. He further submitted that
there was no steam left in that application , in any event , because Mr Kassel had
delivered an amended plea to the first respondent’s attorneys thereby resolving any
issues with the plea as originally formulated.

[22] Subsequent to the receipt of Ms Yusuph’s affidavit, and also on 2 February
2026, Ms Yusuph caused to be delivered to my chambers a notice of intention to
oppose the applicant’s rescission application on behalf of the first respondent .
However, the very next morning, 3 February 2026, a letter was delivered to me by
Ms Yusuph in which she withdrew the notice to oppose delivered but the day before.
She stressed in that letter that her affidavit had not been delivered in opposition to
the relief claimed by the applicant and that the first respondent would abide the
decision of this court. But she indicated that she was not prepared to allow certain
allegations in the applicant’s affidavit to me to go unanswered. She went on to again
criticise the fact that the applicant had not filed his documents in the court file ,
concluding that:
‘Hence the defence was not properly before Judge Sibiya when the order was granted.’
It was, so she said, the applicant’s attorney’s duty to ensure the documents were
properly filed in the court file.

Analysis
[23] I am astonished at the attitude adopted by Ms Yusuph. Her understanding of
what the law requires is at complete variance with what I understand its demands to
be.

what the law requires is at complete variance with what I understand its demands to
be.

[24] Ms Yusuph appears to try and explain her conduct by reference to the state
of the court file: the applicant’s documents were allegedly not in it, so it was entirely
permissible for her to set the matter down on the unopposed roll and to instruct her
counsel to move for an unopposed divorce. There is not even a passing nod to the

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requirement that a legal practitioner is required to be entirely honest and candid with
the court and not to deceive or mislead the court . As was stated in Society of
Advocates of Natal and Another v Merret:1
‘The requirement that advocates should be honest and truthful in their dealings with each
other and the Court applies equally to attorneys.’

[25] On consideration, it is apparent that Ms Yusuph knew several things:
(a) She knew, at least initially, that the applicant acted without representation.
She was thus dealing with a person not trained in the law, as she was. Legal
practitioners must anticipate th at litigants in person may err in their conduct.
Allowances must be made for imprecise or unsanctioned acts or failings by people
who do not make their living from the law . Ms Yusuph’s complaint that the applicant
did not follow the prescripts of the Uniform Rules may be valid, but his alleged failure
to do so is completely understandable and should have been expected by her.
(b) She also knew that the applicant had filed an appearance to defend . She
had a copy of that very document in her file. Without taking any steps to have that
document set aside, if there were any such steps that she could take, that document
immediately changed the action from being unopposed to being opposed. That fact
itself prevented her from seeking a date on the unopposed roll in motion court. Ms
Yusuph conducted herself as if th e appearance to defend had been set aside and
was consequently of no significance, which had not occurred, or did not exist . This
conclusion is inescapable when considered against the fact that she applied for a
date of hearing on the unopposed roll at a time when she knew the matter was
opposed. There is no other way to state it other than this was an act of deception on
the part of Ms Yusuph. She deceived the Registrar into giving a date on the
unopposed roll and then the acting judge was further deceived when the divorce was

unopposed roll and then the acting judge was further deceived when the divorce was
presented to her as an unopposed divorce.
(c) Ms Yusuph also knew that the applicant had delivered a plea and that she
had noted an exception to that plea. In other words, the matter was truly an opposed
action, and she must have appreciated that the matter could not be adjudicated on
the unopposed motion court roll.

1 Society of Advocates of Natal and Another v Merret 1997 (4) SA 374 (N) at 383F-G.

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(d) It was known to Ms Yusuph that the applicant’s attorneys had prepared and
delivered to her offices a new plea and a claim in reconvention. That was done in
response to the notice of exception that she served upon the applicant. The issue of
the exception had to be resolved and could not simply be left hanging.
(e) Finally, Ms Yusuph must also have contemplated that the notice of set down
with the date of 1 December 2025 inserted on it could cause confusion in the mind of
both the applicant and Mr Kassel. Mr Kassel could not reasonably have anticipated
that it, in fact, referred to a date on which the divorce action would be heard on an
unopposed basis in the light of the appearance to defend and the plea and then the
amended plea already delivered. That such confusion existed is demonstrated
clearly by Mr Kassel’s email of 28 November 2025, where the exception is
specifically referenced by him. Ms Yusuph must have appreciated that Mr Kassel
was labouring under an incorrect apprehension of what was to occur on 1 December
2025, yet she did nothing to disabuse him of his misunderstanding.

[26] A troubling aspect to this whole episode is Ms Yusuph ’s apparent lack of
responsibility towards the truth. 2 She has continued in the correspondence that she
has sent to me directly to incorrectly attempt to blame the applicant for what
occurred. She referred to his conduct as being ‘mala fide’ in relation to the difficulty
that she had in obtaining service of the summons on him. That difficulty, of course,
has no relevance to her conduct and cannot be employed by her in an attempt to
exonerate her or provide any mitigation for what she has done.

[27] It needs to be stated that t he applicant is in no way to blame for what
occurred on 1 December 2025 . Ms Yusuph knew the application was opposed but
enrolled it on the unopposed roll, nonetheless. That is all her doing and has nothing
to do with the applicant. If the documents filed by the applicant were not in the court

to do with the applicant. If the documents filed by the applicant were not in the court
file, then it was her duty to ensure that the court file was complete because she knew
that those documents had, indeed, been filed. The alleged lack of documentation in
the court filed delivered by the applicant was not an opportunity for Ms Yusuph to
steal a march on the applicant and to ask the court for an order that she knew she
was not entitled to ask for.

2 Ex parte Swain 1973 (2) SA 427 (N) at 433D.

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[28] The allegation was made by Ms Yusuph that the applicant could have
avoided the taking of the divorce order by appearing at court on that date. That is
perhaps correct, for had he been there he would have pointed out the matter was
opposed. But he was not there because Mr Kessel believed that the exception had
been enrolled. I am not sure that Ms Yusuph is entitled to make this argument
without proffering some explanation as to why the action was on the unopposed
motion court roll in the first place. She has not attempted to provide any such
explanation, other than to complain that the documents served upon her by the
applicant were not in the court file. That is no reason to assert that the matter was
undefended and capable of being heard on the unopposed motion court roll.

[29] In the view that I take of the matter, t he conduct of Ms Yusuph is contrary to
those standards expected from those in the legal profession. The legal profession is
regarded as a noble profession because it requires those who are permitted to
practice it to act with integrity, to fearlessly pursue justice and to exhibit high ethical
and moral standards in order to advance the administration of justice. Ms Yusuph
appears to have lost sight of the fact that he r primary duty is to the court, and her
secondary duty is to her client.

[30] I am accordingly of the view that this is an instance where Ms Yusuph should
be required to pay the costs of this application de bonis propriis on the attorney and
client scale. Her conduct must also be brought to the attention of the governing body
of the legal profession.

Order
[31] I accordingly grant the following order:
1. The order of divorce and associated relief granted by Sibiya AJ on 1
December 2025 is rescinded and is set aside in terms of the provisions of Uniform
Rule 42(1)(a).
2. The action shall continue as an opposed divorce trial, and its further conduct
shall be regulated by the Uniform Rules of Court and the Practice Directives of this

shall be regulated by the Uniform Rules of Court and the Practice Directives of this
division.

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3. Pending the further relief detailed hereunder, the first respondent is
interdicted and restrained from utilising any of the funds already paid to her by the
second and/or third respondents arising out of the order granted on 1 December
2025.
4. The first respondent is directed, within 48 hours of the date of this order, to
pay into the applicant’s attorney’s trust account any and all monies paid to her by the
second and/or third respondents arising out of the order granted on 1 December
2025. The details of the trust account in to which the monies are to be paid are as
set out in annexure ‘A’ to this judgment.
5. The applicant’s attorneys shall place the monies paid into their trust account
by the first respondent in an interest bearing account pending the finalisation of the
action and shall retain and preserve those monies until instructed by the trial court
hearing the divorce action on how they are to be distributed.
6. The application is otherwise adjourned sine die.
7. The first respondent’s attorney, Ms Aphsana Yusuph of AY Attorneys
Incorporated, Umhlanga shall pay the costs of this application, either taxed or
agreed, on an attorney and client scale, de bonis propriis.
8. The Registrar of this court is directed to furnish a copy of this judgment and
the papers in this application to the Legal Practice Council in order for it to consider
the conduct of Ms Aphsana Yusuph.




_____________________________

MOSSOP J

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APPEARANCES


Counsel for the applicant: Ms N de Gay

Instructed by: Greenberg and Associates
Cape Town

Locally represented by:

Strauss Daly Attorneys
9th Floor, Strauss Daly Place
41 Richefond Circle
Ridgeside Office Park
Umhlanga

Counsel forms Yusuph and the respondent: Ms L A Reddy

Instructed by: AY Attorneys Incorporated
Suite 407 Millenium Towers
8 Solstice Road
Umhlanga

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ANNEXURE ‘A’

TRUST ACCOUNT DETAILS OF GREENBERG ATTORNEYS INC



Bank: Standard Bank

Account holder: Greenberg Attorneys Inc

Registration number: 2022/409665/21

Account type: Current

Account number: 0[...]

Branch: Thibault Square

Branch code: 0[...]

SWIFT code: SBZAZAJJ

Date account opened: 23 March 1995