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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2026-053157
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 30/03/2026
SIGNATURE
In the matter between:
M[...] M[...] M[...] OBO S[...] M[...] Execution Creditor/
Applicant
And
FIRSTRAND BANK LTD First Respondent
VILAKAZI MARY Second Respondent
DAVIAS MARKOS GEORGE Third Respondent
BURGER JOHAN PETRUS Fourth Respondent
WINTERBOER THOMAS Fifth Respondent
NAIDOO PREMILLA DEVI Sixth Respondent
VON ZEUNER LOUIS LEON Seventh Respondent
ROSCHERR ZELDA Eight Respondent
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SIBISI SIBUSISO PATRICK Ninth Respondent
ISAACS TAMARA CAROL Tenth Respondent
MAKOSHOLO PABALLO JOEL Eleventh Respondent
ROAD ACCIDENT FUND Twelfth Respondent
SHERIFF CENTURION EAST Interested Party
JUDGMENT
STRYDOM, J
[1] This is an application brought on an urgent basis for an order that the 1st
respondent, First Rand Bank Ltd (FRB or FNB ) and the 2nd to the 11th
respondents (the directors of FRB , collectively referred to as the “directors”)
and the Road Accident Fund (the RAF) be ordered/compelled to comply with
the applicant's writ s of execution obtained pursuant to a court order, dated 19
February 2026, obtained in the Polokwane High Court. Further, ancillary orders
are sought, inter alia, to permit reliance on hearsay evidence and contempt of
court applications.
[2] This application was opposed by FRB, its directors, and the RAF.
[3] The first issue to be adjudicated is the matter's urgency . To decide this , the
court would have regard to the nature and merits of the application. In what
follows is a chronology of events, with limited references to the merits of the
application:
a. On 19 February 202 5, a court order was obtained by default against the
RAF for the payment of R7 401 660.00 plus costs , constituting the
payment for the future loss of earnings of a minor child who was injured in
a motor vehicle collision. The child was a pedestrian when the collision
took place.
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b. The court order stipulated that the RAF had to pay the applicant within
fourteen days. The payment date was 9 February 2026. The RAF did not
make the payment.
c. On 11 February 2026, a writ of execution was obtained for the attachment
of the immovable goods of the RAF and for the sheriff to search for
attachable incorporeal goods at FRB. In the writ , it was s tated “ [p]lease
sheriff demand and collect the money due and owed from the interested
parties…….Please follow the peremptory executory processes set-out in
Rule 45 of the Uniform Rules of Court .” It was requested to pay the sums
due into the account of the attorney of the applicant, Mr Malatji S
Attorneys. Further, the sheriff should give notice to FRB to provide bank
statements of the execution debtor , the RAF, in the case that it is stated
that there are insufficient funds in the bank accounts.
d. On 17 February 2026 , the sheriff executed the writ at the offices of the
RAF. Insufficient moveable goods w ere pointed to satisfy the writ . The
notice of attachment of the Sheriff Centurion East, is also dated 17
February 2026 and purports to be a notice of attachment in terms of High
Court Rule 45(8) and 12(a).
e. On 19 February 2026, the writ of execution , obtained on 11 February
2026, was served on FRB attaching incorporeal goods in the form of the
bank account s which the RAF held with FRB . FRB indicated that there
were insufficient funds available to satisfy the writ. The return of the sheriff
indicating what was attached at First National Bank Ltd (FNB), stated that
an attachment was made in terms of Rule 45(8) (c) of the High Court Act
(sic) in respect of money kept on behalf of the debtor in various accounts.
It should be mentioned that the return did not mention a garnishee order .
It was disputed before this court whether a garnishee attachment occurred
simultaneously.
f. On the same day, 19 February 2026, FNB informed the deputy sheriff per
simultaneously.
f. On the same day, 19 February 2026, FNB informed the deputy sheriff per
email that there were no funds in the accounts to satisfy the judgment
debt and that the accounts had a R0.00 balance.
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g. On 20 February 2026, the applicant’s attorney addressed an email to FNB
indicating it and its FRB directors failed to comply with the writ of
execution and court order. These parties were threatened with an urgent
court application “to compel the release of RAF bank statements and
release of the monies attached.”
h. On 2 March 2026, a further Notice of Attachment was issued by the
sheriff. The reason for this was to correct the reference to the applicable
High Court.
i. On the same date, the RAF served an urgent application to stay the writ of
execution on the applicant. The application is not opposed at this stage
and is set down for hearing on 14 May 2026.
j. On 4 March 2026, an email was sent by Mr. Malatji to FNB , where it was
stated that “ First Rand Bank and its directors have failed to release the
attached monies.” Further, that the executor creditor would approach the
court to enforce payment . The urgent application was attached to the
email. It was stated that it would be served shortly.
k. On 4 March 2026, Mr Malatji enquired from the sheriff if he had received
payment. The sheriff confirmed on 6 March 2026 that no payment was
received.
l. On 6 March 2026, Mr. Malatji addressed an email to Ms. Waleca, a senior
legal advisor of FNB , and recorded that FNB has failed to release the
attached monies. In this regard, it should be noted at this stage already
that an attachment in terms of Rule 45(8)(c) does not create an obligation
for the release of attached monies. A judgment creditor enjoys no such
competence under Rule 45(8) and is not entitled to call for any payment.
Instead, the attached incorporeal right will have to be sold in execution.
m. On 9 March 2026, this application was served on the respondents, without
a founding affidavit . FRB and its directors replied in writing , denying that
the email constituted proper service. The respondents were required to
file their notice of intention to oppose on 10 March 2026 and file
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answering affidavits on 12 March 2026. No provision was made in the
notice of motion for the filing of a replying affidavit. The matter was set
down for Tuesday, the 17th of March 2026.
n. On 10 March 2026 , FRB and its directors filed a notice of intention to
defend and, at 20h50 on 12 March 2026, filed an answering affidavit.
o. On the same date, the RAF issued and served an application for the
rescission o f the default judgment obtained by the applicant against the
RAF. This matter is also set down for hearing on 14 May 2026.
p. On 12 March 2026, a return of service of a writ served on the RAF was
uploaded onto Caselines.
q. On 13 March 2026, the RAF filed a notice to oppose the application.
r. On 16 March 2026, a confirmatory affidavit deposed to by the applicant ,
the mother of the injured minor child , was uploaded onto Case lines. On
the same date , a replying affidavit was filed in reply to the answering
affidavit of FRB, and its directors. (the first replying affidavit)
s. On 17 March 2026, when the matter was called, there was still no affidavit
filed on behalf of the RAF. Attached to this affidavit is an application filed
by the RAF on 5 March 2026 for rescission of the court order against the
RAF. This application is set down for 14 May 2026. Further attached was
an application filed by the RAF to stay execution pending the rescission
application, which is also set down for hearing on 14 May 2026.
t. On 19 March 2026, on Thursday during the week when urgent
applications were heard , the RAF filed an answering affidavit . On the
same date, the applicant filed a document referred to as “ MINOR S[...]
M[...]’S EDUCATIONAL PSYCHOLOGIST EVIDENCE AND ITS
AFFIDAVIT IN TERMS OF SECTION 16 AND 34 OF THE CIVIL
PROCEEDINGS EVIDENCE ACT” . An affidavit from a n Educational
Psychologist, Ms. Orit Grossman, dated 18 January 2026, was filed.
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u. On 19 March 2026, at 17h53, which is after court hours, a second replying
affidavit was uploaded onto Case lines, in reply to the RAF’s answering
affidavit.
v. The matter was heard by this court on Friday, 20 March 2026.
[4] The applicant asserted that the urgency of the matter was founded on two
grounds, in the first instance, the case relates to the best interest of a minor
child. The child must be registered a t a special private school , Nova Special
School (Nova), before the end of March 2 026, due to his traumatic brain and
head injuries . Monies are urgently required to cover registration fees, study
fees, and accommodation to secure admission at Nova. Nova was not prepared
to accept a n undertaking to make payment from the R AF, because these
undertakings are not made good. The applicant , as the parent of the minor
child, cannot pay the approximately R120,000 required for 2026. The applicant
stated that if this application were filed in the ordinary course, the matter would
likely have been heard only in September 2026. In such a case, the child would
not receive substantial redress at the hearing in due course, as school time
would have been lost.
[5] Reference was made to the Children's Act and the Constitution, more
specifically, because the child's best interest is categorized as being of
paramount importance in every matter concerning a child in terms of Section 28
(2) of the Constitution.
[6] The second consideration for establishing urgency was non-compliance with a
court order. It was stated that the conduct of the FRB directors posed a serious
threat to public trust in, and respect for, the authority of the courts, and that the
rule of law requires this court to intervene and assert its authority without delay.
[7] FRB and the directors opposed the urgency of the matter , pointing out that the
application was not so urgent as to warrant ignoring the Thursday -for-Tuesday
rule. They were only afforded 2 days to file an answering affidavit. Considering
rule. They were only afforded 2 days to file an answering affidavit. Considering
that the applicant could not have claimed for the payment of monies from FNB
and the FRB directors , no urgency was established as far as these parties are
concerned.
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[8] In defence of the relief sought against FRB and its directors, they pointed out
that the writ of execution is in material respects fatally defective. It is stated that
the applicant should not have joined FRB and its directors in the application, as
no legal relation has been established between the applicant and them.
[9] The RAF argued that the application was premature , as it had filed an
application for a stay of the writ of execution in terms of Rule 45A of the
Uniform Rules of the Court. It also filed a rescission application . For this
reason, the current application is not urgent.
[10] The RAF argued that the matter was not urgent. It pointed out that the applicant
premised the urgency of the application on two grounds: (i) the non-compliance
with court orders and judicial attachment deserves any court to hear the matter
on an urgent basis to protect judicial decisions and (ii) the minor child need to
attend a special school before the end of March 2026 and private schools do
not accept RAF undertakings. It was averred in the answering affidavit that the
applicant did not provide any proof of any attempts made to register the minor
or of any alleged refusal by the special school to accept an RAF undertaking,
as contended by the applicant.
[11] It should be noted that on the same date the RAF filed its answering affidavit,
the applicant caused further affidavits regarding the child’s need to be placed at
a special school referred to as Nova to be uploaded onto Case lines. This was
on the Thursday of the urgent week. It is not clear when the applicant expected
the court to read this affidavit, as the matter was to be heard at 10h00 on
Friday, 20 March 2026 . The affidavit was not filed through Court -on-Line, and
no notification was sent to me.
[12] When the urgency of th is matter is considered, the court is well aware that it is
dealing with the best interest of a child . Some urgency is established. The
dealing with the best interest of a child . Some urgency is established. The
question, however, remains as to the degree of urgency of the matter. The
mere fact that the court was dealing with an alleged contempt of court
application does not create the high degree of urgency with which this
application was launched. The allegation that it was of paramount i mportance
that the minor child be placed at Nova special school is also unconvincing. A
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wait of a further week or two before the placement could not have made a big
difference.
[13] In my view, the applicant, through her attorney, Mr. Malatji, overemphasized the
degree of urgency. By 4 March 2026, the applicant had already decided to
launch an urgent application. Yet this application (without a founding affidavit)
was emailed to the respondents on 9 March 2026 . The applicant took
substantially more time to draft the application than the time allowed for the
respondents to file answering affidavits. The 2-day timeframe afforded to the
respondents was far too short , given the urgency of this matter . Moreover, the
deadline provided by the applicant was noon on T hursday, 2026, before
Tuesday, 17 February 2026 , the date of the set down. As the applicant was
going to reply to the two answering affidavits (as she subsequently did ), the
application was incomplete by Thursday noon. When the matter was called at
the roll call on Tuesday, the matter was far from ready to be heard . It was only
on Thursday that the RAF filed its answering affidavit. It applied for condonation
in the affidavit. The applicant continued to upload additional documents
throughout the week. Heads of argument were also filed on the date of the set
down.
[14] All of this could have been avoided if reasonable timelines had been afforded to
the respondents . This could have been achieved in two ways . First, if the
applicant filed its application one week earlier to be heard on 17 March 2026, or
second, if the application was set down one week later. This would have
afforded the parties, including the applicant, the opportunity to file all the
affidavits, resulting in a complete application ready for hearing.
[15] By stating this , the court does not find that the matter was of high urgency.
Certainly not, as far as FRB and its directors are concerned . The entire
application against them is premised on an incorrect assumption that, after the
application against them is premised on an incorrect assumption that, after the
contested attachment, the judgment debt should have been paid directly to the
judgment creditor. If this proposition is wrong in law , the urgency would fall
away. Even if this were the position and the payment was wrongly refused, the
contempt proceedings were not urgent.
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[16] The Practice Directive 9.23 deals with urgent applications. It specifically
provides that deviation from time periods prescribed in the rules of court must
be strictly commensurate with the urgency of the matter as set out in the
founding affidavit. The case of urgency cannot be made out in a replying
affidavit or by filing further affidavits during an urgent week. This is what Mr.
Malatji did.
[17] I find that the applicant, through her attorney, who was clearly the decision
maker in this application, brought the application to the urgent court without
establishing the high degree of urgency req uired to allow affidavits to be filed
during the urgent week.
[18] For this reason , the matter stands to be struck from the roll for the lack of the
required urgency.
[19] As far as costs are concerned , FRB and its directors requested this court to
make a cost order de bonis propriis against Mr. Malatji. As I have not decided
the merits of the application , I do not intend to make such an order. This can
stand over for a later decision. I am only going to make a cost order relating to
the wasted cost occasioned by the filing of the urgent application in this court.
[20] The order of this court is as follows:
a. The application is struck off the roll for lack of urgency.
b. The applicant to pay the wasted cost occasioned by the filing of this
application on Scale C.
___________________________
R. STRYDOM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Heard on: 17 & 20 March 2026
Delivered on: 30 March 2026
Appearances:
For the Applicant: Adv. T. Moloi
Instructed by: Malatji S Attorneys
For the 1st to 11th Respondents: Adv. N. Konstantinides SC
Instructed by: Van Hulsteyns Attorneys
For the 12th Respondent: Adv. M. Mogano
Instructed by: State Attorney – Johannesburg