SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2023/031959
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 27/03/2026
SIGNATURE
In the urgent application between:
MERCY MMALEHLOHONOLO MOKGOLO Applicant
and
NEDBANK LIMITED Respondent
JUDGMENT ON APPLICATION FOR RECUSAL
WENTZEL-THOMPSON J:
Introduction
[1] This is an application for my recusal from urgent proceedings brought by the
applicant Ms. Mercy Mokgolo (“Mokgolo”) to interdict the Respondent, Nedbank
Limited (“Nedbank”), from repossessing a 2012 Nissan Juke motor vehicle
(“the motor vehicle ”) pursuant to a summary judgment granted against her .
The applicant had purchased the vehicle during 2017 through Nedbank with
whom she had entered into an instalment sale agreement that was cancelled
due to non-payment.
[2] In the proceedings before me, t he respondent brought a counter-application for
the immediate return of th e motor vehicle to it for safekeeping pending the
outcome of the two applications for rescission brought by the applicant.
[3] The first such application for rescission concerns the summary judgment that
had been granted by D'Oliveira AJ against the applicant on 3 September 2025.
[4] As an application for rescission of a judgment does not automatically suspend
execution of the judgment, the applicant brought an application for a stay of
execution pending the outcome of her application to rescind D’Ol iveira AJ’s
judgment. This application was heard by Reid J, who delivered judgment on 19
November 2025 refusing to grant an interdict to prevent the execution of the
summary judgment.
[5] In the result, the respondent became entitled to apply for a writ of execution on
the basis of the summary judgment.
[6] On acquiring knowledge of Reid J’s judgment, the applicant also sought
rescission of that judgment . This is the second pending application for
rescission.
[7] Again, knowing that the application for the rescission of Reid’s judgment would
not preclude the respondent from seeking a writ of execution pursuant to
D’Oliveira’s judgment, the applicant brought an urgent application to stay
execution of the D’Oliviera judgment pending the outcome of her applications
for rescission of the D’Oliveira and Reid judgments.
[8] It is this application that was allocated to me whilst I was sitting in the urgent
court during the week commencing 12 January 2026. During the course of
these proceedings, the applicant sought my recusal, I believe to prevent my
continuing to hear the proceedings and the risk of my making an adverse ruling.
[9] In order to properly understand the manner in which I dealt with the matter
before me , it is important to have regard to the chronology of events , the
findings made by D’Oliveira AJ and Reid J and what transpired in the
proceedings before me that prompted the applicant to bring an application for
my recusal. This will explain the reasonableness of my actions and the stance I
took in dealing with the applicant’s application.
[10] It will also demonstrate incontrovertibly that the applicant has no grounds
whatsoever to seek my recusal and that her application is an abuse of process
designed to avoid the possibility of my granting the responden t’s counter-
application.
[11] In this application, the respondent allege s that it remained the owner of the
motor-vehicle and required to preserve its asset that was its only security for
the applicant’s outstanding and ever-increasing indebtedness. The respondent
thus sought an order that the applicant deliver the motor -vehicle to it for safe -
keeping pending the outcome of both of her pending rescission applications
that have substantially delayed the matter and prevented the applicant from
executing on the basis of the summary judgment granted in its favour in
September 2023.
The chronology of events
[12] The dispute between the parties has a lengthy history, commencing in 2017.
The material events are as follows:
a. During December 2017, the parties concluded a written instalment sale
agreement in terms of which the applicant purchased the motor vehicle
from the respondent. The agreement provided that ownership would
remain with the respondent until all amounts were paid in full.
b. The last payment made by the applicant under the instalment sale
agreement was in November 2022 , and even then she only paid an
amount of R1000, well below the amount of her required instalment.
c. During March 2023 , the Respondent dispatched a notice of breach in
terms of section 129 of the National Credit Act 34 of 2005 ( “the NCA”) to
the Applicant's chosen domicilium address, being 6[...] J[...] Avenue,
Brakpan. It also dispatched a notice of termination of the debt review
proceedings in terms of section 86(10) of the NCA.
d. On 4 May 2023, the respondent served a combined summons on the
applicant, claiming cancellation of the agreement and return of the
vehicle. On 15 May 2023, the applicant entered a notice of intention to
defend and on 7 June 2023, the applicant served a notice of application to
strike out the summons, being her first procedural challenge to the
respondent's claim for payment and repossession of the motor vehicle.
e. On 28 June 2023, after a notice of bar had been served on the applicant,
she withdrew her strike-out application and filed a plea and counterclaim.
In her plea, she raised, inter alia , the defence that the statutory section
129 notice had been sent to the incorrect address.
f. On 17 July 2023, the respondent applied for summary judgment. On 27
July 2023, the applicant served a notice of irregular step, alleging that the
summary judgment application was premature. On 4 September 2023, the
applicant served an affidavit opposing summary judgment.
g. On 4 June 2025, the summary judgment application was argued before
D'Oliveira AJ and on 3 September 2025, D'Oliveira AJ granted summary
judgment in favour of the respondent.
h. On 5 September 2025, the applicant launched an urgent application to
stay execution of the summary judgment pending a rescission application.
This was enrolled on 16 October 2025 and heard by Reid J.
i. On 22 September 2025, the applicant filed a rescission application
seeking to rescind the summary judgment granted by D ’Oliveira AJ of 3
September 2025.
j. On 19 November 2025: Reid J dismissed the applicant's urgent
application to stay execution with costs.
k. On 9 December 2025, the applicant brought an ex parte application to
stay the issuing of a writ of execution and attachment pending the
outcome of Reid J’s judgment that had been reserved . It seems that the
applicant was informed that the matter could not be brought ex parte and
needed to be served on the respondent.
l. On 15 December 2025, the Applicant served an urgent application in
similar terms on the respondent’s attorney, later advising him to disregard
it due to fact that she had been informed that Reid J had already delivered
his judgment on 19 December 2025 . The Applicant takes issue with this
as it was not uploaded onto Caselines at the time that it was stated that
the judgment was delivered . In fact, this judgment was only uploaded on
11 December 2025.
m. On 17 December 2025 , the respondent’s attorney sent an email to the
applicant explaining that she could not simply ignore her 15 December
2025 application and advising her that it was necessary for her to
withdraw her 15 December 2025 application.
n. At the same time, the respondent’s attorney impressed upon the applicant
that the court was in recess and their offices were closing on 19
December 2025 and only opening on 6 January 2025 . The applicant was
also informed that the Sheriff’s Office was already closed and would also
only be re-opening on 6 January 2025 and thus no writ in execution could
be obtained by the respondent before then. This was said to dissuade the
applicant from serving yet another urgent application over th e Christmas
holiday period.
o. This did not deter the applicant as on 1 8 December 2025, she filed the
current urgent application, seeking:
Part A: An interim stay of execution of both the 3 September 2025 and 19
November 2025 judgments, and an interdict restraining the Respondent
and the Sheriff from attaching the vehicle.
Part B: Rescission of the 19 November 2025 Reid judgment, leave to
supplement her pending rescission application in respect of the 3
September 2025 D’Oliveira judgment, and consolidation of both rescission
applications.
p. On 21 December 2025, the respondent filed a notice in terms of Rule
6(5)(d)(iii) in which a plea of lis pendens was raised on the basis that the
applicant had raised the same issues in her 19 December 2025 urgent
application that served before me that had already been raised before
Reid J, in her 9 December 2025 urgent ex parte application and in her 15
December 2025 urgent application , the latter of which had not been
withdrawn by the Applicant.
q. The respondent also pleaded that the issues the applicant wished to have
determined in the proceedings before me were res judicata and had been
determined by Reid J. Apart from non-joinder issues raised that I need not
canvass, the respondent alleged that the relief sought was irregular as it
was in effect an appeal of the judgment of Reid J (which had not been
applied for or granted) and no basis had been laid for its rescission.
r. On 22 December 2025, the applicant served notices in terms of Rule
30(2)(b) and Rule 30A seeking to set aside the Rule 6(5)(d)(iii) notice that
had been served by the respondent, claiming that it had belatedly been
served and moreover, had been served on her via email that was not
permitted as she had not consented to this . She thus sought to have the
respondents Rule 6(5)(d)(iii) notice struck out as an irregular step.
s. On 13 January 2026, the matter was set down for hearing in the urgent
court.
t. The matter was heard by me on 15 January 2026, then stood down to 16
January 2026 to allow the respondent’s attorney to address serious issues
raised by the applicant dealt with by me below.
u. On 16 January 2026 I continued to hear the application and stood it down
again for continued hearing on Monday 19 January to allow the applicant
time to file an answer to the respondent’s attorney’s affidavit and to
answer the respondent’s counter -application that I put the applicant on
terms to file by 17h00 on Sunday 18 January 2026.
v. On Sunday 18 January 2026 the applicant filed an answer to the
respondent’s attorney’s affidavit under protest . At the same time, the
applicant brought an application for my recusal under the circumstances
dealt with fully by me below.
The findings made by D’Oliveira AJ and Reid J
[13] Before dealing with the proceedings before me, it is necessary that I refer to the
findings made by D’ Oliveira AJ and Reid J as I had regard to both judgments
when preparing for the matter before me , both of which coloured the stance
taken by me in the proceedings before me . Both judges bemoaned the
applicant’s continued possession and use of the motor vehicle that she had not
paid for since November 2022- a period now in excess of three years.
[14] In his judgment, D’Oliveira AJ dealt with the dilatory defences raised by the
applicant (respondent in the application for summary judgment) and were
relevant to the res judicata defence raised by the respondent in the
proceedings before me. D’Oliveira stated:
“14. The only defences to the plaintiff's claim contained in the plea and
affidavit opposing summary judgment were dilatory defences. The
defendant pleaded that she did not receive the notice of breach or the
section 86(10) notice terminating debt review prior to the service of the
summons.
15. The defendant pointed out that while it may be true that her domicilium
citandi et executandi and her residential address is 6[...] J[...] Avenue,
citandi et executandi and her residential address is 6[...] J[...] Avenue,
Brakpan, and while it may be true that the plaintiff despatched both the
notice of breach and the 86(10) notice to this address, the "tracking
slip" of the Post Office shows that the Post Office delivered the postage
slip to the wrong address. The postage slip recorded the address as
1[...] J[...] Avenue, Brakpan, not 6[...] J[...] Avenue, Brakpan.
16. The question is whether this mistake on the part of Post Office implies
that summary judgment should be refused, and the matter should be
referred to trial.
17. In my view, the answer to the question is no.
18. Clause 12.1 of the agreement regulates the giving and receiving of
legal notices for the purposes of the agreement. It provides as follows:
"You will be deemed to have received any notice from us within 7
(seven) Business Days after we have sent the notice to your chosen
address by post .... You agree that registered mail will be used for
delivery of legal notices to you."
19. In terms of clause 12.1, any legal notices sent to the defendant's
chosen address by registered mail are deemed to have been received
within seven business days, whether the legal notices have in fact
been received or not.
20. The defendant agreed to this deeming provision. She also agreed that
registered mail may be used for the delivery of any legal notice. She
therefore agreed to bear the risk of the Post Office failing to actually
deliver a legal notice sent by the plaintiff to the correct address.
21. The notice of breach and the section 86(10) notice are both legal
notices. It is not disputed that the plaintiff duly sent both the notice of
breach, and the section 86(10) notice, by registered post to 6[...] J[...]
Avenue, Brakpan. It was the Post Office that apparently captured the
address incorrectly, and apparently dispatched the postage slips to
1[...] J[...] Avenue, Brakpan.
22. In terms of clause 12.1 of the agreement, the risk of this error is born
by the defendant. Notwithstanding the error, the notices were deemed
to be delivered within 7 business days of having been sent. The plaintiff
was therefore entitled to cancel the agreement and claim recovery of
was therefore entitled to cancel the agreement and claim recovery of
the Nissan after the lapse of 10 days.
23. Another difficulty for the defendant in relying on the defence that she
did not receive the section 86(1 0) notice, is section 130(4)(b) of the
Act.
24. In terms of section 130(4)(b) of the Act, the failure of a plaintiff to
deliver a notice in terms of 129(1) or 86(10) of the Act, does not mean
that the credit agreement may not be enforced in such proceedings.
25. Section 130(4)(b) of the Act provides that if the Court determines that a
notice in terms of sections 129(1) or 86(10) of the Act was not
delivered, the Court must, in those circumstances, adjourn the matter
before it and make an appropriate order setting out the steps the credit
provider must complete before the matter may be resumed.
26. Therefore, even if the plaintiff had failed to deliver a notice in terms of
section 129 or 86(10) of the Act, it would not mean that the plaintiff's
claim falls to be dismissed. Rather, section 130(4)(b) of the Act would
come into operation.
27. But in this instance, a notice in terms of section 86(10) of the Act was
delivered. In this regard, it is clear that the defendant received both the
notice of breach and the section 86(10) notice by the latest 4 May
2023. It is also not disputed that the section 86(10) notice was duly
delivered to the defendant's debt counsellor and the National Credit
Regulator on or about 6 March 2023.
28. Since the defendant was under debt review at the time that the section
86(10) notice was delivered, there was no obligation on the plaintiff to
also deliver a notice in terms of section 129(1) of the Act.
29. Finally, despite that she had received both the notice of breach, and
the section 86(10) notice, by 4 May 2023 at the latest, the defendant
failed to remedy her breach. She also failed to make any attempt to
compromise with the plaintiff, or reinstate the credit agreement, or
otherwise resolve her admitted default under the agreement.
30. Instead, the defendant elected to persist in her default. She elected not
to voluntarily surrender the vehicle to the plaintiff. She continued to use
and enjoy the Nissan despite knowing that it belonged to the plaintiff
and that she was not paying for the vehicle or its use. In so doing, the
defendant took advantage of the inherent delay in legal proceedings to
hold onto the plaintiff's motor vehicle for as long as possible without
paying for it.
31. In this regard, the defendant, who appeared in person at the hearing,
confirmed that she has not made any payment towards the reduction of
the amount owed to the plaintiff since the delivery of the summons on 4
May 2023.
the amount owed to the plaintiff since the delivery of the summons on 4
May 2023.
32. The result of the defendant's election to persist in her default is:
32.1 The agreement ran to completion on 25 December 2023, which
was the date the defendant should have paid the last instalment.
32.2 The credit agreement cannot be reinstated by payment of arrears.
32.3 The amount owed by the defendant to the plaintiff has increased
from R141 946.66, at the date of service of combined summons,
to R171 278.361, at the date of the hearing. The amount owed will
continue to increase with the aggregation of interest at a
compound rate of 14.3%.
33. In the circumstances:
33.1 There is no dispute that the defendant owes the plaintiff R141
946.66, plus interest at a compound rate of 14.3% from date of
summons to date of final payment.
33.2 There is no dispute that the defendant defaulted on payment.
33.3 There is no dispute that the defendant persistent in her default, for
over two years, despite receiving the plaintiff notice of breach and
notice in terms of section 86(10) of the Act.
33.4 There is no dispute that the plaintiff is and remains the owner of
the Nissan, because the defendant has not paid for it in terms of
the agreement or at all.
33.5 There is no dispute that the agreement has been terminated,
either because the pla intiff cancelled the agreement or by
effluxion of time.”
[15] In her judgment, Reid J referred to these findings made by D’Oliveira AJ and
noted that:
“[10] The applicant has confirmed that the last payment made by herself to
the respondent, was on 1 November 2022 in the amount of
approximately R1,000. In the instalment agreement the parties agreed
to payment of approximately R14,000 per month. At this stage the
outstanding amount is approximately R185,000 and it is increasing
every month.
…
[12] The applicant admits that she remains in arrears and has failed t o
honour the debt.”
[16] Reid J emphasised that in considering whether to grant a stay of execution, the
applicant must establish that “ irreparable harm will result if execution is not
stayed and the applicant ultimately succeeds in establishing a clear right.”
[17] Reid J went on to say:
“[14] In casu, the applicant does not have a clear right to possess, or
prevent execution of a summary judgment, where the clear right of
ownership of the vehicle lies with the respondent in terms of the
agreement. Only after the debt has been paid in full, the vehicle will
become the property of the applicant. In terms of the agreement
this was supposed to have happened in 2023.
[15] The instalment agreement has been terminated by the failure of
[15] The instalment agreement has been terminated by the failure of
the applicant to pay the monthly payment, and the termination
of the agreement has been accepted by the respondent.
[16] The applicant has no clear right to possession of the vehicle in
the absence of ownership. The balance of convenience favours
the respondent: should the execution be stayed, the arrears
amount will increase. This would be to the prejudice of not only the
respondent, but also the applicant.
[17] As such, I find that the application cannot succeed.”
[18] The respondent’s counsel asked that Reid J dismiss the matter on the merits
and not merely strike the matter from the roll for lack of urgency, which Reid J
did. In this regard Reid J stated:
“[19] In the circumstances of this matter, I agree with the respondent that a
postponement will delay the inevitable. In addition, the arrear amount
will increase to the prejudice of both parties. This would not be in the
interest of justice.
[20] As such, I deem it appropriate that the application be dismissed rather
than being struck from the roll.”
[19] Both learned judges were accordingly of the view that the applicant had no right
to continue to possess the motor vehicle as the instalment sale agreement had
been cancelled and/or had ended through the effluxion of time.
[20] As indicated above, t he applicant has sought the rescission of both of these
judgments.
[21] It is against this background that I heard the applicant’s applicatio n and
conducted the proceedings before me.
The proceedings before me
[22] It is important to note that I heard all of the urgent applications before me during
the week commencing 12 January 2026 virtually via Microsoft Teams
(“Teams”).
[23] The matter was first enrolled for hearing on 13 January 2026 and was stood
down until 15 January 2026 at the request of the applicant.
[24] At the commencement of my hearing of the matter on 15 January 2026, the
applicant asked for a postponement that I refused as there were insufficient
grounds advanced for a postponement and she had set the matter down in the
urgent court. Obviously, where a litigant sets down an applic ation in the urgent
court, seeking a postponement negates the urgency.
[25] In the answering affidavit to the applicant’s application for my recusal , the
respondent’s attorney states that applicant was present when I was hearing
other urgent matters on 13 January 2026 and had witnessed that parties,
including a lay litigant, were asked pertinent questions at the heart of the issues
before me . The respondent’s attorney surmises that from the outset the
applicant wished to avoid having her application heard by me as she wished to
avoid difficult questions being raised by me .1 And indeed difficult questions
were raised by me.
[26] When the matter again came before me on 15 January 2026, I commenced by
asking the applicant on what basis she believed that she was entitled to retain
possession of the motor vehicle that she had not paid for since November
2022. The applicant did not answer this question . Instead she continued
addressing me on numerous technical issues and complaints that she had
concerning the current proceedings.
[27] I then asked the applicant how she , as a lay litigant , gained her knowledge of
the law as she had raised numerous objections based not only on the Rules of
Court and Practice Directives, but also on case law . She told me she had
studied the Rules of Court and the Practice Directives.
[28] Hereafter, I proceeded to ask the applicant to tell me in her own words what her
complaints were that she had raised in her Rule 30 notice . Instead of doing so,
applicant disputed that I had authority to hear the matter as her examination of
the audit trail on Caselines indicated that I was using a domain that reflected
my @ counsel address.
[29] I explained to the applicant that I had been newly appointed as a judge and had
been asked by the Acting Deputy Judge President of the division to sit in the
been asked by the Acting Deputy Judge President of the division to sit in the
urgent court the week before term commenced on 19 January 2026. I had thus
1 AA review application p55-3 paras 11.1-11.2.1--3
not had an opportunity to meet with the Information Technology (“IT”)
Department to assign me an @judiciary address which I hoped to do after the
recess.
[30] The applicant insisted this was an irregularity and wanted confirmation of my
@judiciary email. The applicant argued that this impinged upon her right to a
fair trial as she said that “the integrity of the profile is completely compromised ”
and that my @counsel email address was not “officially recognised.” She asked
that the matter be postponed until Monday 19 January 2026 as that was when I
had indicated I would be able to obtain an @judiciary address. I declined to do
so and explained that acting judges frequently hear matters online and do not
have @judiciary addresses as they are not permanent judges.
[31] The applicant then dealt with the Rule 30 notice she had served in response to
the first respondent’s counter-application that she indicated had been belatedly
served on her via email and thus was both out of time and invalid as she had
not consented to service via email. I indicated that the applicant had obviously
seen the counter-application as she had filed a Rule 30 notice in response to it.
The applicant claimed not to have received the email and stated she only
became aware of it when she had seen the counter-application on Caselines.
[32] I pointed out that this was the urgent court, and that I was permitted to
dispense with the Rules regarding service and allow truncated time periods .
She then insisted on placing it on record that she had not received the notice
and argued that there was a difference between knowledge and service in
terms of the Rules.
[33] I indicated that I was not interested in procedural points and wanted to deal
with the real issues and that the courts frequently condone non-compliance with
the Rules, particularly in the urgent court , particularly where there was no
prejudice. There was no prejudice to the respondent as she had knowledge of
prejudice. There was no prejudice to the respondent as she had knowledge of
the counter-claim and had responded to it.
[34] The applicant, however, insisted she was prejudiced as the counter -application
had been served the day before the matter was set down for hearing, giving her
not time to prepare documents. She claimed this amounted to a “ trial by
ambush”. She pointed out that she had served her application on 18 December
2025 and yet, the counter -application was only served via email the day before
the matter was due to be heard and not allowing her a fair time to prepare.
While I agree that the counter -application was belatedly served, I pointed out
again to the applicant that she had in fact responded by filing a Rule 30 notice.
[35] The applicant then informed me that she objected to “ unauthorised system
access and data interference and no n-compliance with mandatory digital
directives in the proper constitution of the court ,” and thus persisted in
challenging my authority to hear the matter. At this point she did not expand
upon what she referred to as “unauthorised system access”, “data interference”
and “mandatory digital directives”.
[36] An issue then brought to my attention by the applicant was that although the
judgment of Reid J was dated 19 November 2025, it was only uploaded onto
Caselines on 11 December 2025. She indicated that she only became aware
that the judgment had been delivered after she had brought her ex parte
application referred to above. The applicant was suspicious about how this
could have occurred as the judge ’s registrar was obliged to upload the
judgment once it was completed.
[37] I queried whether the matter before me had not already been decided by Reid J
and referred the parties to paragraph 17 of Reid’s judgment stating that the
applicant’s application for a stay of execution could not succeed as the
applicant had no clear right to be in possession of the motor vehicle as the
credit agreement had been cancelled and had ended by the effluxion of time as
set out above.
[38] The applicant then raised what appeared to me to be a serious issue , namely
that after the delivery of Reid J’s judgment, the respondent’s attorney had
applied to the registrar for a writ of attachment , supported by a judgment by
Mzuzu J and not that granted by D’Ol iveira AJ, who had granted summa ry
Mzuzu J and not that granted by D’Ol iveira AJ, who had granted summa ry
judgment against the applicant.
[39] I felt that this was a legitimate complaint that should be immediately addressed
by the Respondent’s attorney and stood the matter down to allow the
respondent’s attorney to provide an explanation on oath.
[40] Another issue raised by the applicant was that the respondent’s attorney had
sent her an email on 18 December 2026 indicating that the court was in recess
over December 2025 until early January 2026 dealt with by me already above .
This email was in response to the a pplicant’s statement that the Respondent’s
attorney should disregard her 15 December 2025 urgent interdict application as
it had been pointed out to the applicant after she had brought the application
that, unbeknown to the applicant , Reid J had already delivered his judment .
The respondent’s attorney reasonably anticipated that the applicant would bring
a further application to interdict the attachment of the motor vehicle pending her
application to rescind this judgment.
[41] The applicant’s complaint was that the email providing comfort to her that there
was no possibility that a writ of attachment could be executed before 6 January
2026 as the Sheriff’s Office was already closed and would not reopen until this
date was misleading; this was because at the time of writing this email, the
respondent’s attorney had on her own version a lready applied to the registrar
for a writ of attachment . This had been applied for in late November 202 5 I
agreed that t his was an issue that also required explanation and thus directed
that it should be addressed b y the respondent’s attorney in the affidavit I had
requested she provide.
[42] I perused the affidavit from the respondent’s attorney who in my view had
satisfactorily addressed the concerns raised by the applicant. When I tried to
take the applicant through the affidavit, she objected to the fact that it had not
been uploaded on Court -Online and had only been uploaded on Caselines. I
been uploaded on Court -Online and had only been uploaded on Caselines. I
asked her if she had access to Caselines. She insisted this was not a
technicality but what the law and the directives state and meant that the
affidavit was not properly before the court.
[43] I made it plain to the applicant that a litigant does not control the procedure of
the court; the court controls the procedure of its own court and quoted the oft
quoted statement that “the rules are for the court and not the court for the
rules.” I explained to the applicant that what this ultimatel y meant was that the
court is entitled to have regard to the Rules and determine whether it is just and
fair to have a matter heard even if, as she says, the affidavit was not first
downloaded on Court -Online. I pointed out that there was no prejudice to the
applicant in my considering the affidavit as she had access to it and told me
she had been considering it.
[44] I asked the applicant whether she accepted the explanation provided or if she
wished to respond to the respondent’s attorney’s affidavit. I also pointed out
that the affidavit had been provided in view of the directive given by me the
previous day and this had been in response to the irregularities in the
application for a writ of attachment that I had taken seriously . I explained that
this was the type of objection that I would take seriously but was not prepared
to take the objection currently raised by her in the urgent court that the affidavit
had not also been uploaded on Court-Online seriously.
[45] The applicant indicated that she wished to have an opportunity to file an
opposing affidavit and wanted a fair opportunity in order to do so and again
asked for a postponement . I pointed out to the applicant that she had brought
her application in the urgent court and thus I would only allow a truncated
period for her to answer the affidavit of the respondent’s attorney.
[46] I then referred to the fact that the applicant had asked that all of her pending
applications be consolidated. What I proposed was that the applicant return the
vehicle to the respondent for safekeeping as had been sought by it in the
respondent’s counter-application and be ordered not to proceed with the
execution of a writ , that all of the pending matters brought by the applicant be
consolidated and the registrar be approached to allocate a date when all the
consolidated and the registrar be approached to allocate a date when all the
matters could be heard together. That way, I ex plained, the applicant would
have sufficient time to respond to the respondent’s attorneys affidavit , the
respondent’s counter -claim and file the supplementary affidavits she had
indicated she wished to file in her application for rescission of D’Oliveira AJ’s
judgment; at the same time, the respondent would have their rights protected in
the interim.
[47] It is significant that at this point, the applicant pretended not to be able to hear
me when up until now , she had been able to hear me perfectly. I also stress
that my registrar and counsel for the respondent continued to be able to hear
me. I told the applicant that I did not believe her and if needs be I would go to
court to continue with the proceedings and asked my registrar to please call the
applicant which she did. My registrar asked the applicant whether she could
hear me and she said she could no t, it was “quite faint” and said that “suddenly
the volume was low .” She stated that she had tried to increase the volume on
her side but it was on maximum.
[48] Nevertheless, m y registrar gave the applicant the benefit of the doubt and
suggested to the applicant that she leave the Microsoft Teams platform and
the rejoin it. The applicant did not do this but merely switched her camera on
and off and then stated that she was now able to hear me. She asked that I
repeat what I was saying which I did. I then asked her what she thought of the
proposal that I had made.
[49] The applicant stated that she only wanted time to answer the respondent’s
attorney’s affidavit , implicitly stating she did not want time to answer to the
respondent’s counter-claim. I thus told her I would refer the matter to the urgent
court on Tuesday 19 January 2026 so that she would have time to respond to
the respondent’s attorney’s affidavit and the counter-application over the
weekend and on Monday 2026. I stated that if the urgent judge was not
prepared to hear all of the consolidated applications together in the urgent
court, in the interim the applicant would have to deliver up the motor vehicle.
[50] The applicant immediately sought clarity as to whether I was affording her time
to reply. She said she wanted “to end it at that before having to look at the
suggestion of having to take the car to the respondent. ” She asked that this be
suggestion of having to take the car to the respondent. ” She asked that this be
something that is done after her replying affidavit had been filed. She then
asked for temporary interim relief pending the reply to the current
“supplementary affidavit, ” referring to the respondent’s attorney’s affidavit.
[51] I then realised I was due to sit in the opposed motion court the following week
and told the applicant that I had changed my mind and would not refer the
matter to the urgent court but keep the matter myself and hear it on Monday 19
January 2026 as I was in the opposed motion court. Part of my motivation for
doing this was because I felt I could not dictate to the urgent court how it should
deal with the matter or burden a very busy urgent court with hearing both the
applicant’s applications for rescission . I realised it would be both improper and
inappropriate for me to do this as I was already seized of the matter. I also
knew that referring the matter to the urgent court the following week would
allow the applicant to avoid having her matter heard by me , which at that stage
I knew she wished to achieve.
[52] Having decided this, I indicated that I intended to direct the applicant to file her
response to the respondent’s attorney’s affidavit and to the respondent’s
counter-claim by 17h00 on Sunday 18 January 2026 and that she should be
prepared to address me on Monday 19 January 2025 on the counter-claim.
[53] The moment I indicated this, the applicant suddenly again pretended not to be
able to hear me and stated that “the volume kept going down.” I again told her I
did not believe her but stated that I would get my registrar to call her again to
explain to her what I was going to do . I asked the respondent’s counsel to
assist me in preparing a draft order in the terms I had indicated and stated that I
would hear the matter in open court on Monday 19 January 2026 to avoid the
issues with the sound the applicant h ad stated she was having again I asked
counsel to share his screen so that the applicant could see the order that I was
making as the applicant was claiming not to be able to hear me. I also
requested my registrar to call the applicant so that she could verbally explain
the order that I was making.
[54] When my registrar called the applicant she asked whether she could hear me .
The applicant said she could hear, but it was “very faint ” and she was “not
The applicant said she could hear, but it was “very faint ” and she was “not
hearing clearly”. I must add that during both times that the applicant claimed not
be able to hear me, she theatrically placed her ear close to her computer
pretending to be trying to hear me. These theatrics were obvious for all to see.
[55] On Sunday 18 January 2026 the applicant filed the affidavit as requested, but
did so under protest as I had ordered her to do so , and at the same time
brought an application for my recusal. This was patently to avoid my hearing
argument on the counter-application brought by the respondent for interim relief
that she feared may be granted by me.
[56] In her recusal application, the applicant disputed my authority to have made the
orders that I made or to continue hearing the merits of the application, by which
she meant the counter-application. In this respect the applicant contended that
she was not obliged to deal with the merits of the counter -application as I was
barred in terms of Constitutional Court authority cited by her from directing that
further affidavits be filed on the merits until I had dealt with her recusal
application.
[57] What the applicant fail ed to recognise is that my directive s that she file her
answer to the counter-application and an answer to the Respondent’s attorneys
affidavit had preceded her recusal application. I, however, accept ed that her
recusal application precluded me dealing further with the merits until I had dealt
with her recusal application and thus when the matter was heard on Monday 19
January 2026, I ruled that I could no longer continue to hear the urgent interdict
proceedings before me and needed first to deal with the applicant’s recusal
application. I provided times for the filing of the answering and replying
affidavits in the application for my recusal that I heard on Friday 23 January
2026, after which I reserved my judgment.
[58] In view of the seriousness of the application for my recusal , I decided to await
the record of the proceedings prior to writing my judgment.
[59] Whilst I have been provided with an official record of the proceedings before
me in hearing the application for my recusal, I have relied upon an unofficial
transcript of the record of the proceedings before me in the u rgent court via
Teams, that I have read together with my manuscript notes of the proceedings.
I have done this as the respondent’s attorney quite understandably enquired
I have done this as the respondent’s attorney quite understandably enquired
when the respondent might expect me to hand down my judgment. I knew that
awaiting an official transcript of these proceedi ngs would serve only to delay
the matter further when I was satisfied that I had sufficient information at my
disposal from my recollection, my notes and the transcript of the Teams
hearings to adequately record what transpired during the hearings.
[60] In saying this, I point out that my record of the events that transpired in the
proceedings before me is in line with that recorded by the respondent’s
attorney’s answering affidavit to the applicant’s application for my recusal
[61] Both in the applicants’ replying affidavit and in her recusal application , she has
made serious allegations of fraud against the respondent ’s attorney. She has
also raised concerns and suspicions of some underlying conspiracy arising
from the fact that Reid J’s order was only belatedly uploaded and from the fact
that the documents on Caselines had not been “ frozen”, allowing the
respondent’s attorney free access to manipulate the documentation, referring in
this respect to the erroneous judgment that was attached to the respondent’s
attorney’s application for a writ of execution.
[62] A further complaint raised by the applicant was that she has noticed that
documents had been uploaded on Caselines and/or Court-Online utilising an
unknown .com domain name instead of one utilised by the Office of the Chief
Justice, which she claimed compromised the integrity of the digital record. The
applicant informed me during the hearing of argument in her recusal application
that she had reported both of the above issues to the Office of the Chief Justice
and the South African Police Services to investigate.
[63] A litigant cannot be allowed to hold a court to ransom by making implicit
threats with no merit. The court commands the proceedings and not the
litigants; postponements are not g ranted simply for the asking and nor are
technical points entertained just because they are taken. I repeatedly explained
to the applicant that the Rules of Court that she persisted on relying on and
holding the respondent to, were for the Court and not the Court for the Rules.
holding the respondent to, were for the Court and not the Court for the Rules.
[64] In this respect I repeat the oft -quoted passage by the Constitutional Court in
Mukaddam2:
2 Mukaddam v Pioneer Foods (Pty) Ltd and Others (CCT
131/12) [2013) ZACC 23; 2013 (5) SA89 (CC)
“[32] It is important that the rules of courts are used as tools to facilitate access
to courts rather than hindering it. Hence rules are made for courts and not that
the courts are established for rules. Therefore, the primary function of the rules
of courts is the attainment of justice. But sometimes circumstances arise which
are not provided for in the rules. The proper course in those circumstances is to
approach the court itself for guidance. After all, in terms of section 173 each
superior court is the master of its process.”
[65] In my view the applicant has insisted upon being regarded as a lay litigant in
the matter before me and in her previous applications to gain the courts
sympathy, assistance and lenience. Although the applicant was a lay litigant,
her utilisation of the Rules of Court to raise technical arguments demonstrates
that she was not the normal lay litigant. This is particularly so as throughout
these proceedings the applicant has not only relied upon and insisted on strict
compliance with the Rules of Court but has cited case authority in her heads of
argument and in her affidavits and supplementary affidavits. This is also
apparent from the content of the respondent’s answering affidavit filed under
protest and her affidavit filed in support of her recusal application.
[66] What transpired in the proceedings before set out above indicate
incontrovertibly that the applicant’s true motive in seeking my recusal is to avoid
the risk of my ordering her to deliver the motor -vehicle to the respondent for
safekeeping. This is an issue I had not decided but had proposed in the
interests of justice and wished the parties to address.
[67] My prima facie view after hearing argument was that the further delay of the
matter was causing the respondent prejudice that I felt may possibly be cured
should the interim relief sought in its counter -claim be granted. I thus wished to
be addressed on this by both parties as it was unclear to me whether such an
be addressed on this by both parties as it was unclear to me whether such an
order was competent whilst the rescission of the summary judgment upon
which attachment was based was still pending . The fact that I wished to be
addressed on this does not mean that I had prejudged the matter ; nor is it
evidence of bias. The counter -application was a matter befo re me that I was
obliged to address.
[68] My proposal that the applicant hand over the vehicle to the respondent for
safekeeping, that I consolidate all the pending applications and then postpone
the matter for a hearing in the normal course seemed to me to be an eminently
sensible solution that would enable the applicant to file whatever further
affidvits and supplementary affidavits she wished to file without any time period
restrictions and, at the same time , preserve the respondent’s asset until both
rescission applications had been decided.
[69] When it became clear that this was a course that I was considering taking, the
applicant abused the court process by pretending not to hear me and then
sought my recusal to avoid the risk of my making an order in the terms that I
had proposed making in the interests of justice. As such , I believe that the
applicant’s application for my recusal was made for an ulterior purpose and is
not genuinely pursued in view of the applicant’s alleged perception of my bias.
In truth and in fact the applicant’s application for my recusal is none other than
a stratagem to prevent me from further hearing and deciding whether to grant
the respondent’s counter-application.
The technical points raised by the Applicant in the prior proceedings
[70] Throughout the various proceedings outlined above, the Applicant has raised a
series of technical and procedural challenges in order to avoid what both
D’Oliveira AJ and Reid J viewed as inevitable , namely the repossession of the
motor vehicle.
[71] The core points raised by the applicant in the prior proceedings can be
summarised as follows:
a. Defective service of the statutory notices:
[72] The applicant has consistently argued that the section 129 notice of breach and
the section 86(10) termination notice were not properly served. She points to
the Post Office's track and trace report, which shows delivery to 1[...] J[...]
Avenue rather than her correct address o which is 6[...] J[...] Avenue. She
Avenue rather than her correct address o which is 6[...] J[...] Avenue. She
submits that this non -compliance with the NCA renders the subsequent
enforcement proceedings and application for summary judgment premature
and unlawful.
[73] In line with this argument, the applicant contends that had the section 129
notice been sent to her, she could have availed herself of debt revue and
extended the period of the contract. I understood her argument in this regard to
be that not only would this have had the effect of reducing the monthly
instalments owing, but the contract period would have been extended such that
the contract would not have ended by the effluxion of time.
b. Defective return of service of the combined summons
[74] The applicant argues that the summary judgment of 3 September 2025 is a
nullity because there is no valid return of service for the combined summons on
the official Court -Online system. She contends that the return of service relied
upon by the respondent is unsigned, undated, and was filed directly on
Caselines (bypassing Court -Online) almost a year after the summons was
purportedly served, in violation of Practice Directive 1 of 2022. She submits that
this defect negates the court’s jurisdiction.
c. Premature summary judgment application
[75] The applicant argued in her opposition to the application for summary judgment
that the application was brought before the pleadings were closed, specifically
before the time for her to respond to the respondent's plea to her counterclaim
had expired, contravening the amended provisions of Rule 32.
d. Incomplete contract
[76] The applicant has raised the point that the copy of the instalment sale
agreement annexed to the particulars of claim was incomplete, missing page 3
of 14, which she alleges contained material terms regarding the condition of the
motor vehicle. She submits that this omission prevented the full ventilation of
her defence and that the deponent to the affidavit in support of summary
judgment could not verify a cause of action based on an incomplete contract.
e. Patent Errors in the 19 November 2025 Judgment
[77] The applicant seeks rescission of the judgment of Reid J, arguing that it
contains patent errors, including references to a “fictional R14,000” instalment
payment obligation and the erroneous statement that the motor vehicle was "at
auction" when it was not and was still in her possession . The applicant also
submits that this judgment was erroneously sought and granted in her
procedural absence.
The complaints raised by the applicant in the proceedings before me
[78] In the proceedings before me , the applicant has escalated her challenges to
allege a sustained pattern of fraud, manipulation of the digital record and abuse
of process by the respondent’s attorney.
[79] The applicant filed a supplementary affidavit from which it is apparent that s he
is not only seeking a stay of execution but asks for more fundamental relief
than that set out in her notice of motion, namely, a referral of the matter to the
Deputy Judge President, a forensic investigation into the court's digital system,
and my recusal. She also informed me that she has reported this issue to the
South African Police Services and the Office of the Chief Justice to investigate.
[80] The applicant has framed the current application as a crisis of integrity within
the High Court's system administration of justice. In doing so she relies heavily
on procedural irregularities and her suspicions about the integrity of the digital
court record . The applicant claims that the integrity of the court's electronic
filing system (Court Online and Caselines) has been compromised, potentially
with the help of court staff. In this respect she states:
a. First that key court orders (the 3 September and 19 November
judgments) were uploaded by an account using a non -governmental
domain ( r[...]). She argues that official court communication is strictly
from @judiciary.org.za or @justice.gov.za. She contends that using
a .com domain is a severe security breach that undermines the
a .com domain is a severe security breach that undermines the
authenticity of the orders and could amount to cybercrime.
b. Second, the applicant claims that her analysis of the audit trail on
CaseLines finds it “dead” during the months of June -August 2025 when
Acting Judge D'Oliveira was deliberating. She argues it is impossible for a
judge to deliberate on a digital record they never accessed, suggesting
the judgment was drafted outside the official system. Similarly, she claims
the 19 November judgment was not uploaded until 11 December 2025,
implying it was back-dated.
c. Third, the applicant accuses the respondent’s attorneys of selective filing ,
alleging that the respondent’s attorneys have violated Practice Directive 1
of 2025 by selectively filing documents on Caselines only, which she
claims makes them invisible to the judge's official bundle, creating a
"ghost record" and misleading the court.
d. Fourth the applicant maintains that she is dominus litis and controls her
own filings. Despite this , the applicant complains that the respondent ’s
attorney filed documents on her behalf and thereby interfered with the
court record. In this respect, the applicant refers to the references to “ S
Minolta” in the audit trail who she says is a reference to the respondent’s
attorney. She characterises this as a fundamental procedural violation that
she says amounts to fraud on the court.
e. Fifth, the applicant accuses the respondent’s attorney of hiding the
defective return of service.
f. Sixth, she accuses the applicant’s attorney of fraudulently a ttempting to
execute a writ based on an unsigned draft order by Mzuzu J , instead of
that of D'Oliveira AJ.
g. Finally she accuses the respondent’s attorney of misleading her when she
assured the applicant that it would not be possible for the respondent to
obtain a writ of attachment before 6 January 2026 when the respondent
attorney had already applied for a writ of attachment before the Sheriff’s
offices had closed for the holiday.
[81] Whilst I had regard to the applicant’s arguments on some of these points, I had
not yet heard full argument on them before the application for my recusal was
brought. I do not intend to pre -judge these arguments and have purposefully
not dealt with them. They are also not relevant to her application for my recusal.
The test to be applied in applications for recusal
[82] The test for recusal is well -established in our law. It is an objective test and not
a subjective one. This means that the fact that the applicant may perceive that I
am biased is not relevant. The Constitutional Court explained in President of
the Republic of South Africa and Others v South African Rugby Football Union
and Others 3 the question is not whether the judge is in fact biased, but whether
a reasonable, objective and informed person, with knowledge of all the relevant
circumstances, would reasonably apprehend that the judge might not bring an
impartial mind to bear on the adjudication of the case. The onus of establishing
such an apprehension rests on the applicant.
[83] There is a presumption of impartiality. In Bernert and Others v Absa Bank Ltd4
it was held that a judge is presumed to be impartial, and a court should be slow
to accede to an application for recusal, lest it open the door for litigants to seek
a judge they perceive to be more favourable to their cause. A recusal
application must be based on substantial and reasonable grounds, not on a
litigant's subjective fears or dissatisfaction with previous rulings.
[84] The Constitutional Court explained the basis for the presumption of impartiality
thus:
“[31] What must be stressed here is that which this court has stressed before: the
presumption of impartiality and the double requirement of reasonableness. The
presumption of impartiality is implicit, if not explicit, in the office of a judicial officer. This
presumption must be understood in the context of the oath of office that judicial officers are
required to take, as well as the nature of the judicial function. Judicial officers are required
by the Constitution to apply the Constitution and the law 'impartially and without fear,
by the Constitution to apply the Constitution and the law 'impartially and without fear,
favour or prejudice'. Their oath of office requires them to 'administer justice to all persons
alike without fear, favour or prejudice, in accordance with the Constitution and the
law'. And the requirement of impartiality is also implicit, if not explicit, in s 34 of the
Constitution which guarantees the right to have disputes decided 'in a fair public hearing
before a court or, where appropriate, another independent and impartial tribunal or forum'.
This presumption therefore flows directly from the Constitution.
[32] As is apparent from the Constitution, the very nature of the judicial function requires
judicial officers to be impartial. Therefore, the authority of the judicial process depends
3 1999 (4) SA 147 (CC) at paragraph [48]
4 2011 (3) SA 92 (CC)
upon the presumption of impartiality. As Blackstone aptly observed, '(t)he law will not
suppose a possibility of bias or favour in a judge, who [has] already sworn to administer
impartial justice, and whose authority greatly depends upon that presumption
and idea'. And, as this court observed in SARFU II, judicial officers, through their training
and experience, have the ability to carry out their oath of office, and it 'must be assumed
that they can disabuse their minds of any irrelevant personal beliefs and
predispositions'. Hence the presumption of impartiality. (footnotes omitted)
[85] There is a double requirement of reasonableness . This was set out by the
Constitutional Court as follows:
“[34] The other aspect to emphasise is the double requirement of reasonableness that the
application of the test imports. Both the person who apprehends bias and the
apprehension itself must be reasonable. As we pointed out in SACCAWU, 'the two -fold
emphasis . . . serve[s] to underscore the weight of the burden resting on a person alleging
judicial bias or its appearance'. This double requirement of reasonableness also 'highlights
the fact that mere apprehensiveness on the part of a litigant that a judge will be biased —
even a strongly and honestly felt anxiety — is not enough'. The court must carefully
scrutinise the apprehension to determine whether it is, in all the circumstances, a
reasonable one.
[35] The presumption of impartiality and the double requirement of reasonableness
underscore the formidable nature of the burden resting upon the litigant who alleges bias
or its apprehension. The idea is not to permit a disgruntled litigant to successfully complain
of bias simply because the judicial officer has ruled against him or her. Nor should litigants
be encouraged to believe that, by seeking the disqualification of a judicial officer, they will
have their case heard by another judicial officer who is likely to decide the case in their
have their case heard by another judicial officer who is likely to decide the case in their
favour. Judicial officers have a duty to sit in all cases in which they are not disqualified
from sitting. This flows from their duty to exercise their judicial functions. As has been
rightly observed, '(j)udges do not choose their cases; and litigants do not choose their
judges'. An application for recusal should not prevail, unless it is based on substantial
grounds for contending a reasonable apprehension of bias. ( footnotes omitted)
[86] The Court then went on to set out the test that I must apply in deciding whether or not to
recuse myself in the below quoted paragraphs:
“[36] But equally true, it is plain from our Constitution that 'an impartial Judge is a
fundamental prerequisite for a fair trial'. Therefore, a judicial officer should not hesitate to
recuse himself or herself if there are reasonable grounds on the part of a litigant for
apprehending that the judicial officer, for whatever reason, was not or will not be
impartial. In a case of doubt, it will ordinarily be prudent for a judicial officer to recuse
himself or herself in order to avoid the inconvenience that could result if, on appeal, the
appeal court takes a different view on the issue of recusal. But, as the High Court of
Australia warns:
'(I)f the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or
decide a case, the system would soon reach a stage where, for practical purposes, individual parties
could influence the composition of the bench. That would be intolerable.'
[37] Ultimately, what is required is that a judicial officer confronted with a recusal
application must engage in the delicate balancing process of two contending factors. On
the one hand, the need to discourage unfounded and misdirected challenges to the
composition of the court, and, on the other hand, the pre -eminent value of public
composition of the court, and, on the other hand, the pre -eminent value of public
confidence in the impartial adjudication of disputes. As we said in SACCAWU, in striking
the balance, a court must bear in mind that it is 'as wrong to yield to a tenuous o r frivolous
objection as it is to ignore an objection of substance'. This balancing process must, in the
main, be guided by the fundamental principle that court cases must be decided by an
independent and impartial tribunal, as our Constitution requires.” (footnotes omitted)
[87] Bearing this in mind, I turn now to deal with the grounds for my recusal.
Evaluation of the Grounds for Recusal
[88] I have carefully considered each of the grounds raised by the applicant against
the objective test outlined above to be applied in considering whether or not to
grant the applicant’s application for my recusal. I will deal with each of these
grounds in turn.
a. Procedural irregularity
[89] The applicant complains that on 16 January 2026 I directed that she file a
response to the respondents attorney’s affidavit and the respondent’s counter -
claim over the weekend when she had a pending application for my recusal.
The applicant argues that this directive to file further papers on the
merits while the recusal was pending was a procedural irregularity. She claims I
had "descended into the aren a" by defending my own impartiality and forcing
her to participate in a trial before a judge whose authority she was challenging.
[90] This is quite untrue. I directed the applicant to respond to the supplementary
affidavit filed by the respondent’s attorney by 17h00 on Sunday 18 January
2026 on Friday 16 January 2026, before she had sought my recusal.
[91] In so far as the applicant’s argument in this regard is based on the fact that the
Order I made on Friday 16 January 2026 was not uploaded onto Caselines until
Monday 19 January 2026 by my registrar and thus her application for my
recusal preceded my directions, this is a technical argument raised by the
applicant without any merit at all.
[92] The order I made, I made in court and its delivery was 16 January 2026 and not
19 January 2026. The uploading of the order onto Caselines after it had been
19 January 2026. The uploading of the order onto Caselines after it had been
delivered was purely administrative. In any event, the applicant filed an affidavit
as directed o n Sunday 18 January 2026 as she herself says she was
compelled to do by me.
b. Procedural Unfairness
[93] The Applicant submit s that the proceedings have been procedurally unfair to
her, citing a lack of proper notice and an inability to present her full case as a
lay litigant.
[94] The applicant also objects to my directing that she answer the respondent’s
counter-application.
[95] The court has a duty to manage its proceedings efficiently and fairly, ensuring
that all parties, especially lay litigants, are given a proper opportunity to present
their case. The court also has the duty to put issues to litigants that it feels
should be addressed and go to what the judicial officer believes to be the heart
of the matter.
[96] I reasonably gained the impression from the history of the litigation that the
applicant was raising technical arguments of little merit in order to avoid
repossession of the motor vehicle. This was certainly the view taken by both
D’Oliveira AJ and Reid J. The first issue that I thus asked the applicant to
address was why she felt it was just that she be able to retain possession of her
car although she admits not having made payment to the bank since November
2022.
[97] The respondent’s counsel argued that the respondent’s conduct amounted to
an abuse of the court process and in particular the urgent court process and
was merely a delaying tactic. He urged me to put an end to it and grant his
counter-application as the respondent reasonably feared that the vehicle was
depreciating and may suffer damage whilst all of the applications that the
applicant had brought were pending. He urged me to consider granting the
counter-application that the vehicle be delivered to the res pondent for
safekeeping pending the outcome of the various pending applications brought
by the applicant.
[98] I thus directed that the applicant file an answering affidavit to the counter -
application. I stood the matter down in order to afford the applicant an
opportunity to answer the counter -application and to persuade me in argument
why the counter -claim should not be granted. I also intended that the
respondent’s counsel address me on whether the order proposed was legally
competent. Despite being given an opportunity to answer the counter -
application, the applicant declined to do so and instead sought by recusal.
[99] I reiterate that I insisted on truncated time periods being complied with as the
applicant had brought her matter in the urgent court. What the applicant wished
me to do was grant interim interdictory relief so that she could answer the
counter-claim. In my view the matter had already been inordinately delayed and
the issue of the applicant’s continued possession of the vehicle needed to be
addressed.
[100] My actions in seeking to be addressed on these issues and affording both
parties an opportunity to advance their respective arguments were part of my
case management function and are not indicative of bias. A reasonable
observer would understand this distinction.
[101] The applicant complained that I interrupted her and would not permit her to
argue the issues raised by her fully. I did interrupt her but only when she
persisted in addressing the technical issues she had raised when I had
specifically asked her to deal with the critical issues I had asked her to address.
[102] The applicant also forgets that her matter was brought before me in a very busy
urgent court where she would not ordinarily be afforded the inordinately long
period of time to address me that I allowed her as she was a lay litigant . Where
I believed her complaints raised by the applicant had merit, I stood the
proceedings down and directed the respondent’s attorney to deal with these
issues as set out above. If I recall correctly, on both days that I heard the
issues as set out above. If I recall correctly, on both days that I heard the
applicant’s application I sat beyond 4 pm in or der to enable the applicant to
address me fully on the basis for her application.
[103] Having allowed the applicant to address me fully, I tried to explain to her that
the issues raised by her were of a purely technical in nature and did not
address the real issues. I indicated that I wished to address the real issues, to
which the applicant objected , insisting that she had the right to raise these
issues and hold the respondent strictly to the Rules of Court and the Practice
Directives. She would not accept it when I tried to explain to her that the Rules
were for the court and not the court for the Rules. Her attitude to me became
disdainful and dismissive.
b. The Allegations of Fraud and Abuse of Process:
[104] The Applicant argue s that the serious allegations of fraud against the
Respondent and its attorneys are so fundamental that any judge presiding
would be drawn into adjudicating the very misconduct alleged, creating an
apprehension of bias.
[105] The would clearly also apply to any other judge who, should I recuse myself, be
seized of the matter going forward.
[106] The fact that a litigant makes serious allegations against the opposing party
does not, in itself, disqualify a judge from hearing the matter. Judges are
routinely called upon to adjudicate disputes involving allegations of fraud,
dishonesty, and unethical conduct. It is the essence of the judicial function to
weigh evidence and make findings on such allegations. The fact that the
allegations involve officers of this court does not change this.
[107] There is no reasonable basis to believe that I could not impartially assess the
evidence presented by both sides and come to a fair conclusion. A reasonable,
informed observer would appreciate that judges are trained and required to
adjudicate such matters without bias and that I was capable of doing so.
[108] In fact when the applicant drew it to my attention that the respondent had
applied for a writ of attachment to which it had annexed an erroneous judgment
I immediately stood the matter down and directed the respondent’s attorney to
provide me with a full explanation on oath to explain this.
c. Perception of bias:
[109] The Applicant submits that, based on the history of the matter and the fact that
previous applications have been decided against her, a reasonable
apprehension of bias exists.
[110] This has been expressly found not to be a basis for the recusal of a judge by
the Constitutional Court in Bernett.
[111] The Applicant's perception of bias appears to stem from her dissatisfaction with
the negative outcomes of previous applications and in my refusing her a
postponement to answer the respondent’s attorneys supplementary affidavit
and insisting that she deal with the counter -application. This was totally
justifiable in the circumstances outlined above.
[112] It is a fundamental principle of our legal system that an adverse ruling, or a
series of adverse rulings, does not constitute evidence of bias. A reasonable,
objective observer would understand that a judge may rule against a party on
legal or factual grounds or indicate a possible leaning towards an outcome
without being biased.
[113] As was said in Bernert, “[t]he idea is not to permit a disgruntled litigant to
successfully complain of bias simply because the judicial officer has ruled
against him or her. Nor should litigants be encouraged to believe that, by
seeking the disqualification of a judicial officer, they will have their case heard
by another judicial officer who is likely to decide the case in their favour.”
[114] The test is not whether the applicant subjectively perceived that I may be
biased, but rather whether a reasonable observer would find that my actions
were such that there was a reasonable perception of bias on my part. As was
stated by the Constitutional Court in Bernert, “mere apprehensiveness on the
part of a litigant that a judge will be biased — even a strongly and honestly felt
anxiety — is not enough'. The court must carefully scrutinise the apprehension
to determine whether it is, in all the circumstances, a reasonable one.”
to determine whether it is, in all the circumstances, a reasonable one.”
[115] The Applicant's concerns, if genuinely held, had nothing to do with the conduct
of the matter by me or the rulings I made, but I believe were based upon a
subjective feeling of unfairness stemming from the history of the matter and the
fact that two courts had now ruled against her ; what the applicant terms as her
perception of my bias was none other than an expression of her fear that I may
rule against her as well.
[116] This does not provide evidence of a reasonable perception of bias or a valid
basis for my recusal.
[117] The applicant also accused me of bias for stating that I was satisfied with the
explanation provided. However, this was my prima facie view on reading the
respondent’s attorney’s affidavit. I did, however, ask the applicant whether she
accepted the explanation provided and whether she wished to answer the
affidavit. I allowed the applicant to address me on the affidavit and agreed with
her that it was concerning that the applicant’s attorneys had made this error
twice and that despite what was stated, the error was not corrected.
[118] However, my prima facie view was that although this was concerning, I was not
certain whether one could read something sinister into the fact that Mzuzu J’s
order had twice been attached to the application for a writ . I cannot imagine
what advantage the respondent could possibly have obtained from attaching
the wrong judgment, as having done so, the registrar would certainly not have
granted the writ and in fact had not granted the writ by the time the proceedings
were argued before me. This is particularly so as the applicant had a judgment
in its favour and did not need to manufacture one to obtain a writ.
[119] This, however, was only my prima facie view as by this stage the applicant had
not filed an answering affidavit and this was an issue I obviously intended to
revisit when I had read the applicant’s answering affidavit and heard argument
from both parties on Monday 19 January 2026 . I was not able to do so as on
Monday 19 January 2026 the applicant sought my recusal.
d. The Conduct of the Court
[120] I have dealt with this extensively above. I reiterate that I read the papers
[120] I have dealt with this extensively above. I reiterate that I read the papers
thoroughly before the hearing of the matter, notwithstanding my sitting in a busy
urgent court. There is nothing in my conduct that could reasonably lead to an
apprehension of bias. What the applicant did not like was the nature of the
questions raised by me as she believed that they were suggestive of the
direction in which I was heading and may result in the counter-application being
granted. Where the court expresses its prima facie views, this is not evidence
of bias; it is evidence that the court has read the papers and has formed a view
that the court wishes to be addressed on.
[121] I believe that all judges form prima facie views after reading the papers that are
put to the parties and may or may not be changed after argument; indeed it has
happened to me on numerous occasions that my initial views have changed
after argument or even when preparing my judgment. This is commonplace
amongst judges and there is nothing untoward in this; it certainly does not
evidence bias and is part and part of the deliberation process a court must go
through in coming to a decision.
[122] To grant the applicant’s application for my recusal would be to allow a litigant to
avoid a hearing by a particular judge who the litigant perceives may have a
negative attitude to their case . This would undermine the proper administration
of justice and hold courts to ransom by dissatisfied litigants when courts
express their negative impressions of their cases.
[123] As was said in Bernert, litigants should not be “encouraged to believe that, by
seeking the disqualification of a judicial officer, they will have their case heard
by another judicial officer who is likely to decide the case in their favour ”. This
would amount to forum shopping that is not permissible.
[124] The applicant is not the first litigant to appear before a court where the
questions raised by the court serve to indicate in what direction the court is
leaning. A judge is not obliged to sit and listen to the arguments and not
engage with them. Indeed it is proper that the judge put difficulties he or she
has with the matter to the parties so that they might have an opportunity of
dealing with them.
dealing with them.
[125] The fact that I proposed to deal with the counter -application before me was my
duty. The fact that I proposed that the applicant deliver the vehicle to the
respondent for safekeeping pending the outcome of both her rescission
applications that I suggested be consolidated, but I would make an order
precluding the applicant from executing on the summary judgment, does not
evidence misconduct of the proceedings; on the contrary a reasonable person
would agree that this may have been a sensible and just approach in the
circumstances for which I could not reasonably be faulted. This would have
given the applicant sufficient time to answer to both the respondent’s attorneys
affidavit and the counter-application.
[126] This proposal was not accepted by the applicant who instead pretended not to
hear me. I thus directed that she file the required affidavits by 17h00 on Sunday
18 January 2026, which was a sufficient and reasonable time to enable the
applicant to do so in the circumstances.
e. Digital record irregularity
[127] The applicant complains that the directive I issued on 16 January 2026
standing the matter down until Monday 19 January 2026 was not uploaded on
Caselines, although it had been communicated to her telephonically which I
witnessed on teams and had been sent to her via email to confirm the order
made by me. She alleges that this created uncertainty and prejudice.
[128] There was no prejudice; the directions I gave were communicated to the
applicant by my registrar and was visible to me and the respondent’s counsel
and attorney on Teams ; hereafter, the Order I made was sent to the applicant
via email. She appeared in court on Monday 19 January 2026 and clearly
received these communications.
Conclusion
[129] Having applied the objective test outlined by the Constitutional Court above , I
am not persuaded that a reasonable, objective and informed person, knowing
all the facts, would reasonably apprehend that I might not be impartial.
[130] This is also not sort of case where a recusal should be granted as the motive
behind it is to avoid adverse rulings and amounts to forum shopping.
[131] Indeed, the applicant’s conduct in this matter constitutes an abuse of the
process of the court . In my view, the applicant’s actions in pretending not to
hear me when I put difficult questions to her or made a proposal she did not
like, went beyond mere abuse and bordered on contempt of court. When this
tactic did not succeed as the Order I made was communicated to her by my
registrar telephonically, appeared on the screen and was emailed to the
applicant afterwards, she sought my recusal. To allow the applicant to avoid my
continuing to hear the matter in circumstances such as these would be to allow
litigants to ride rough shod over the courts and make a m ockery of the court
process that cannot be countenanced.
[132] I thus decline to recuse myself.
[133] That being said, I am entitled to continue to hear the matter and would have
done but for the fact that I have decided to adopt a pragmatic approach to the
matter. I am acutely aware that should I try to do so the applicant will
immediately apply for leave to appeal my judgment refusing to recuse myself,
and should I not grant her leave, she will petition the Supreme Court of Appeal
to allow her to do so. Should this be granted, this matter will be held in
abeyance until after the appeal is heard and until judgment on my failure to
recuse myself has been delivered. This will only serve to delay the matter
further to the respondent’s prejudice and allow the applicant to retain
possession of the motor vehicle for a substantially longer period.
[134] I point out that I granted an interim interdict restraining the respondent from
executing on the summary judgment granted by D’Oliveira pending the delivery
of this judgment. Should she appeal my judgment, the applicant may argue that
my judgment is not final in view of her application for leave to appeal it or, if
leave is granted until after the hearing and judgment on the appeal . The effect
of such an argument may be that until these issues have been decided the
interim interdict granted by me needs to remain in place. This would render my
continued hearing of the matter by me academic.
continued hearing of the matter by me academic.
[135] In any event, having spent a good deal of time perusing the papers in writing
this judgment, I have decided that I need not hear the matter further . I have
heard the respondent’s counsel’s submission on the counter -application but do
not need to hear the applicant as I do not believe that it would be legally
competent for me to grant the respondent’s counter -application. In my view to
do so would be tantamount to allowing attach ment of the motor -vehicle while
the applicant’s application to rescind the summary judgment granted by
D’Oliveira is still pending.
[136] In saying this, I am also mindful that should I grant the counter-application or
refuse the applicant temporary interdictory relief , the applicant will simply apply
to rescind my judgment.
[137] I thus believe that the most sensible and most practical solution is to grant the
applicant interim relief and expedite the hearing of the applicant’s rescis sion
applications to avoid further delay and prejudice to the respondent. The
applicant has remained in possession of the motor vehicle for more than two
years and should she retain possession of the vehicle for a few more months ,
should not make too much more of a difference.
[138] I have decided to adopt this approach knowing that the applicant may not have
established a prima facie right to the interdictory relief sought as her
applications to rescind both D’Oliveira AJ’s judgment and that of Reid J are
baseless and the respondent has established a clear right to attach the motor
vehicle. Again should I have found this, the applicant would have applied for
the rescission of my judgment.
[139] It is not necessary that I further hear the applicants arguments on the
manipulation of the digital record and other procedural irregularities at this
stage as they are not germane to her application for an interim interdict ,which I
have in any event decided to grant; they may or may not be relevant to her
applications for rescission and may be dealt with in that forum.
[140] Thus the order I will make will be to grant the applicant an interim interdict ,
consolidate the pending rescission applications and direct that the parties
approach the Acting Deputy President to allocate a preferential date for the
approach the Acting Deputy President to allocate a preferential date for the
hearing of both matters that I will support . The most fair order that I can make
with regard to costs is that costs of the main application before me be costs in
the cause of the consolidated applications.
[141] I am unable to grant the remaining relief sought by the applicant condoning the
late filing of her replying affidavit in her application for the rescission of
D’Oliveira AJ’s judgment , or affording her the right to file a supplementary
affidavit in that rescission application or in her application to rescind Reid J’s
judgment, as this is a matter for decision by the court hearing those
applications.
Costs of the application for my recusal
[142] The applicant has unjustifiable impugned the integrity of a judge of t he High
Court
[143] More seriously, the applicant ’s conduct in pretending not to hear me when I
raised questions she did not, and could not answer and when I proposed
making a ruling adverse to her was not only an abuse of the process of the
court but was tantamount to contempt of court. She thereafter further abused
the process of court in seeking my recusal to avoid any adverse ruling I might
make.
[144] This warrants a punitive order of costs.
Order
1. The application for my recusal is dismissed with attorney and client costs.
2. Directing that the applicant’s applications for the rescission of the judgment of
D’Oliveira AJ dated 3 September 2025 and the judgment of Reid J dated 19
November 2025 under case number 031959-2023 be consolidated.
3. Directing the parties to approach the Acting Deputy Judge President of this
division for a preferential date for the hearing of the aforementioned
applications for rescission.
4. Pending the outcome of the a pplicant’s aforementioned applications for
rescission, I direct that the interim interdict that I granted on 23 January 2026
remain in place and order that the respondent be interdicted from taking steps
to apply for a writ of execution on the basis of the judgment granted by
D’Oliveira AJ on 3 September 2026 , and if already applied for or granted, to
seek to execute pursuant to such a writ of execution.
5. Directing that the costs of the main application for an interim interdict be costs
in the cause in the aforementioned rescission applications.
_________________________
S WENTZEL – THOMPSON J
JUDGE OF THE HIGH COURT
JOHANNESBURG
Appearance for the applicant: In person Mercy M Mokgolo
Appearance for the respondent: Adv. Naude
Instructed by: Hammond Pole Attorneys
Date of the hearing: Friday 23 January 2025 (recusal application)
Thursday 14 January 2026 and 15 January 2026 (main
application)