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[2026] ZAGPPHC 188
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Okafor v Standard Bank of South Africa Limited and Another (40852/2021) [2026] ZAGPPHC 188 (9 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 40852/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE: 9/3/26
SIGNATURE
In
the matter between:
CHUKWUKA
SOBECHI OKAFOR
NO
Applicant
(In
his capacity as the appointed Executor in the Deceased Estate of
Ngozi Romanus Okafor)
Estate
Number: 026194/2019
and
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
1
st
Respondent
{Registration
Number:
1962/000738/06
THE
MASTER OF THE HIGH
COURT
2
nd
Respondent
(Reference
Number:
026194/2019)
JUDGMENT
ALLY,AJ
[1]
This
is an opposed
application
for
the rescission
of
a default
judgment
[1]
granted by Mokose J on 27 May 2022
.
[2]
On the day of
the hearing, the applicant was
'
represented
'
by the younger
brother of the Executor of the Estate and the first respondent by
Adv. N
.
Phambuka
.
I enquired
about the basis on which Okafor Junior was representing the deceased
Estate and was told that the Executor is in Nigeria
and is ill. I
explained that the deceased estate could not be represented
by Okafor
Junior and that I would stand the matter down so that arrangements
could be made
for the applicant
to be
represented or for the applicant to appear.
[3]
At the
adjourned hearing, the Executor of the deceased estate was in
attendance virtually
from Nigeria
.
After a brief
discussion
regarding
representation,
I ruled that it would be
in
the interests
of justice for the applicant, as Executor, to make
representations
to the Court.
He could not explain why the applicant's attorneys had withdrawn or
why they were not present.
[4]
It
should
be noted
that
the applicant
did not file heads of argument as is directed by this Division
'
s
Practice Manual nor was a practice note filed.
[5]
However, the
first respondent having enrolled the matter and having filed a
practice note and heads of argument, the matter proceeded.
[6]
At the outset
it must be stated that the applicant had applied for condonation,
in
the
event that the application was out of time
.
The first
respondent did not formally object
to condonation
being granted
but left the decision
to the Court.
I
deemed
it
in the interests of justice to condone the late filing of the
application and proceeded to hear the matter.
[7]
Before
proceeding to hear the applicant, I
indicated
to
the
first
respondent's Counsel
that
there was a matter decided in the Western Cape Division
[2]
which was similar to this one and that I would allow Counsel to have
a look at the case and make submissions.
[8]
Counsel
for the first respondent took the opportunity to read the judgment
and submitted that the present matter before this Court
is
distinguishable in that
in
the
Nkhahle
[3]
matter,
the matter was at the stage of default judgment and the matter before
this Court was at the stage where default judgment
has been granted
and the court
is
dealing
with an application for
rescission
and
according to this submission,
as
I understood
it,
the Section
29
[4]
procedure
as
read with
Section
30 is not applicable.
[9]
Section 29 of
the Administration of Estates
Act provides
as follows:
"(1)
Every
executor shall, as soon as may be after letters of executorship
have
been granted to him
,
cause
a
notice to
be published
in the
Gazette and
in
one or
more newspapers
circulating
in
the
district
in
which
the
deceased
ordinarily
resided
at the
time of his death and
,
if at
any time within the period of
twelve
months
immediately preceding
the
date of his death he so resided
in
any
other district,
also in
one or more newspapers
circulating
in
that
other
district,
or if
he was
not
ordinarily
so
resident
in any
district
in
the
Republic
,
in
one or
more
newspapers
circulating
in
a
district
where
the
deceased
owned
property,
calling
upon
all persons
having
claims against
his
estate to lodge
such
claims
with
the
executor
within
such
period
(not
being
less
than
thirty
days
or more
than
three
months)
from
the date of the latest
publication
of
the
notice
as may be
specified therein
.
(2)
……
"
[10]
Section 29
must be read with section 30 which provides as follows
:
"
No
person charged
with
the execution
of any
writ or other process shall-
(a)
before
the expiry of the period specified in the notice referred to in
section twenty-nine; or
(b)
thereafter,
unless
,
in the
case of property of
a
value not
exceeding
R5 000
,
the
Master
or
,
in the
case of any other property
,
the
Court otherwise directs,
sell
any
property
in the
estate of any deceased
person
which
has
been attached whether
before
or after
his
death
under
such
writ or process:
Provided
that
the foregoing provisions of this section shall not apply if such
first-mentioned person could not have known of the death of
the
deceased
person
."
[11]
Counsel
fo
r
the
first
respondent
submitted
supplementary
heads
of
argument
[5]
dealing with the implications of section 29 and 30 of the
Administration of Estates Act on this particular case after the court
had given him as the well as the applicant the opportunity of
submitting such supplementary heads of argument. The applicant did
not take up this opportunity
.
[12]
Counsel for the first
respondent submits in the said supplementary heads of argument
,
firstly
,
that the first
respondent's claim was founded in common law, secondly
,
that the
Nkhahle
decision
was incorrectly decided and thirdly, the
Nkhahle
decision
is not binding on this Court
.
[13]
The
first submission
of
Counsel for the first respondent can be dealt with quickly. If one
has regard
to
the Order
[6]
of Mokose
J,
prayer 3 makes specific reference to section 30(b) and therefore the
common law argument by the first respondent can be rejected
out of
hand on this basis
.
[14]
The second submission of Counsel for the first respondent is that the
Nkhahle
judgment
is incorrectly decided. In this regard, Counsel submits that the
court in
Nkhahle,
misinterpreted
sections 29 and 30 of the Administration of Estates Act. Counsel
submitted that Binns-Ward J impermissibly read section
30(a) into
section 30(b) for the reason that
"or"
is used after
section 30(a). However, Counsel for
the
applicant has
misunderstood
the judgment
of Binns-Ward J.
If
one has
regard
to both
subsections,
both
relate
to selling of
the property and what must be done before
selling of the
property
can
be authorised
.
[15]
The third
submission relating to the
Nkhahle
matter not
being binding on this Court is well
taken
but if this
court is of the view that the law as expressed by Binns-Ward J is
good then this court may take the view that the decision
is correct
and follow it. However, I am of the view that this matter must be
dealt with as one relating to rescission and not whether
the first
respondent
should have
followed the prescripts of Section 29 as read with section 30 of the
Administration of Estates Act.
[16]
Accordingly
,
this
court
needs
to
consider whether the applicant
has
made
out a case
of
rescission
on
the papers
.
The
first ground
relied
on by the applicant
is
that
the
notice
for default judgment was not served on the applicant. However
,
if
one
has
regard
to the facts at the time of the hearing of the application for
default judgment,
then
it is plain to see that the notice for default judgment
was
served on the address
[7]
which
was also the
domicilium
citandi et executandi
that
the applicant
had
provided in the acceptance
of
trust as executor
form
[8]
.
[17]
The
applicant also relied on not receiving a Section 129 notice
in
terms
of
the
National
Credit Act
[9]
.
In
this
regard
the
first respond submits that the Section 129 notice was delivered by
registered post
[10]
as was
incumbent on an applicant, applying
for
default
judgment,
to
do.
This
court
is
satisfied
that
the
first
respondent
complied with their obligations in terms of the
Sebola
[11]
case
as well as the
Kabyana
[12]
case.
[18]
The
requirements for a rescission of judgment in terms of Rule 31(2) (b)
which seems to be the provision relied upon by the applicant
is:
"A
defendant may within 20 days after acquiring knowledge of such
judgment apply to court
upon
notice
to the plaintiff
to set
aside such judgment
and the
court
may
,
upon
good cause shown,
set
aside the default
judgment
on such
terms
as it
deems fit
."
The
following requirements
[13]
can
be gleaned from the Rule and this is in respect to 'good cause
shown'
:
18.1.
the applicant
must give a reasonable
explanation
for the delay;
18.2.
the
application must be
bona
fide
and
not made merely for delaying the plaintiff's claim;
18.3.
the applicant
must show he/she has a
bona
fide
defence
to the plaintiff's claim.
[19]
On a
conspectus of the evidence before this court, it is my view
,
that the
applicant has provided a reasonable delay which delay is a short one
in the circumstances. However
,
thereafter
applicant's case objectively speaking disappears
.
During the
hearing the applicant's
request was to
be given more time rather than showing the court that he has a
defence to the claim for default judgment The applicant
wanted more
time to make arrangements
for payment to
the bank
.
It
must be stated that the applicant's
legal
representatives
,
on the face
of it, seem
to have let
the applicant down.
[20]
Accordingly
for the
reasons set out above
,
the applicant
has failed to convince this court that he is entitled to have the
abovementioned judgment rescinded and the application
must therefore
fail.
[21]
ln respect of costs there is no reason why costs should not follow
the result and that costs must also be
on the attorney and client
scale as catered for in the agreement.
[22]
In the result,
the following Order shall issue:
a).
the
application for rescission is dismissed;
b).
the applicant
is to pay the costs of this application
on an attorney
and client scale.
ALLY.
G
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
Electronically
submitted
therefore
unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The
date for
hand-down is deemed to be 9 March 2026.
Date
of hearing: 2 and 4 September 2025
Date
of judgment 9 March 2026
For
the Applicant:
In
person
iamsirchuck
s
@gmail
.
com
For
the First Respondent:
Adv
.
N. Phambuka
instructed by Findlay Niemeyer Incorporated
annal
i
en@findlay
.
co
.
za
[1]
Caselines
:
Section:
0000-1 - 2
[2]
Standard
Bank of South Africa Limited v Nkhahle & Others 2021 WCHC
[26
April2021]
[3]
supra
[4]
Administration
of Estates Act 66 of 1965
, as amended
[5]
Caselines:
Sect
i
on
V1
[6]
sup
r
a
[7]
Caselines:
Section D1
[8]
Caselines:
Section U1
[9]
Act
34 of 2005, as amended
[10]
Caselines:
Section U23 -
U26
[11]
Sebola
v Standa
r
d
of South Africa Limited & Ano
2012 (5) SA 142
CC
[12]
Kabyana
v Standard Bank of South Africa Limited
2014 (3) SA 56
CC
[13]
Grant
v Plumbers (Pty) Ltd
1949 (2) SA 470
(0)
476-477