IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
ANINA MALHERBE
and
WESBANK, A DMSION OF FIRSTRAND
BANK LIMITED
Coram: Montzinger AJ
Heard: 09 March 2026
Delivered: 11 March 2026
Case number: 8343/2024
Applicant / Defendant
Respondent/Plaintiff
Summary: Urgent application in terms of Uniform Court Rule 45A to
urgently stay execution process - principles of urgency and stay of execution
2
applied - Applicant appears in person - Application failed to meet the
requirements of urgency and to stay execution. Application dismissed.
ORDER
1. The application for the stay of execution is dismissed.
2. The applicant/defendant is ordered to pay the costs of the application on
the scale as between attorney and client.
JUDGMENT
Montzinger AJ:
Introduction
[ 1] This is an urgent application. The applicant, Ms Anina Malherbe, seeks
relief in terms of Uniform Rule 45A. She seeks an order staying the execution
of a summary judgment granted against her by this Court, pending the final
determination of a purported application for the rescission of that judgment.
The respondent, WesBank ( a division of FirstRand Bank Limited), opposes
the application.
[2] The applicant appeared in person. While she indicated to the Court that
she is a layperson, it is patently clear from the papers filed, her conduct in
court, and her compliance with the procedures prescribed by the rules, that
she possesses a reasonable understanding of the legal process and the
substantive requirements of the relief she seeks. Whether through self-study
3
or unacknowledged legal assistance, she clearly knows her way around the
court system and has participated fully at every stage of the proceedings.
A brief litigation background
[3] The background to this matter is well documented. On 12 December 2019,
the parties concluded an instalment sale agreement for a 2018 Land Rover
Evoque 2.0 S14 convertible motor vehicle. The applicant subsequently fell
into arrears. Despite the debt being restructured pursuant to a debt review
process in 2023, the applicant defaulted once again, having made no payments
toward the vehicle for well over two years while continuing to utilise it.
[ 4] Consequently, the respondent instituted action proceedings. After the
applicant raised several special pleas in the plea, the respondent applied for
summary judgment. On 4 September 2025, Kusevitsky J granted the summary
judgment, cancelling the agreement and ordering the immediate return of the
motor vehicle to the respondent. Unsatisfied with the summary judgment, the
applicant sought leave to appeal. That application was considered and
dismissed by Kusevitsk:y Jon 23 February 2026.
[5] Having exhausted her attempts to appeal the judgment, the applicant
approached the urgent court on 9 March 2026 on extremely abridged
timeframes, seeking an urgent stay of the execution process on the basis that
she intends to rescind the summary judgment and possibly appeal.
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Legal principles: Urgent applications and rule 45A
[6] Urgency is determined with reference to several different levels of
urgency, depending on the nature of the urgency and the facts of each
individual matter that is before the court as an urgent matter. The presiding
judge has to exercise a discretion in application of the facts with due regard to
the law in relation to urgency.
[7] Rule 6(12)(b) of the Uniform Rules of Court requires an applicant in an
urgent application to explicitly set out the circumstances which render the
matter urgent, and the reasons why substantial redress cannot be afforded at a
hearing in due course. As our courts have repeatedly held, an applicant cannot
sit idle and then rely on urgency that is entirely self-created1.
[8] As Fagan J held in IL & B Marcow Caterers2, the indulgence of an urgent
hearing is justified only where "sufficient and satisfactory" grounds are
shown, including an explanation why ordinary time-periods will not provide
substantial redress, and with due regard to the prejudice to the respondent and
to other litigants whose cases are displaced on the roll. Urgency is assessed
objectively and mere importance to the applicant does not suffice, and
self-created urgency will generally not warrant departure from the ordinary
procedures3. Although delay is relevant, it is not determinative and is not, on
its own a ground, for refusing to regard the matter as urgent. A court is obliged
to consider the circumstances of the case and the explanation given. The
1 Schweizer-Reneke Vleis Maatskappy. (Edms) Bpk v Minister van Landbou & andere 197 I (I) PH Fl I (T)
at Fl 1-12
2 IL & B Marcow Caterers (Pty) Ltd v Greatennans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypennarket
(Pty)LtdandAnotherl981 (4)SA 108(C)p 112-G
3 New Nation Movement NPC and Others v President of the Republic of South Africa and Others
(CCTl 10/19) (2019) ZACC 27; 2019 (9) BCLR 1104 (CC) (3 July 2019) paras 6- 9
5
important issue is whether, despite the delay, the applicant can or cannot be
afforded substantial redress at a hearing in due course4 .
[9] In respect of the substantive relief, Rule 45A confers a discretion on the
court to suspend the execution of any order. To succeed under Rule 45A, an
applicant must demonstrate that real and substantial injustice will result if the
suspension is not granted5. Also, since the court will be guided by considering
the factors usually applicable to interim interdicts it means that where a stay
is sought pending a rescission application or some other substantive challenge,
the applicant must demonstrate, at a minimum, that there in fact is a rescission
application, or the other challenge, and that the application or other challenge
has reasonable prospects of success. The last mentioned approach relates to
the requirement of having to establish a prima facie right. This is because an
applicant will suffer irreparable harm if the execution is allowed while the
rescission application or some other challenge, may ultimately be successful6.
Application of principles to the facts
[ 1 O] Applying the foreshadowed principles to the facts at hand, this
application falls at both hurdles. There is a clear lack of urgency and also no
merits in the application. The reality that the respondent could execute upon
the summary judgment and impound the vehicle was known on 4 September
2025. Almost six months have passed since then. The applicant's application
for leave to appeal had no bearing on the institution of a possible rescission
4 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Gra11ite (Pty) Ltd and Others (11/33767) [2011)
ZAGPJHC 196 (23 September 2011); [20 12) JOL 28244 (GSJ)
5 Gois tla Shakespeare's Pub v Van Zyl and Others 201 l (1) SA 148 (LC)
6 Gios supra par 38
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application. Hauling the respondent to court on a mere five days' notice is a
blatant abuse of process. The urgency is entirely self-created.
[11] Furthermore, the applicant has failed to establish that she will suffer
substantial prejudice if the execution proceeds. She complains of personal
inconvenience and relies on the execution of the court order causing her
"irreparable harm". The lawful execution of a valid court order to recover a
luxury depreciating asset does not constitute prejudice. On the contrary, the
balance of convenience heavily favours the respondent, which is legally
obliged to mitigate its damages by recovering the asset.
[12] Most fundamentally, the relief sought is entirely stillborn because there
is, in fact, no rescission application before this Court. There is consequently
nothing that can notionally impugn Kusevitsky J1s judgment. Consequently,
the applicant cannot show that real and substantial injustice will result7 if the
execution process is allowed to continue.
The applicant's purported grounds for rescission
[13] Despite the absence of a rescission application, the applicant foreshadows
her purported grounds for rescission in her founding affidavit. In the interest
of clarity, my reference to the rescission application is not a finding that a
resc1ss1on application can in fact be employed to impugn a summary
judgment. Counsel for the respondent, Mr Randall, referred to various
judgments that supports the proposition that a summary judgment is incapable
7 Firm Mortage Solutions (Pty) Ltd and Another v ABSA Bank Ltd and Another; 2014 {}) SA 168 (:NCC)
7
of rescission. Especially, where the defendant filed an affidavit opposing
summary judgment and participated in the hearing.
[14] I shall, in any event, briefly dispose of the purported rescission grounds
to illustrate why any intended rescission application lacks any prospect of
success and why this application must fail. The same grounds raised in support
of this application were substantially also raised before Kusevitsky J at the
hearing of the summary judgment application and the leave to appeal
application.
[15] First, the applicant relies on Rule 42(1)(a), alleging the order was
erroneously sought or granted in her absence, claiming that the required Rule
32(2) affidavit was not before the court. This is factually and legally baseless.
The applicant was not absent; she was present, opposed the summary
judgment, and argued the matter in person. ~1orcove1, it is clear from the
record that the summary judgment application and supporting affidavit were
properly served on her and was before the court when the matter was heard.
[ 16] Second, the applicant alleges a patent ambiguity in the order under Rule
42( 1 )(b) regarding the identity of the execution creditor ( alleging confusion
between Wesbank, FirstRand Bank Ltd, and FirstRand Auto Receivables RF
Ltd). This exact issue was raised by the applicant as a special plea before
Kusevitsky J, who rejected it as disingenuous. I take the same view.
[ 17] Third, the applicant invokes the common-law ground of iustus error,
claiming she did not conclude the finance agreement with W esbank. As Mr
Randall, who appeared for the respondents, correctly points out, iustus
error generally applies where a party is induced to contract based on a
8
reasonable mistake8• Even if this bizarre proposition was true, if the applicant
truly believed she never contracted with the respondent, she would have no
legal basis to retain possession of the vehicle and would still be obliged to
return it.
Conclusion
[18] I therefore find that this application is a transparent and disguised attempt
to reopen the merits of a summary judgment against which leave to appeal has
already been refused. The applicant has sought to delay the lawful execution
process through meritless arguments and an abuse of the urgent court roll.
Although, the applicant failed to establish urgency, the application also had
no merits. While ordinarily the resultant order is to simply struck the matter
off the roll, in this instance a dismissal of the application is warranted.
[19] The respondent has requested a punitive costs order. Given the
applicant's obvious understanding of legal procedure and her vexatious
attempts to frustrate the execution of a valid court order while retaining a
luxury asset at the respondent's expense, a punitive costs order is undoubtedly
warranted.
[20] In the result, I make the following order:
I. The application to stay execution is dismissed.
8 Sonap Petroleum (South Africa) (Pty) Ltd v Pappadogianis (483/90) [1992} ZASCA 56; 1992 (3) SA 234
(AD); [1992] 2 All SA I 14 (A)
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2. The applicant/defendant is ordered to pay the costs of the
application on the scale as between attorney
Appearances:
For applicant:
For respondent:
Ms Malherbe in person
Mr Ross Randall
Schneider Galloon Reef & Co.
Ms C Stockenstroom
ONTZINGER
HIGH COURT