IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
REPORTABLE
CASE NO: 11920/2020
In the matter between:
ROSALIND DALRYMPLE APPLICANT
and
CELIA ERICA RIACH 1ST RESPONDENT
TREVOR SCHOUW N.O. 2nd RESPONDENT
THE MASTER OF THE HIGH COURT 3rd RESPONDENT
Neutral citation: Dalrymple v Riach (Case no: 11920/20) [2026]
ZAWCHC (2 March 2026)
Coram: MAYOSI, AJ
Heard: 25 February 2026
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Delivered: 2 March 2026
Summary: Rule 45A – stay of execution of an order of this Court pending
the final determination of an application to rescind th at order – underlying
causa is disputed - prima facie right to relief in the rescission application is
present – as is a well-grounded apprehension that execution is imminent at
the instance of the first respondent – irreparable harm will result if execution
is not stayed and the applicant ultimately succeeds in establishing a clear
right.
ORDER
Having read the papers and having heard the applicant and the first
respondent, it is ordered that:
[1] The execution, in any manner whatsoever, of the order granted by this
Court, per Andrews AJ, on 29 July 2024 under case number 11920/20 ( the
Consent Order) is hereby stayed pending the final determination of the
applicant’s application for the rescission of the Consent Order (the
rescission application).
[2] Pending the final determination of the rescission application , and for
the duration of the stay of execution of the Consent Order , the first
respondent is interdicted and restrained from taking any further steps
whatsoever to enforce, give effect to or execute upon the Consent Order in
any manner whatsoever, whether directly or indirectly, in any court, country ,
division or district having jurisdiction, locally or internationally.
[3] Without limiting the generality of paragraph [2] above , pending the
final determination of the rescission application, and for the duration of the
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stay in execution of the Consent Order, the first respondent is specifically
interdicted and restrained from giving effect to and/or executing upon the
Consent Order in any manner whatsoever, whether directly or indire ctly, in
any co urt, country, division or district having jurisdiction, locally or
internationally, including by:
[a] issuing or causing the issue of writs o f execution, and/or
causing effect to be given thereto;
[b] applying for or procuring and/or causing the application for or
procuring of any warrants of attachment and/or instruments of
execution, attachment and/or enforcement of any nature whatsoever,
and causing effect to be given thereto;
[c] instituting, persisting with, or pursuing in respect of the
Consent Order, domestication proceedings in the Circuit Court of the
Seventh Judicial Circuit in and for Volusia Count y in Florida, in the
United States of America ( the Circuit Court ), and Recording in the
Circuit Court and in the offic ial records of Volusia County, Florida,
USA, and/ or giving effect thereto, and/or executing any order granted
and/or writs and/or warrants issued pursuant thereto;
[d] initiating and/or persisting with proceedings, locally o r
internationally, in order to procure and/or give effect to any court or
Administrative Order or Recording in respect of the Consent Order,
and/or the recording of the Consent Order as an out-of-country foreign
judgment and to obtain instruments of execution and/or initiate and
pursue execution upon such court or Administrative Order or
Recording in respect of the Consent Order or Recording, as the case
may be.
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[4] The first respondent is directed to , forthwith, take all steps necessary
to instruct her attorneys, counsel and legal representatives, locally and
abroad in the USA , to cease and desist from taking any steps and/or
enforcement actions under the Consent Order and/or domestication thereof
by the recording thereof as a foreign judgment and/or any court o r
Administrative Order or Recording in order to give effect to , or in order to
achieve the restrained conduct as referred to in paragraphs [2] and [3] above
despite the stay of execution of the Consent Order including, if necessary, to
terminate her instructions to such attorneys, counsel and legal
representatives if her instructions to cease and desist as aforesaid are not
heeded forthwith and to provide confirmation thereof in writing to the
applicant’s attorneys, within 24 hours of the granting of this Order.
[5] The costs of this application shall stand over for determination in the
rescission application.
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JUDGMENT
Mayosi AJ:
Introduction
[1] This is an application brought in terms of Rule 45A of the Uniform
Rules, for a stay in the execution of an order granted by this Court , per
Andrews AJ, on 29 July 2024 in an action under the same case number. The
first respondent was the plaintiff in that action; the second respondent was
the first defendant; the applicant was the second defendant and the third
respondent was the third defendant in those proceedings.
[2] The order which the applicant seeks to stay the execution of was
granted with the consent of the first respondent (as plaintiff in the action )
and the second respondent (as the first defendant) hence my reference to it in
this judgment as the Consent Order.
[3] According to the applicant, the Consent Order was granted without
her knowledge and consent . She first became aware of it on or about 27
May 2025 when she received it via a certified mail from the first
respondent’s counsel, which was forwarded to her in New York where she
lived at the time. [4] Though born in South Africa, the applicant has
resided and worked in the United States of America (USA) for more than 44
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years, and she remains there. The first respondent lives in Bryanston,
Johannesburg in South Africa.
[5] Paragraph 3 of the Consent Order contains the following order
concerning the applicant:
In the event that the first defendant1 is unable to transfer 50% of the shares
to the plaintiff2 or to pay the plaintiff the amount of R9 754 670.20 (being
the current value of 50% of the shares), then and in that event the second
defendant3 is ordered and directed to pay or restore to the plaintiff, within
10 days of the date of this order , an amount equal to the difference
between the amount of R9 754 670.20 and such sum as may have been
paid to the plaintiff by the first defendant in terms of paragraph 5.5 below,
with interest a tempore mora at the legally prescribed rate from date of
judgment.4
[6] The applicant ’s issue with the Consent Order is not limited to the
order made in paragraph 3, but extends to its entirety. She alleges that the
Consent Order was obtained by fraud on the part of the first respondent,
which fraud induced the second respondent to reach agreement with the first
respondent and accept the terms of the order that ultimately became the
Consent Order. According to the applicant, her c onsent was not obtained
before the Consent Order was granted, and for reasons not directly relevant
to the issues for determination in this application, she would not have given
it had she been asked for it.
1 The second respondent in this application.
2 The first respondent in this application.
3 Being the applicant in this application.
4 The emphasis is mine.
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[7] In November 2025, the applicant brought an application in this Court
to rescind the Consent Order. The application is opposed by the first
respondent.
[8] On 2 February 2026, Jonker AJ made an order postponing the
rescission application for hearing on the opposed motion roll on 25 January
2027.
[9] It is in the context of the pending rescission application that the
applicant brings this stay in execution application in which she furthermore
seeks various interim interdictory orders aimed at preventing and restraining
the first respondent from taking any steps whatsoever to execute the Consent
Order, including instructing her lawyers in America to pursue any execution
steps for the duration of the stay in execution . The interim interdictory
relief is sought in order to buttress the stay relief and render it more
effective, given that the first respondent seeks to execute the Consent Order
against the applicant in the USA where the latter resides.
[10] The application is brought on an urgent basis because an application is
pending in the Circuit Court of the Seventh Judicial Circuit in and for
Volusia County in Florida, USA, which seeks to convert the Consent Order
to a judgement of that jurisdiction. It is that pending application, brought at
the instance of the first respondent and in which the applicant and the second
respondent are cited as part ies, that is referred to in the papers as the
domestication proceedings which, as I understand it , is the legal process of
recognising a court order from one jurisdiction in another jurisdiction, giving
it the same legal effect as if it were originally issued in the latter jurisdiction
for the purposes of executing it in that jurisdiction.
[11] The first respondent has confirmed that the domestication proceedings
scheduled for hearing in Florida on 31 March 2026 will proceed on that date.
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The first respondent does not agree to postpone or stay the domestication
proceedings until the final outcome of the rescission application. However,
the first respondent is prepared to give an undertaking that she will not cause
any warrants of attachment to be issued in execution of the domesticated
Consent Order in the USA until the rescission application has been
determined. I deal with this undertaking later in this judgement.
[12] This stay application is opposed by the first respondent. There was no
opposition to the first respondent’s application for condonation for the late
filing of its answering affidavit, and the Court grants the condonation
sought.
[13] No relief is sought against the second and third respondents. The
second respondent abides the decision of this Court.
Rule 45A
[14] The Rule empowers this Court to suspend the execution of any order
for such period as it may deem fit. The Rule affords the court a discretion of
the widest kind and imposes no procedural or other limitations or fetters on
the power it confers.5
[15] The general principles for the gr anting of a stay in execution were
summarised as follows in Gois t/a Shakespeare’s Pub v Van Zyl:6
[a] A court will grant a stay of execution where real and substantial
justice requires it or injustice would otherwise result.
5 Road Accident Fund v Strydom 2001 (1) SA 292 (C) at 301B
6 2011 (1) SA 148 (LC) at 155H-156B, cited with approval by this Court in Firm Mortgage Solutions (Pty)
Ltd v Absa Bank Ltd 2014 (1) SA 168 (WCC), at 170F-G.
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[b] The court will be guided by considering the factors usually
applicable to interim interdicts, except where the applicant is not
asserting a right, but attempting to avert injustice.
[c] The court must be satisfied that:
[i] the applicant has a well -grounded apprehension that the
execution is taking place at the instance of the respondent; and
[ii] irreparable harm will result if execution is not stayed and
the applicant ultimately succeeds in establishing a clear right.
[d] Irreparable harm will invariably result if there is a possibility
that the underlying causa may ultimately be removed, i.e., where the
underlying causa is the subject-matter of an ongoing disput e between
the parties.
[e] The court is not concerned with the merits of the underlying
dispute – the sole enquiry is simply whether the causa is in dispute.
[16] The general principle summarised in paragraph [e] takes on a
particular significance in this case when regard is had to the basis upon
which the first respondent opposes this stay application.
Analysis
[17] In resisting th is application the first respondent relies on an incorrect
test for a stay in execution in the heads of argument filed on her behalf,
wherein it is submitted that this Court will only suspend the execution of an
order if there is a possibility that the underlying causa, being the Consent
Order, will be removed. That is not the correct threshold to be applied to an
assessment of the possibilities relating to the underlying causa.
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[18] The correct threshold is a possibility that the underlying causa may
ultimately be removed, in which event irreparable harm will invariably result
if the stay of execution is not granted.
[19] The higher threshold for which the first respondent contends places
the assessment of the possibilities at the level of certainty for the purposes of
granting a stay of execution , for the word ‘will’ refers to something that is
definitely going to happen, whereas ‘may’ means something might or could
happen and there is no certainty. The application of the (incorrect) test for
which the first respondent contends would necessitate this Court inquiring
into the merits of the rescission application which is against the general
principle that for the purposes of this application this Court is not concerned
with the merits of the underlying dispute – the sole inquiry being simply
whether or not the causa is in dispute. In this regard, and to the extent that
the bulk of the first respondent’s oral and written argument was dedicated to
the merits of the rescission application, this approach was incorrect. It is
legally unsustainable and therefore unhelpful to the first respondent’s
defence.
[20] The law is clear that this Court will grant a stay of execution where
the underlying causa of the judgment debt is being dis puted.7 Where the
causa for the impugned execution is a judgment or an order, and the order is
placed in dis pute because an application for recission has been brought,
grounds may well exist for a court to exercise its discretion in favour of
granting a stay in execution.8
[21] In this case, the underlying causa is clearly in dispute as is evinced by
the rescission application, in which t he applicant alleges fraud as a basis for
7 Road Accident Fund v Strydom 2001 (1) SA 292 (C ) at 300B
8 Firm Mortgage Solutions (Pty) Ltd and Another v ABSA Bank Ltd and Another 2014 (1) SA 168 (WCC),
para [6]
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setting aside the Consent Order. Since fraud is a valid ground for rescinding
an order or judgment at common law it is possible that the applicant could
succeed in establishing the alleged fraud in the rescission application,
resulting in the removal of the underlying causa, i.e., the Consent Order. I
do not have to go into the merits of the rescission application in order for me
to conclude thus. In the circumstances , the applicant has demonstrated a
prima facie right to the relief sought in the rescission application , for the
purposes of the present application.
[22] If fraud is indeed prove d in the rescission application, then an
injustice will have occurred in the granting of the Consent Order.
Furthermore, injustice in the form of irreparable harm to the applicant will
result if the execution of an order possibly obtained in this manner is not
stayed, and the applicant ultimately succeeds in the rescission application.
[23] The first respondent denies tha t she is taking steps to execute the
Consent Order. According to her, all that she is doing is to apply for it to be
domesticated in the USA and, so the argument goes, the domestication
application merely constitutes legal proceedings that do not amount to
execution proceedings, as only once domestication has occurred will the first
respondent be in a position to take step to execute the Consent Order.
[24] In my view, the first respondent is splitting hairs with this argument .
It is overly technical, and is the antithesis of the purposive interpretation that
should appropriately be attached to said domestication proceedings.
[25] In order to execute the Consent Order against the applicant in the
USA, the first respondent must successfully domesticate it in the relevant
jurisdiction of that country, thereby converting it to an executable judgment
of that jurisdiction. The domestication legal proceedings are therefore a first
and necessary step in the execution of the Consent Order by the first
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respondent in the USA. The sole reason for domesticating the Consent Order
in the USA is to execute it against the applicant in that country , otherwise
those proceedings serve no purpose. On the flip side, the Consent Order is
meaningless to the first respondent as against the applicant in the USA
unless the first respondent succeeds in domesticating it in the relevant
jurisdiction of that country. It being a sine qua non for executing the
Consent Order in the USA, domestication and execution ar e not severable
from each other. In my view, they form part of the same action of executing
the Consent Order.
[26] Given the first respondent’s insistence that the domestication
proceedings scheduled to occur in Florida on 31 March 2026 will proceed, I
am satisfied that there are good grounds for the applicant to be apprehensive
that the execution of the Consent Order is taking place at the instance of the
first respondent.
[27] The first respondent’s undertaking that she will not take any further
steps to execute the Consent Order after it is domesticated is cold comfort
for the applicant, given that as a party cited in those proceedings she must
incur the cost of participating in them in circumstances where she disputes
the validity of the very Consent Order that forms the subject matter of those
proceedings. This is manifestly against the interests of justice.
[28] In the heads of argument filed on behalf o f the first respondent it is
submitted that she will be prejudiced if the domestication procee dings are
halted at this point because she might be forced to re -initiate them at a later
stage with the associated waste of costs and time. This belies the reality
that if the domestication proceedings are to be halted now , th at will mean
that they will be postponed until the final outcome of the rescission
application is known, and can be re -enrolled and proceed at that later stage.
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Given that a domestication of the Consent Order will permit its immediate
execution, in the circumstances the prejudice to the applicant if th at occurs
will be greater than the prejudice to the first respondent if those proceedings
are halted.
[29] An undertaking that gives true meaning to a stay in the execution of
the Consent Order is one whose effect includes that the first respondent will
not proceed with the domestication proceedings on 31 March 2026, which is
the undertaking that she is not willing to give.
[30] In addition to the order staying the execution of the Consent Order,
the applicant seeks interdictory relief pending the final determination of the
rescission application and for the duration of the stay of execution . Th e
purpose of this relief is to prevent and restrain the first respondent from
taking any further steps whatsoever to enforce, give effect to or execute
upon the Consent Order in any manner whatsoever , whether directly or
indirectly in any court or country that has jurisdiction, locally or
internationally. This relief is justified, in order to regulate the first
respondent’s conduct and ensure that she gives effect to the stay in execution
sought. These remedies are aimed at compelling the first respondent to
desist from pursuing any steps or engaging in any conduct whatsoever
whose end goal is to execute the Consent Order, including instructing her
legal representatives in the USA to do so. The interdictory orders sought are
necessary on the facts of this case.
Conclusion
[31] I am satisfied that the applicant has established that: (a) she has a
prima facie right to the relief that she seeks in the rescission application; (b)
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there is a well -grounded apprehension of irreparable harm to her if the stay
in execution coupled with the interim interdictory orders that she seeks are
not granted and she ultimately succeeds in the rescission application; (c) the
balance of convenience favours the granting of the relief sought in this
application; and (d) she has no other remedy. Real and substantial justice
requires that the execution of the Consent Order be stayed until the final
determination of the rescission application.
[32] In the circumstances, the following order is made:
[1] The execution, in any manner whatsoever, of the order granted
by this Court, per Andrews AJ, on 29 July 2024 under case number
11920/20 ( the Consent Order) is hereby stayed pending the final
determination of the applicant’s application for the rescission of the
Consent Order (the rescission application).
[2] Pending the final determination of the rescission application,
and for the duration of the stay of execution of the Consent Order, the
first respondent is interdicted and restrained from taking any further
steps whatsoever to enforce, give effect to or execute upon the
Consent Order in any manner whatsoever, whether directly or
indirectly, in any court, country, division or district having
jurisdiction, locally or internationally.
[3] Without limiting the generality of paragraph [2] above, pending
the final determination of the rescission application, and for the
duration of the stay in execution of the Consent Order, the first
respondent is specifically interdicted and restrained from giving effect
to and/or executing upon the Consent Order in any manner
whatsoever, whether directly or indirectly, in any court, country,
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division or district having jurisdiction, locally or internationally,
including by:
[a] issuing or causing the issue of writs of execution, and/or
causing effect to be given thereto;
[b] applying for or procuring and/or causing the application
for or procuring of any warrants of attachment and/or
instruments of execution, attachment and/or enforcement of any
nature whatsoever, and causing effect to be given thereto;
[c] instituting, persisting with, or pursuing in respect of the
Consent Order, domestication proceedings in the Circuit Court
of the Seventh Judicial Circuit in and for Volusia County in
Florida, in the United States of America ( the Circuit Court ),
and Recording in the Circuit Court and in the official records of
Volusia County, Florida, USA, and/ or giving effect thereto,
and/or executing any order granted and/or writs and/or warrants
issued pursuant thereto;
[d] initiating and/or persisting with proceedings, locally or
internationally, in order to procure and/or give effect to any
court or Administrative Order or Recording in respect of the
Consent Order, and/or the recording of the Consent Order as an
out-of-country foreign judgment and to obtain instruments of
execution and/or initiate and pursue execution upon such court
or Administrative Order or Recording in respect of the Consent
Order or Recording, as the case may be.
[4] The first respondent is directed to, forthwith, take all steps
necessary to instruct her attorneys, counsel and legal representatives,
locally and abroad in the USA, to cease and desist from taking any
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steps and/or enforcement actions under the Consent Order and/or
domestication thereof by the recording thereof as a foreign judgment
and/or any court or Administrative Order or Recording in order to
give effect to, or in order to achieve the restrained conduct as referred
to in paragraphs [2] and [3] above despite the stay of execution of the
Consent Order including, if necessary, to terminate her instructions to
such attorneys, counsel and legal representatives if her instructions to
cease and desist as aforesaid are not heeded forthwith and to provide
confirmation thereof in writing to the applicant’s attorneys, within 24
hours of the granting of this Order.
[5] The costs of this application shall stand over for determination
in the rescission application.
_____________________________
N MAYOSI
ACTING JUDGE OF THE HIGH COURT
APPEARANCES
For applicant: Advocate E. Wessels SC, Johannesburg
For first respondent: Advocate AR Newton, Cape Town