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
(EASTERN CAPE DIVISION-MTHATHA)
CASE NO: 4072/2024
In the matter between:
REBECCA YOLISWA XABA APPLICANT
And
SHERIFF OF THE HIGH COURT MTHATHA 1ST RESPONDENT
RUTH MARILLER 2ND RESPONDENT
BONGIWE NELANI 3RD RESPONDENT
NOMANDLA MYANDLU 4TH RESPONDENT
JAQUUELINE ANN THURSTON 5TH RESPONDENT
KIM CHANTELLE THURSTON 6TH RESPONDENT
And in the matter between:
NOMANDLA MYANDLU 1ST APPLICANT
RUTH MARILLER 2ND APPLICANT
BONGIWE NELANI 3RD APPLICANT
JACQUELINE ANN THURSTOON 4TH APPLICANT
And
LITHA HYBERT LUDIDI 1ST RESPONDENT
THEMBEKA ELLEN MGUDLWA 2ND RESPONDENT
TABILE MZWAKALI 3 RD RESPONDENT
VIVA YOLANDE MGUDLWA 4TH RESPONDENT
REBECCA YOLISWA XABA 5TH ESPONDENT
VELA SCHOOL 6TH RESPONDENT
JUDGMENT
NKELE AJ:
INTRODUCTION.
[1] The applicant launched urgent application proceedings and
obtained a rule nisi as well as an interim order against the
respondents. In turn, the respondents instituted a counter
application against the applicant.
[2] For the reason that there is a main application and a counter one,
in this judgment, for the sake of clarity and to avoid confusion, the
parties will be referred to as in the main application. That means
Ms. Xaba will be referred to as the applicant, while the respondents
in the main application will be described as such, and the
respondents in the counter application will be referenced to as the
trustees.
[3] On 13 September 2024, the applicant approached this court on an
urgent basis seeking an order setting aside a writ of attachment
issued under Case No. 2378/2024 dated 27 August 2024 and the
attachment and removal of her movable goods. The applicant also
sought consequential relief to the effect that the attached goods be
returned to her. The court issued a rule nisi calling upon the
respondents to show cause why the writ of attachment should not
be set aside and directed the sheriff to release the applicant's
goods under attachment. The main application is being opposed by
the 2nd to the 5th respondents.
[4] During the proceedings in the main application, the 2 nd to the 5 th
respondents instituted a counter application against the trustees of
the Vela School Trust as well as Vela School. In the counter
application the respondents seek an order effectively declaring the
trustees to be personally liable for the debt set out in paragraph 1
of the Majiki J order and that they be declared to be personally
liable for the costs as set out in paragraph 2 of that order and that
they be ordered to pay costs of the counterapplication, jointly and
severally, the one paying the other to be absolved. The counter
application is being opposed only by the 3 rd and 5th trustees, that is,
Mr. Mzwakali and Ms. Xaba, while the 6 th respondent has filed a
Notice to Abide.
[5] It is apposite to mention that during argument parties were directed
to file supplementary heads relating to the question whether the
respondents' contention that the Majiki J order is clear and explicit,
in that the applicant and other trustees are liable to the
respondents in their personal capacities, is inconsistent with the
order sought in counter application that seeks a declaratory order
against the trustees regarding their liability for the debt and costs.
Apparently those supplementary heads of argument were filed as
far back as the 7 th and 8th of October 2025 but were never brought
to my attention either by the Registrar or the parties. They were
only brought to me on 12 December 2025 after my secretary made
telephonic enquiries with the offices of the parties’ legal
practitioners.
FACTUAL BACKGROUND
[6] On 31 May 2024, the trustees of the Vela School Trust approached
the Makhanda High Court, on an urgent basis, under case number
2241/2024 and obtained an order directing the Standard Bank of
Southern Africa to take instructions only from the trustees in
relation to who the signatories are or should be for the school's
banking account no. 0[...] in the name of Vela P/Primary, held by it.
[7] It is a common cau se that on 6 June 2024, the 2 nd to 5 th
respondents approached this court on an urgent basis, seeking an
order for payment of their salaries as the employees of the Vela
School. It is also common cause that the non -payment of their
salaries was in breach of their contracts of employment. The urgent
application was instituted against the five trustees of the Vela
School Trust, who were sued in their capacity as persons in control
of the school's bank account, and the Vela School. At the time they
sued for pay ment of their salaries, the respondents had been
suspended as employees of the Vela School. The court, having
found the respondents were still in the employment of the Vela
School at the time of their suspension, ordered the trustees as well
as the Vela Sc hool to pay salaries to the respondents within 48
hours from the date of service of the order.
[8] The respondents' salaries were not paid, in compliance with the
order issued by Majiki J, and a writ of attachment was issued
against the applicant, and her movable goods were attached and
removed as a result. It is the attachment and removal of the
applicant's movable goods that triggered the institution of the main
application on an urgent basis, which in turn resulted in the order
dated 13 September 2024, directing the sheriff to return them. In
that application the applicant is challenging the basis on which the
writ of attachment was issued against her, in her personal capacity,
when, in the Majiki J judgment, she was sued, together with other
trustees, in her official capacity as the trustee of the Vela School
Trust. On the other hand, the respondents' main reason for
opposing the main application is that they assumed control of the
trust's bank account from which the respondents' salaries are paid.
In ad dition, thereto, the respondents argue that on a contextual
reading of paragraph 1 of the Majiki J order, the trustees were held
liable to pay the debt because they were in possession of the
school banking account and not in their official capacities as
trustees or representatives of the Vela School Trust. In the counter
application, as already stated, the respondents seek a declarator to
the effect that on a contextual reading of paragraph 1 of the Majiki
J order the trustees were ordered to pay the debt b y virtue of their
de facto possession of the school banking account and not in their
capacities as trustees of the Vela School Trust, that the trustees
have acted outside the scope of the trust instrument/ deed of trust,
that they failed to act with necess ary care, diligence and skill and
that they have acted negligently.
[9] As already adumbrated in the preceding paragraphs, the counter
application is being opposed by the applicant and the 3 rd trustee,
while the Vela School has filed a notice to abide by t he decision of
the court. In the main the bases for opposing the counter
application are that the Majiki J order or judgment does not create
personal liability for the trustees, the counter application seeks to
unilaterally join other trustees in their personal capacities, the rights
of the respondents have already been determined in the Majiki J
order or judgment, which relate to payment of their salaries, and
the court is not a Legal Advisor and that the counter application
seeks, impermissibly so, to vary the Majiki J judgment or order in a
manner not contemplated by the Uniform Rules of Court.
COUNTER APPLICATION
[10] I intend to first deal with the counter application before I consider
the issues raised in the main application. In this regard, I will f irst
give an exposition of the parties' contentions relating to it, then
narrate the applicable legal principles, and then end the discussion
with an analysis and an application of the law to the facts as well as
a conclusion.
THE RESPONDENTS' CONTENTIONS
[11] One of the main contentions advanced by the respondents is that
the trustees, including the applicant, were not acting in an official
capacity in the proceedings against Majiki J, and they could not
have done so because they acted outside the scope of a valid and
applicable trust document, the 2011 trust deed. In support of that
argument, they contend that clause 22 of the 2011 trust sets out
the powers the trustees have, and those do not include taking
control of the school's banking account. By takin g control of the
banking account, they automatically assumed responsibility for the
school's financial obligations, and that the trust estate cannot be
held liable outside the provisions of the trust, so the argument
goes. They should therefore be held liable by virtue of their de facto
possession of the school's bank account, and they should be held
liable for both the debt in paragraph 1 of the Majiki J judgment as
well as the costs order in paragraph 2 thereof.
[12] The Respondents further assert that the trustees rely on an invalid
and inapplicable trust deed to avoid liability. In this regard they
state that the only applicable trust deed is the 2011 one, and not
the 2024 one, as the latter one is invalid and inapplicable and that
was confirmed i n paragraph 3 of the Master's report which is
attached to the papers as annexure " NM3". Also, in the Majiki J
judgment the respondents successfully argued that the 2011 trust
is the only valid and applicable one. The validity of the 2011 trust
deed was als o confirmed in the Mjali J judgment delivered on 6
June 2024. In this regard the respondents contend that Mjali J,
aware of the filing of the 2024 trust deed, concluded that the 2011
is the only valid one. To the extent that the trustees rely on an
invalid trust instrument, the trustees acted outside the scope of
employment and therefore should be held personally liable, so the
respondents contend.
[13] Thirdly, the respondents contend that the trustees failed to act with
the necessary care, diligence and s kill when they took control of
the school's banking account. They further contend that even if it
were to be found that they acted within the scope of their duties,
they should still be found liable for the debt as well as costs that
appear in paragraphs 1 and 2 of the Majiki J order for the reason
that their conduct clearly demonstrate a failure to act with the
necessary care, skill and diligence when they took over control of
the banking account. This is so because when they took control of
the banking ac count the school failed to meet its financial
obligations and for that reason the trustees should be held
personally liable to pay the respondents' salaries. This should be
the case, the respondents further contend, even if they were to be
found to have acted in an official capacity.
[14] Fourthly, the respondents contend that the trustees should be
found to have acted negligently in that when they took over the
bank account, the school failed to meet its financial obligations and
as result it attracted lit igation and debt and that constituted gross
negligence for which they must be held personally liable. This so is
because, the respondents contend, the trustees must not be
allowed to avoid the drastic consequences of their negligent
actions, which they voluntarily incurred through their negligence.
[15] In the end the respondents urge this court to grant a declarator to
the effect that the debt incurred as result of the school's failure to
pay their salaries is not that of the trust but of the trustees in their
personal capacities. Secondly, that they are held personally liable
for the reason of their de facto possession of the school's banking
account and not because the trust had attracted the debt. In this
regard the respondents contend that the necessar y jurisdictional
requirements have been met for a declarator to be granted and for
that reason the court should exercise its discretion in favour of
granting the order sought in the counterapplication.
THE TRUSTEES' CONTENTION
[16] In response to the resp ondents' case, as set out in the preceding
paragraphs, the 3 rd trustee contends that as from 6 June 2024 the
respondents were dismissed as employees of the Vela School by a
resolution of the Board of Trustees and that followed a sustained
and concerted unlawful conduct on their part, which conduct
included interference with the Trust operations and diversion of the
school's income. In this regard reference is made to a dismissal
letter attached as annexure " TM7" to the papers. Although it is
acknowledged that the dismissal aforesaid has been challenged by
the respondents and is the subject of litigation under Case Number
2853/2024, as it appears in " TM8", it is contended that until that
suspension is overturned it remains valid. For that reason, the
respondents cannot be heard as if they are still the employees of
the school. They therefore have no legal or beneficial interest in the
administration of the trust.
[17] He further contends that there is no legal basis that the trustees
should be hel d personally liable based on a contextual reading of
the Majiki J order. In this regard it is contended that the order and
the whole judgment relied upon does not insinuate that nor can that
be inferred therefrom even on a contextual reading thereof. For t hat
reason, the 3 rd trustee asserts that such a contextual reading
contended for by the respondents were to be followed, it would be
contrary to the settled law regulating the liability of trustees in South
African law.
[18] A further contention advanced by the 3rd Trustee is to the effect that
the trustees, in all their dealings, acted in good faith and in
execution of their fiduciary obligations and that the failure to pay
salaries was not attributable to their actions but to the respondents'
unauthorised diversion of school funds, the locking out of trustees
from the school premises by the respondents as well as breakdown
in the access to the Bank account and staff information. All that the
respondents do is to blame and point fingers at the trustees and, in
the process, ignore the devastating effect of their actions which
amounted to institutional sabotage. For that reason, he contends
that the counter application should be dismissed with costs.
[19] In response to the counter application, the applicant r aises various
points in limine. The first being that the respondents have sought to
join the trustees of the Vela School Trust, in their personal capacity,
in proceedings in which they were never cited, in contravention of
the clear provisions of the Uniform Rules of Court. In this regard the
applicant contends that the respondents should have launched an
application to intervene in the matter and show cause as to why
they should not take part in these proceedings. Instead, the
respondents have unilaterally decided to remove parties who were
cited in the main application, which is an improper procedure in
terms of the Rules.
[20] Secondly, the applicant raises the point that the order sought,
which is to the effect that one judge determine the "contextual
meaning" of an order granted by another is procedurally flawed.
The proper and procedurally correct way to do so would have been
by way of a variation of the order in question, as provided for in the
Rules of Court.
[21] Thirdly, the relief sought by the respondents in the counter
application is incompetent and materially defective in that it is not a
variation order nor is it an appeal against the Majiki J order. The
effect of the order sought would be to set aside the Majiki J order or
change it material ly. In any event, the contention goes, the relief
sought is that of declarator which is to determine the rights of the
parties and not to interpret the court order. In this regard the
applicant contends that the rights of the parties have already be
determined in the Majiki J order and judgment and that is
demonstrably clear from the fact that the court ordered payment of
the respondents' salaries while they are on suspension. The effect
of this argument is that the order sought would be merely advisory
in nature and the court cannot act as a legal advisor to clarify points
of law or academic issues. As the respondents' rights to their
salaries have already been determined, there is no lis between the
parties and the counter application should therefore be d ismissed
with costs.
[22] On the merits, the applicant joins issue and concurs with the 3 rd
trustee's contention that paragraph 1 of the Majiki j order makes it
very clear that the " first respondent is Vela School and five trustees
of the Vela School Trust , sued in that capacity' . The effect of that,
the applicant contends, is that the trustees, including herself, were
cited and sued in their official capacities as trustees and there is no
ambiguity about that. In any event, nowhere in the Majiki J
judgment is there a finding that the trustees acted negligently or
grossly so as to warrant an order attracting personal liability on their
part. Applicant's contention is that with a clear court order in the
form of the Majiki J one, there is absolutely no room o r scope for
any other reasonable interpretation thereof. If the respondents
strongly feel that there was a material mistake in the order, they
should have approached the court for an appeal or variation or any
other suitable remedy. In conclusion the appl icant seeks an order
dismissing the counter application, with costs.
THE REGULATORY LEGAL FRAMEWORK
[23] Counter applications, generally, are subject to the principles
applicable to applications1. In Graham v Law Society of Northern
Provinces2 Murphy J held that rule 6(7) applies to all applications
and rejected arguments, that it applies only to applications initiated
under rule 6(1) 3. There is no impediment in law or in the rules to a
litigant that seeks to obtain a remedy in a counter application that is
1Erasmus Superior Court Practice Vol 2 DI Rule 6-47, Issue 26, 2025, LAWSA Vol 6 para 219 page 148.
2 2016 (1) SA 279 (GP).
3 2016 (1) SA 279 (GP) at 189F-290D.
more expansive or even unrelated to the main application 4. A
counterapplication is usually made where the respondent seeks
relief which is beyond the mere dismissal of the main application5.
[24] By definition, a declaratory is a flexible remedy which can assist in
clarifying legal and constitutional obligations in a manner which
promotes the protection and enforcement of our Constitution and
its values6. It is trite that two requirements must be met before a
court can exercise its discretion in favour of granting an order of a
declaratory nature. Firstly, there must be interested parties upon
whom the declaratory order would be binding and, secondly, that
the case is a proper one for the court to exercise its discretion to
grant a declaratory rel ief7. In a declarator the applicant wants the
court to declare what the law is on a specific issue and,
consequently, what the rights of the parties are8. Such an order will
have the effect of a res judicata and be binding on the persons
affected by it9. However, such an order is not an appropriate relief if
there are other specific statutory or other remedies available to a
4 Erasmus ibid page DI Rule 647, LAWSA page 148 para 219
5 Pete & Hume Civil Procedure a Practical Guide Oxford 4 th Edition page 199, LAWSA Vol 6 para 219 page
148
6 Rail Commuters Action Group and Others v Transnet t/a Metrorail and Others (CCT 56/03) [2004] ZACC
20; 2005 (2) SA 359 (CC); 2005 BCLR 301 (CC) (26 November 2004) para 107
7 Langa and Others v Hlophe (697/08) [2009] ZASCA 36; [2009] 3 All SA 417 (SCA); 20 09 (8) BCLR 823
(SCA) (31 March 2009).
8 Pete & Hume ibid page 545
9 SZ Tooling Services CC v SA Eagle Insurance co Ltd [1993] 1 All SA 217 (A); 1993 (1) SA 274; Royal
Sechaba Holdings (Pty) Ltd v Coote [2014] 3 All SA 431 (SCA). LAWSA vol 6 para 38 page 3 8.
litigant10. A court will not readily grant a declaratory order where an
alternative remedy is available such as an appeal11.
[25] It is trite that in certain circumstances declaratory orders may give
rise to mootness and generally courts do not grant orders that will
have no practical effect 12 . In J T Publishing (Pty) Ltd and
Another v Minister of Safety and Security and Others the apex
court had this to say about declaratory orders:
. a declaratory order is a discretionary remedy, in the sense that
the claim lodged by an interested party for such an order does not
in itself oblige the Court handling the matter to respond to the
question it poses, even when that looks like being capable of a
ready answer. A corollary is the judicial policy governing the
discretion thus vested in the Courts, a well -established and
uniformly observed policy which directs them not to exercise it in
favour of deciding points that are merely abstract, academic or
hypothetical ones”.13
[26] The general principle of our law is that once a judgment is given it
is final and binding and not subject to amendment and
10Director of Public Prosecutions v Mohamed 2003 (5) BCLR 476 (CC); 2003 (4) SA 1 (CC) para 56, LAWSA
vol 6 para 38 page 36
11 Rutherford v Ferguson (2000] 1 All SA 113 (0); 2000 (2) SA 275 (0), Exparte Pretorious 1963 (1) SA 57 (0)
12 Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation and
Exploitation (SOC) Limited (CCT 195/19) ZACC 5; 2020 (6) BCLR 748 (CC); 2020 (4 SA 409 (CC) (2
13 CCT49/95 [1996] ZACC 23; 1996 (12) BCLR 1599; 1997 (3) SA 514 (CC) (21 November 19) para 15
,,,
supplementation by the court that delivered it and in that regard the
court becomes functus officio 14. Once the court has delivered its
judgment or order it may not alter or vary it in any manner. A party
dissatisfied with the result should either take the matter on appeal
or review 15. That ge neral rule is subject to exceptions in that the
court has the power to change matters accessory to the judgment
such as costs and interest; and orders in rulings can also be varied,
as they are merely preparatory in nature and do not dispose of an
issue16.
[27] It is a well-established principle of our law that a judgment or order
may be varied either in terms of the common law or in terms of the
provisions of Rule 42 of the Uniform Rules of Court 17. A court, at
common law, has the inherent power to regulat e its own
proceedings in the interests of justice and that necessarily includes
the power to clarify, supplement or correct its own judgments18.
[28] Rule 42(1) makes provision for the variation and rescission of a
judgment and supplements the common law by providing for
14 LAWSA V ol 6 para 595 Pete & Hume page 363
15 Pete & Hulme page 363
16 Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A) at 263, Brown v Yebba CC t/a Remax Tricolor 2009
(1) SA 519 (D) para 26.
17 Pete & Hume ibid page 363, LAWSA V ol 6 para 595 page 338.
18 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (CC); 2006 (30 BCLR 423
(CC) (29 November 2005) at paras 31-36, Pete & Hume page 363. 19 Pete & Hume page 364, LAWSA V ol 6
para 596 page 340
instances where the court may, mero motu, or upon application by
an interested party, set aside or vary one of its judgments or
orders19. The rule deals specifically with default judgments. On the
other hand, Rule 42(1)(b) allows a court t o correct obvious
mistakes it has made in its judgments or orders and effectively
carries an exception under the functus officio rule. Effectively the
rule codifies the common law position regulating the variation of an
order or judgment20.
ISSUE TO BE DECIDED/ FOR DETERMINATION
[29] Having regard to the factual matrix as well as the governing legal
principles, narrated supra, I am of the firm view that the narrow
issue for determination relating to the counter application is
whether the respondents have made out a proper case for the
declaratory order sought, to the effect that the Majiki J order should
be contextually interpreted to mean that payment of the debt and
costs should be imposed upon the trustees in their personal
capacities.
19 Uniform Rules of Court; rule 42(1)
20 Pete & Hume page 365
DISCUSSION AND ANALYSIS
[30] As already adumbrated above, the respondents seek a relief of a
declaratory nature to the effect that the trustees be held personally
liable for the debt as well as the costs that appear in paragraphs 1
and 2 of the Majiki J or der. In this regard the respondents argue
strongly that the declaration is necessary because the issue was
not decided in the Majiki J judgment. Therefore, the respondents
further argue, the issue of the capacity in which the trustees were
held liable in t he Majiki J judgment will arise when the costs order
is executed and therefore it is necessary to have the issue dealt
with at this stage to prevent further litigation. The respondents in
their heads of arguments dispute in the strongest terms that the
order they seek is a variation of the Majiki J one.
[31] In conclusion, the respondents argue the order they seek is
justified. The Majiki J order, read in context, held the trustees liable
due to their de facto possession of the school banking account. On
the other hand, the trustees in opposition, vehemently argue that
there is nothing unclear or ambiguous about the capacity in which
they were found liable in the Majiki J judgment and order.
[32] As a starting point, the trustees argue strongly that they w ere cited
in their official capacities as the trustees and that is abundantly
clear in paragraph 1 of the Majiki J judgment where it is stated "The
first respondent is Vela School (the school) and five trustees of
Vela School (the trustees), sued in that capacity and as persons in
control of the school's banking account ..." That on its own, the
argument goes, makes it very clear that at no stage in the
proceedings before Majiki J were the trustees sued in their
personal capacities and the resultant order w ould not have been
otherwise. The trustees, therefore, argue that the contextual
reading of the order is not justified by the facts that culminated in
the Majiki J judgment and order, which make it clear that they were
sued in their official capacities.
[33] The trustees further argue, in opposition to the order sought in the
counter application, that the order sought seeks to vary the order
granted by Majiki J in an irregular manner that is not contemplated
in the provisions of Rule 42 of the Uniform Rule s of Court so as to
hold them personally liable for the debt and costs when there was
no finding of negligence against them, as should have been the
case if the order sought were to be justified. In this regard the
trustees argue that to order that they be held personally liable when
there has been no finding of negligence against them, would be
against the established legal principles regulating the liability of the
trustees. They further argue that the declaratory order sought by
the respondents is improp er in the factual circumstances of this
case. This is so because in the Majiki J judgment the respondents'
right to payment of their salaries has already been declared and it
is not clear what rights they now seek to declare in the counter
application.
[34] It is trite that a court may clarify its judgment or order if, on a proper
interpretation, the meaning thereof remains obscure, ambiguous or
otherwise uncertain, so as to give effect to its true intention,
provided it does not thereby alter 'the sense an d substance of the’
judgment or order 21 . In HLB International (South Africa) (Pty)
Ltd v MWRK Accountants and Consultants (Pty) Ltd 22 the
Supreme Court of Appeal gave a lucid explanation of the
application of the provisions of Rule 42(1)(b) when it stated:
"[19] Rule 42(1)(b) of the Uniform Rules of Court provides
that the high court may, in addition to any other power it may
have on its own initiative or upon the application of any other
21 Erasmus Superior Court Practice V ol 2-page DI Rule 42-25 Issue 27, 2025
22 HLB International (South Africa) (Pty) Ltd v MWRK Accountants and Consultants (Pty) Ltd (113/2021)
[2022] ZASCA 52; 2022 (5) SA 373 (SCA) (12 April 2022)
party affected, rescind or vary an order or judgment in which
there is an ambiguity, error or omission. In Colyn v Tiger
Food Industries Ltd t/a Meadow Feed Mills (Cape) 23 the
interpretation of rule 42(1)(b) was placed in its proper context.
It was held that the context was the common law before the
introduction of the Un iform Rules and that the 'guiding
principle of the common law is certainty of judgments', with
the effect that generally speaking, when a judgment has been
given, it is final and unalterable: the judge becomes functus
officio and may not ordinarily vary or rescind his own
judgment. There are, however, exceptions that relate to
'correction, alteration, and supplementation of a judgment or
order'. it was, the court held, 'against this common law
background, which imparts finality to judgments in the interest
of certainty, that Rule 42 was introduced', catering for the
rectification of the same types of mistakes that the common
law had recognised".
[35] In Thompson v Soth African Broadcasting Corporation, the
following passage in S v Well 1990 (1) SA 816 (A) 8 20C-F, was
quoted with approval. "The more enlightened approach,
23 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (127/2002) [2003] ZASCA 36; [2003] 2 All SA 113
(SCA); 2003 (6) SA 1 (SCA) (31 March 2003)
however, permits a judicial officer to change, amend, or
supplement his pronounced judgment, provided that the sense
or substance of his judgment is not affected thereby (tenure
substantiate perseverance) According to Voet a Judge may
also, on the same day, after the pronouncement of his
judgment add (suppler) to it all remaining matters which relate
to the consequences of what he has already decided but
which are still missing from his judgment. He may also explain
(explicate) what has been obscurely stated in his judgment
and thus correct (emanate) the wording of the record provided
that the tenor of the judgment is preserved "24. The question for
consideration for purposes of the counter application is
whether the Majiki J order should be interpreted so widely so as to
contextually read it to mean that the trustees are held personally
liable for the debt and costs. That exercise necessarily entails the
interpretation of the Majiki J judgment which contains the order in
question.
24 Thompson v Soth African Broadcasting Corporation (622/98) [2001] ZASCA 7; 2001 (3) SA 746 (SCA)
(8March 2001) para [5]
[36] The basic principles applicable to the construction of judgments
have been enunciated in a long line of cases and have been
summarised as follows:
"(a) The court's intention is to be ascertained primarily from
the language of the judgment or ord er as construed according
to well-known rules.
(b) As in the case of a document, the judgment or order and
the court's reasons for giving it must be read as a whole in
order to ascertain its intention.
(c) If, on such a reading, the meaning of the judgment or
order is clear and unambiguous, no extrinsic fact or evidence
is admissible to contradict, vary, qualify or supplement it. In
such a case not even the court that gave the judgment or
order can be asked to state what its subjective intention was in
giving it"25.
[37] What is quite apparent from the judgment is that, right from the
heading, the trustees are cited in their Nominee Officio capacity
and that is confirmed by their description in paragraph 1 of the
judgement. It is therefore unfathomable on what factual basis could
25 Erasmus Superior Practice page DI Rule 42-25 to 26 Service Issue 27, 2025
it be said that they should be held personally liable for the debt and
costs in paragraphs 1 and 2 in the Majiki Judgement in
circumstances where they were cited in their representative
capacities when the proceedings were instituted. I am therefore not
persuaded that the Majiki J Judgement can be contextually read to
mean that the trustees can be held personally liable for the debt
and costs provided thereon. In the light thereof, I am in inclined to
agree with the contention advanced b y the trustees that, as they
were sued in their representative capacities as the trustees, they
were not found personally liable for the debt and costs in the Majiki
J order. The contextual reading of the judgment and order
proposed by the respondents, in my view, will lead to untenable
results not intended by the Majiki J judgment and order. I therefore
come to that conclusion relying on the reasoning of the Supreme
Court of Appeal in Hulisani Viccel Sithangu v Capricorn District
Municipality where guidance as to the interpretation of a judgment
was given as follows:
"[26] The full court's construction of the order of this Court granting
leave to appeal, in therefore flawed. It not only failed to read the
language of the court order contextually, but it failed to have regard
to its purpose. The full court accordingly misdirected itself in
approaching the appeal in the manner it did ”26. Indeed, it is quite
correct that no finding of negligence was made in the judgment
against the trustees. A reading of that j udgment, in my view,
reveals that the court ordered payment of the respondents' salaries
on the basis that their suspensions were with full pay and that the
failure to pay them was in violation of both the terms of suspension
and their contracts of employm ent27. Although mention is made of
the fact that the trustees had been in control of the school's
banking account in terms of the court order dated 30 May 2024, no
finding of negligence or failure of any sort was made against the
trustees on that particula r aspect. That therefore fortifies me in my
finding that any order holding the trustees personally liable for the
debt and costs would be improper and unjustified in the present
factual matrix.
[38] The order sought would be more improper and unsuitable be cause
the respondents, as is common cause, are the employees of the
Vela School and their contracts of employment make this very
clear. In other words, the debt that the respondents in the Majiki J
judgment were ordered to pay arose out of a contract of
26 Hulisani Viccel Sithangu v Capricorn District Municipality ( 593/2022) [2023] ZASCA 151 (14
November2023) para [26]
27 paras [4] and [5] of the Majiki J judgment.
employment and it is totally inconceivable in our law that a party
who is not part of a contract can be held liable to fulfil contractual
obligations, as that would be the effect of the order sought by the
respondents. The doctrine of privity of contract is well known in our
law and its basic idea is that persons who conclude a contract must
be bound by it and that necessarily entails that it would be
ridiculous if total strangers could sue or be sued on contracts with
which they were in no way connected 28. That being the case there
would be no justifiable reason, either in law or logic, to hold the
trustees liable for the debt and costs in the Majiki J judgment. In my
view the counter application has no merits, and it should be
dismissed.
THE MAIN APPLICATION
THE APPLICANT'S CASE
[39] As already stated in the introductory, the applicant brought an
urgent application and obtained an interim order directing the
respondents to return the attached and removed goods. In that
very same order, a rule nisi was issued calling upon the
28 GB Bradfield Christie's The Law of Contract LexisNexis 8th Ed page 317, Cosira Developments (Pty) Ltd v
Sam Lubbe Investments CC t/a Lubbe Construction [2011] JOL 27763; 2011 (6) SA 331 (GSJ) [Ill, [141
respondents to show cause why the writ of attachment issued
under Case Number 2378/2024 dated 27 August 2024 should not
be set aside. The gravamen of the applicant's case is that the
Majiki J order and judgment, which directed the respondents in
those proceedings to pay the respondents in the present
Application, their salaries within 48 hours, did not direct them to do
so in their personal capacities, but in their official one as trustees.
Consequently, failure to pay the salaries as stipulated in that order
and jud gment did not result in the trustees being jointly and
severally liable to pay them. Nor did it create a contractual nexus
with the school. In any event the respondents had concluded
employment contracts with the school, and not the trust or the
trustees. Those employment contracts were still valid as at the time
the Majiki J order and judgment were issued. The order and
judgment could not be misconstrued to have done so, especially
because even in the heading of that Judgement the trustees were
cited in th eir nominee officio capacity and in paragraph one, they
were described as such.
[40] The applicant further contends that even in the aspect of costs,
where the school and the trust are held to be jointly and severally
liable, the trustees cannot be bound p ersonally liable for the debts
of the trust unless they have made an undertaking to pay them,
either as sureties or they have been found to have acted
negligently. Explaining further this contention, the applicant asserts
that in terms of clause 13 of the deed of trust dated 26 April 2024,
the trustees are not liable for the debt of the trust and that clearly
endorses the well -known position in our law, that of the trustees'
limited liability for the debts and obligations of the trust.
[41] For the above stated reasons, the applicant strongly asserts, there
was absolutely no reason to issue a writ, attach and remove her
movable goods for the debts of the trust, when it is abundantly
clear that in those proceedings she acted in her official capacity a s
the trustee. Therefore, the writ was issued unlawfully, as there was
no logical basis why it was so issued, and it should be set aside. In
conclusion, the applicant vehemently argues that it has made out a
strong case for the confirmation of the rule nis i obtained on 13
September 2024, relating to the setting aside of the writ issued
under Case Number 2378/2024 dated 27 August 2024, and the
interim order relating to the release of the goods under attachment.
The applicant also prays for a costs order against the respondents.
RESPONDENT’S CASE
[42] In response to the main application, the respondents vehemently
dispute that the applicant acted in an official capacity in the
proceedings before Majiki J. They strongly contend tha, that could
not be the case because they acted outside the scope of a valid
trust deed, which is the 2011, and that was confirmed by the
judgment of Mjali J dated 6 June 2024. In any event the validity of
the trust deed upon which the applicant relies is the subject of
litigation in the Makhanda High Court under High Court Case No.
2241/2024. In short, the respondents assert that the applicant
relies in an invalid and inapplicable deed of trust. It is for that
reason that she should be held personally liable for the debt and
costs in the Majiki J order and judgment.
[43] The respondents further contend that the powers that the trustees
have are clearly stipulated in clause 22 of the 2011 deed of trust
and they do not include taking control of the school's banking
account. When she took control of the banking account, the
respondents assert, it cannot be said that the applicant was
exercising the powers accorded to her in terms of clause 22 of the
2011 trust instrument. Therefore, the respondents contend, there is
nothing wrong with the writ and her movable property was correctly
attached and removed by the sheriff. The writ conformed with
paragraph 1 of the Majiki J judgment, as it reflects the exact
amount of the debt owing in terms of that judgment, and which is
the debt for which the applicant is personally liable, which debt is
definite, and its causa has not fallen away. In this regard the
respondents contend in the strongest terms that the applicant has
dismally failed to set out the lawful basis for the setting aside of the
writ. I n conclusion, it is the respondents' contention that the
conduct of the applicant was negligent and for that reason she
should not be exempted from liability. In the circumstances the
respondents pray for the discharge of the rule nisi and the interim
order, with costs.
THE GOVERNING LEGAL PRINCIPLES
[43] It is a well -established principle of our law that execution is a
process by which practical effect is given to the terms of the
order29. Such a process of execution is crucial and inextricably link
with the effectiveness of a judgment granted in favour of a party in
29 LAWSA para 622 page 622, De Crespigny v De Crespigny 1959 (1) SA 149 (N) at 149, Butchard v Butchard
1997 (4) SA 108 (W).
a legal suit 30. Execution usually follows in a judgment sounding in
money in which a judgment debtor to pay a specific sum of money,
which, under normal circumstances, arise out of contract, de lict,
enrichment or costs
[44] It is trite that a writ of execution may be set aside if it has not been
issued in conformity with the judgment. In Rand West Local
Municipality v Quill Associates (Pty) Ltd) the Supreme Court of
Appeal held that it is clear that a writ will be set aside where it does
not accord with the order on which it was purportedly issued, or the
facts show that the debt has been satisfied, or the order on which it
is premised is itself set aside or where the wrong person is named
therein as party 31. In this regard the court in A.J.N v W.L.N held
that a writ cannot be sued out against the property of a person
against whom there is no judgment or the causa had fallen away or
where it is proved that the attachment, in material respects, fa ulty
on formal ground. This may be done by way of an application to the
very the court that issued the writ 32. This may mean that in the end
the attachment and the writ will be set aside.
30 Pete & Hume page 440, LAWSA para 625 page 354.
31 Rand West Local Municipality v Quill Associates (Pty) Ltd and Another (497/20) [2021] ZASCA 150 (26
October 2021)
32 A.J.N v W.L.N [2023] ZAGPPHC 341; 17229/2006 (19 May 2023)
ISSUE FOR DETERMINATION IN THE MAIN APPLICATION
[45] In the main ap plication, in my view, the crisp and limited issue for
consideration is whether the applicant has made out a case for the
confirmation of the interim order for the returned goods by the
sheriff and the rule nisi relating to setting aside of a writ.
DISCUSSION AND ANALYSIS
[46] The applicant, as already stated in the introduction, obtained an
interim order directing the sheriff to return the goods under
attachment as well as rule nisi calling upon the respondents to
show cause why the writ of attachment sho uld not be set aside as
irregular. Her main reason for an application of that nature is that
the judgment and order, in terms of which the writ was sued out,
did not find her personally liable to pay the respondents' salaries.
The Majiki Judgment, instead, was directed against the trustees, in
their nominee officio capacity, and not against the applicant
personally. She further argues that failure to pay the respondents'
salaries did not result in a situation where the trustees were jointly
and severally li able. The applicant further argues that they acted
within the scope of a valid deed of trust, the 2024 one, and they are
therefore indemnified from being held personally liable.
[47] On the other hand, the respondents strongly argue that the trustees
did not act in an official capacity in the proceedings before Majiki J
and therefore her order and judgment was directed to them in their
personal capacities. In support of this contention the respondents
argue that this is so because they acted o utside the scope of a
valid 2011 deed of trust when they took over control of the school's
banking account. Consequent upon their taking control of the
account, the respondents' salaries were not paid and for that
reason they should be held responsible, in their personal
capacities, for payment of those salaries.
[48] In my view, two questions arise for consideration out of the
divergent parties' contentions. The first one is whether the writ was
properly sued out in conformity with the judgment or order of Majiki
J, bearing in mind that I have already come to the conclusion that
the Majiki J judgment cannot be contextually read to mean that the
trustees are personally liable for the debt and costs provided
therein.
[49] It is common cause and an indisputa ble fact that the proceedings
before Majiki J the trustees were cited in their representative
capacities and that is apparent from annexure " RX2" where after
the name of each trustee it is followed by an " N.O”,"indicating that
each trustee is cited on his or her representative capacity. Even in
the judgment the heading clearly indicates that the respondents,
who are the trustees, are cited therein in their nominee officio
capacity. That is reinforced by the fact that also at paragraph one of
the Majiki J judgment it is stated in clear and unambiguous terms
that " the first respondent is Vela School (the school) and five
trustees of Vela School Trust (the trustees), sued in that capacity
and as persons in control of the school's banking account ". In my
view, sued and cited in their representative capacity, the trustees
were ordered to, "within 48 hours of service of the order, to pay the
salaries of the applicants which were due on 25 May 2024...”
[50] After a thorough scrutiny of the Majiki J judgment and order no
other conclusion could be reached, other than that the trustees,
who were cited and sued in their official capacities, were ordered to
pay the debt and costs in their capacities, and not otherwise. In my
considered view, any other interpretation would lead to disastrous
results and an untenable situation, never intended by the judgment
and that is not even supported by its reasoning. In any event, there
is no finding in that judgment that the debt or costs should be
recovered from the trustees per sonally or be paid by them in their
personal capacities.
[51] Having found that the trustees were sued in their official capacity in
the proceedings before Majiki J, the next question to consider is
whether the writ executed by the sheriff against the appl icant's
movable goods was sued out in conformity with the Majiki J
judgment. As already stated, execution, by means of a writ, is a
means to give effect to a judgment 33. In my view the judgment that
had to be given effect to is, in the present matter, that of Majiki J
which directed the trustees, in their representative capacities, to
pay the respondents' salaries and costs. It follows that the writ was
therefore not in conformity with that judgment, as it was issued
against the applicant in her personal ca pacity and for that reason it
had to be set aside as irregular. This principle was affirmed by the
Supreme Court of Appeal in Rand West Local Municipality v
Quill Associates (Pty) Ltd where the court held that a writ will be
set aside where it does not acc ord with the order on which it was
purportedly issued. This matter, in my view, is a classic case of writ
33 LAWSA V ol 4 para 621 page 352.
that does not accord with or that is not in conformity with the
judgment and order on which it is purportedly issued and, no doubt,
it is liable to be set aside for that simple reason 34. That principle
was re -emphasised in A.J.N v W.L.N when the court held that a
writ cannot be issued out against the property of a person whom
there is no judgment35.
[52] As is this case in the present matter, there is no judgment against
the applicant, in her personal capacity. There was therefore
absolutely no reason for the writ to be issued and executed against
her property. There is no justification for such an action and that it
cannot survive legal scrutiny and must be set aside.
[53] There was much debate during argument about which trust deed is
a valid one. In my view that need not be decided in this matter as it
was never placed in issue before Majiki J. In the main application,
as already stated, the narrow issue for determination is whether the
applicant has made out a case, so convincingly that the court
should be inclined to confirm the Rule Nisi and the interim order
granted earlier on. That is the issue relevant for consideration in
these proceedings.
34 Rand West Local Municipality v Quill Associates (Pty) Ltd, Case No. 497/20 [2021 ZASCA 150 (26 October
2021)
35 A.J.N v W.L.N, [2023] ZASPPHC341; 17229/2006 (19 May 2023)
CONCLUSION
[54] I am of the view that there is no basis whatsoever for holding the
applicant personally liable for the debts of the trust, when there is
no specific finding in the judgment or order concerned that found
her to have acted negligently in breac h of her fiduciary duties as a
trustee. In my view the writ executed against her movable goods
was not in conformity with the Majiki J order and judgment and
should not have been issued.
[55] In the circumstances I conclude that the rule nisi calling upon the
respondents to show cause why the writ should not be set aside, It
should be confirmed. I also conclude that the interim order relating
to the return of the applicant's goods should also be made final.
This is so because the applicant has demonstrate d clearly that in
the present factual circumstances it will not be just and proper to
hold her personally liable for the debt and costs arising from the
Majiki J judgment.
[56] What then remains for consideration is a question of costs.
Applicant's counsel argued strongly that costs should be awarded
on a punitive scale. While I am of the view that the applicant is
entitled to the costs of suit, I do not find any reason or conduct on
the part of the respondents, during the proceedings, to be so
reprehensible so as to warrant such a drastic costs order. In the
result I make the following order.
(a) The counter application is dismissed with costs, which costs
are to be paid jointly and severally by the respondents, the one
paying the other to be absolved.
(b) That the rule nisi issued by this court on 13 September 2024 be
and is hereby confirmed.
(c) That the interim order granted by this court on 13 September
2024 be and is hereby made final; and
(d) That the respondents b e ordered to pay costs of the main
application, jointly and severally, the one paying the other to be
absolved.
T.A. NKELE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicants: Adv Mayosi
Instructed by: Maphanga Attorneys
Email: sipho@kwamaphanga.co.za
c/o Potelwa & Co
Email: potelwa5@mweb.co.za
Counsel for the Respondents: Mr Msindo
Instructed by: V.V. Msindo & Associates Inc
Email: vvmsindo@vodamail.co.za
Mr T. Mzwakali – In person (for the 3RD Respondent)
Emai: tabile@mzwakali.co.za
Heard on: 25 September 2025
Delivered on: 03 February 2026