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IN THE HIGH COURT OF SOUTH AFRICA GAUTENG
DIVISION, PRETORIA
Case number:2024/024847
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED
28 April 2026
SIGNATURE DATE
In the application between:
ALLAN GRAY UMBRELLA PROVIDENT FUND First Intervening Party
ALLAN GRAY INVESTMENT SERVICES (PTY) LTD Second Intervening Party
In re
A[...] T[...] Applicant
and
TYLER DU PLESSIS First Respondent
FAIZIL JAKOET Second Respondent
JONATHAN HENRY TURNER
Third Respondent
JUDGMENT
INTRODUCTION
1. In this matter, there are three interrelated applications:
1.1 A contempt application instituted by Ms T[...] (hereinafter referred to as the
applicant) against the first to the third respondents.
1.2 An application for intervention by the intervening parties.
1.3 A rescission application by the respondents as well as the intervening
parties in respect of a declaratory order, granted by Swanepoel J on 27
January 2025, made in respect of a settlement agreement reached
between the applicant and her former spouse in divorce proceedings,
concerning the spouses’ pension interest.
2. The parties agreed that the contempt application was not set down for hearing.
However, it goes without saying that if the rescission application of the
intervening parties as well as the respondents is granted, the contempt
application becomes moot.
3. On behalf of the applicant the non -joinder of her husband by the intervening
parties and the respondents in the application for rescission was raised, since he
has a vested interest in the order granted.
4. On 3 March 2023, Mr T[...] specifically stated that he does not wish to
participate in the applications before court and filed a notice to abide.
BACKGROUND
5. The applicant and her husband, S[...] A[...] T[...] (he is not a party to any of the
applications before me) who were married out of community of property, were divorced
on 10 June 2024 and their settlement agreement was made an order of court.
6. In November 2024 the plaintiff applied for a variation of the divorce order. The
variation application was served on her ex -husband as well as on the second
intervening party and the variation order was granted without any opposition on 27
January 2025.
5. The applicant, in the founding affidavit in support of the variation / declaratory order,
dealt at length with the correspondence received from Allan Gray and the
reasons for their refusal to pay her 50% of Mr T[...]’s pension interest.
7. The varied order provides as follows:
“1. The decree of divorce handed down on 10 June 2024 is varied to
include an order incorporating the addendum attached hereto and marked “Y”.
2. The below provisions in the agreement of settlement incorporated
in the decree of divorce on 10 June 2024 are declared lawful and the second respondent
is bound thereby:
“6.5 I tis recorded that the Defendant is a member of the Allan
Gray Umbrella Provident Fund (the Defendant’s Pension Fund”) with membership number
A[...], which is registered as a privately administered pension fund in terms of the Pension
fund Act (1956) and approved as a pension fund in terms of the Income Tax Act (1962).
The fund is administered by Allan Gray.
6.6 The parties agree that the Plaintiff is in terms of Section 7(8)
of the Divorce Act, Act 70 of 1979, entitled to receive 50% (fifty percent) of the
Defendant’s pension interest (“the pension interest”) in the Defendant’s Pension Fund.
6.8 The Plaintiff shall be liable for any and all taxes, penalties and
costs occasioned hereby. The Plaintiff specifically acknowledges that tax, in accordance
with the provisions of the Income Tax Act may be deducted from the amount of the
pension interest”.
8. The amended order was emailed to the second respondent (hereinafter referred
to as AGIS) on 6 February 2025, at the following general addresses, i[...] and
u[...]. In response to the email, the applicant and her attorney of record was once
again informed that, according to Allan Gray, it is legally prohibited from
transferring any portion of Mr T[...]’s pension benefits to the applicant since they
were married out of community of property without the accrual and Allan Gray
refused to comply with the order dated 27 January 2025.
9. Due to AGIS’s failure to comply with the order, the applicant brought a contempt
application against the respondents, being employees of Allan Gray. The
contempt application was issued under the same case number as the divorce
action without any application to formally join them as respondents.
10 On receipt of the contempt of court application in March 2025, AGIS, being the
second respondent in the variation order, as well as Allan Gray Umbrella
Provident Fund (hereinafter referred to as the Fund) as the first intervening party,
Provident Fund (hereinafter referred to as the Fund) as the first intervening party,
brought an application for intervention in the contempt of court application as well
as a rescission of the declaratory order dated 27 January 2025, application. The
notice of motion was served in April 2025.
11. For completeness’ sake, the difference between the Fund, AGIS and Allan Gray
(Pty) Ltd (who is not a party to these proceedings) is important:
11.1 Allan Gray (Pty) Ltd is a private company and an investment manager and
authorised financial service provider in terms of the financial Advisory and
Intermediary Services Act. Mr du Plessis, the first respondent in the
contempt of court application is an employee of Allan Gray (Pty) Ltd.
11.2 Allan Gray Umbrella Provident Fund (the Fund) holds the pension interest
of Mr T[...], and the Fund has the necessary authority, by virtue of Section
37(D)(91)(d)(i) of the Pension Funds Act 24 of 1956, to give effect to court orders.
11.3 Allan Gray Investment Services (Pty) Ltd (AGIS) is the administrator of the
Fund under section 13B of the Pension Funds Act and it performs
administrative functions on behalf of the Fund and has to give effect to the
Fund’s authority in terms of section 37(D)(1)(d)(i) of the Act. Messrs
Jakoet and Turner (the second and third respondents in the contempt
application) are two of seven directors of AGIS.
LEGAL REQUIREMENTS FOR INTERVENTION
12. Rule 12 of the Uniform Rules of Court provides as follows:
“Any person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at any stage of
the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application make such order,
including any order as to costs, and give such directions as to
further procedure in the action as to it may seem meet.’
13. An applicant for intervention must establish a direct and substantial interest in
the relief sought. In SA Riding for the Disabled Association v Regional
Land Claims Commissioner and Others 1, the Constitutional Court stated
the position as follows:
“[9] It is now settled that an applicant for intervention must meet the direct
and substantial interest test in order to succeed. What constitutes a direct and
substantial interest is the legal interest in the subject-matter of the case which could be
prejudicially affected by the order of the court. This means that the applicant must show
that it has a right adversely affected or likely to be affected by the order sought.
[10] If the applicant shows that it has some right which is affected by the order
issued, permission to intervene must be granted. For it is a basic principle of our
law that no order should be granted against a party without affording such party a
pre-decision hearing. This is so fundamental that an order is generally taken to
be binding only on parties to the litigation.
[11] Once the applicant for intervention shows a direct and substantial interest
in the subject matter of the case, the court ought to grant leave to intervene. In
Greyvenouw CC this principle was formulated in these terms:
“In addition, when, as in this matter, the applicants base
their claim to intervene on a direct and substantial interest in the subject-matter of
the dispute, the Court has no discretion: it must allow them to intervene because it
should not proceed in the absence of parties having such legally recognised
interests.”
1 SA Riding for the Disabled Association v Regional Land Claims Commissioner and Others 2017 (5) SA 1 (CC)
14. It follows that a party can only be said to have a direct and substantial interest
in the matter if the relief sought cannot be sustained and carried into effect
without prejudicing their interests.2
15. The Fund is the registered provident fund in which Mr T[...]’s pension interest
is held, and AGIS is the registered fund administrator and authorised
financial services provider, appointed by the Fund to administer the fund.
16. Although AGIS, was the second respondent in the declaratory application, it
was not cited as a respondent in the contempt of court application. As
indicated above, only Mr Jakoet (the second respondent) and Mr Turner (the
third respondent) as directors of AGIS and Mr du Plessis (the first respondent)
who is an employee of Allan Gray (Pty) Ltd, were for the first time cited as
respondents.
17. It is clear that both the intervening parties have a direct and substantial
interest in the contempt of court application as well as in the declaratory
application, since the Fund holds the pension interest and AGIS as fund
administrator must give effect to the Fund’s authority.
18. Both intervening parties are of the view that the agreement reached between
the applicant and her husband, and consequently the declaratory order,
relating to his pension interest in the Fund is invalid because it requires them
to act in contravention of the Divorce Act, 70 of 1979.
19. In the premises, I grant both the intervening parties leave to intervene in the
contempt of court proceedings and the Fund to also intervene in the
declaratory proceedings.
2 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 653; Gordon v Department of Health,
Kwazulu-Natal 2008 (6) SA 522 (SCA) at para 9; Absa Bank Ltd v Naude NO 2016 (6) SA 540 (SCA) at para 10.
RESCISSION APPLICATION
20. The intervening parties applied for a recission of the declaratory order. AGIS
applies in terms of the common law and The Fund in terms of the common law as well
as Rule 42(1)(a) on the basis that the declaratory order was erroneously sought or
erroneously granted in its absence.
21. In terms of the common law a default judgment may be set aside on the grounds
of fraud or justus error3.
22. In De Wet and Others v Western Bank Ltd 3 the learned judge, remarked as
follows about the common law provisions relating to the rescission of judgments:
“The Courts of Holland, as I have mentioned, appear to have had a relatively wide
discretion in regard to the rescission of default judgments, and a distinction seems to
have been drawn between the rescission of default judgments which had been granted
without going into the merits of the dispute between parties, and the rescission of final
and definitive judgments, whether by default or not, after evidence had been adduced
on the merits of the dispute. (Cf Athanassiou v Schultz 1956 (4) SA 357 (W) at 306
G, and Verkoteren v Savage 1918 AD 143 at 144). In the former instance the Court
enjoyed relatively wide powers of rescission whereas in the latter event the Court was,
generally speaking regarded as been functus officio, and judgments could only be set
aside on the on the limited grounds mentioned in the Childerley case. ….the learned
judge at 1042 F continued and stated that “Thus, under common law the Courts of
Holland were, generally speaking, empowered to rescind judgments obtained on
default of appearance, on sufficient cause
3 Childerley Estate Stores v Standard bank of South Africa Ltd 1924 OPD 163
3 1979 (2) SA 1031 (A) at 1041B
shown. This power was entrusted to the discretion of the Court. Although rigid limits
were set as to the circumstances which constituted sufficient cause … the Courts
nevertheless laid down certain general principles, for themselves, to guide them in the
exercise of their discretion. Broadly speaking, the exercise of the Court’s discretionary
power appears to have been influence by considerations of justice and fairness, having
regard to all the facts and circumstances of a particular case. The onus of showing the
existence of sufficient cause for relief was on the applicant in each case, and he had to
satisfy the Courts, inter alia, that there was a reasonably, satisfactory explanation why
the judgment was allowed to go by default. It follows from what I have said that the
Court’s discretion under the common law extended beyond, and was not limited to, the
grounds provided for in Rules 31 and 42 (1), and those specifically mentioned in the
Childerley case.”
23. In Grant v Plumbers (Pty) Ltd 4 it was held that the following requirements
should be complied with in order to show “good cause”.
“(a) An applicant must give a reasonable explanation of his default. If it
appears that his default was wilful or that it was due to gross negligence the court should
not come to his assistance,
(b) The application must be bona fide and not made with the intention of
merely delaying plaintiff’s claim, and
(c) The applicant must show that he has a bona fide defence to the
plaintiff’s claim. It is sufficient if he makes out a prime facie defence in the
sense of setting out averments which, if established at the trial, would
entitle him to the relief asked for. He need not deal fully with the merits of
the case and produce evidence that the probabilities are actually in his
4 1949 (2) SA 470 (0)
favour.”
24. Rule 42(1)(a) provides that “the court may, in addition to any other powers it may
have, mero motu or upon the application of any party affected, rescind or vary an
Order or judgment erroneously sought or erroneously granted in the absence of
any party affected thereby”. Generally, a judgement/order would have been
erroneously granted if there existed at the time of its issue, a fact which the court
was not aware of, which would have precluded the granting of the
judgement/order and which would have induced the court, if aware of it, not to
grant such a judgement/order.
25. The purpose of Rule 42(1) is to correct expeditiously and obviously a wrong
judgement/order. When relying on this rule, both requirements must be shown to
exist and once that is done, the court is merely endowed with a discretion which
must be exercised judicially and influenced by considerations of fairness and
justice, and it is not compelled to rescind the judgment/order5 .
26. In Harris v ABSA Bank Ltd Volkskas6 it was held that:
“(8) Before an applicant in a rescission of judgment application can be said
to be in “wilful default” he or she must bear knowledge of the action
brought against him or her and of the steps required to avoid the default.
Such an applicant must deliberately, being free to do so, fail or omit to
take the step which would avoid the default and must appreciate the legal
consequences of his or her actions. A decision freely taken to reform from
filling a notice to
5 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in
the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) (17
September 2021) at para 53.
6 2006 (4) SA 527 (T) at paragraph 8.
defend or a plea or from appearing would ordinarily weigh heavily against
an Applicant required to establish sufficient cause.’
and further
‘(10) A steady body of judicial authorities has held that a court seized with
an application for rescission of judgment should not, in determining
whether good or sufficient cause has been proven, look at the adequacy
or otherwise of the explanation of the default or failure in isolation.
“Instead, the explanation, be it good, bad or indifferent, must be
considered in the light of the nature of the defence, which is an important
consideration, and in the light of all the facts and circumstances of the
case as a whole.”
DISCUSSION
27. On behalf of the intervening parties it is argued that the declaratory order is
inconsistent with the statutory framework governing pension interests, especially the
provisions of section 7(7(c) ) of the Divorce Act 70 of 1979 as well as section 37A of the
Pension funds Act, 24 of 1956 and that the court was therefore legally incompetent to
have made the order.
28. It is trite that an applicant for rescission must demonstrate the existence of a
substantial defence and not necessarily a probability of success. It is sufficient if he
presents a prima facie case that raises triable issues.
29. Both parties referred to the constitutional challenges of the Divorce Act, and it is
evident from their arguments that they differ about the interpretation and impact thereof
on the divorce of the applicant and her ex-husband.
30. Whether I agree with any of the arguments is neither here nor there, since it is
clear that the intervening parties, prima facie, raised triable issues.
31. I already found that the Fund should have been a party to the declaratory
proceedings since it is affected by the relief claimed and granted.
32. I therefore find that the declaratory order, granted in the absence of the Fund,
must be rescinded and set aside. In the premises, I deem it unnecessary to deal with
AGIS’s default and good cause.
COSTS
33. Considering the circumstances of this matter and the issues that need to be
resolved, I order that costs of the rescission application be costs in the
declaratory application.
34. Regarding the intervening application, no order as to costs is made.
ORDER
35. In the premises, I make the following order:
1. The intervening parties, Allan Gray Umbrella Provident Fund and Allan Gray
Investment Services (Pty) Ltd, are granted leave to intervene as the fourth and
fifth respondents respectively, in the contempt of court application
2. Allan Gray Umbrella Provident Fund, the first intervening party is granted leave to
intervene as the third respondent in the declaratory application.
3. The declaratory order granted by Swanepoel J on 27 January 2025 in Case 2024-
02487 is herewith rescinded and set aside and the intervening parties are granted
leave to oppose the application for a declaratory order.
4. Costs of the rescission application will be costs in the declaratory application and
no order as to costs is made in the intervention application.
________________________________
ACTING JUDGE JF BARNARDT
JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 28 April 2026.
APPEARANCES
For the applicant: Alexia Vosloo -De Witt
Instructed by : Burnett attorneys
For the intervening parties: Joseph Whitaker
Instructed by: Andrew de Vos & Associates
C/o Friedland hart Solomon & Nicolson
Date of hearing: 11 March 2026
Date of Judgement: 24 April 2026