REPUBLIC OF SOUTH AFRICA
'
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2020/19373
(1) REPORTABLE: YES/ 0
(2) OF INTEREST TO OT
(3) REVISED: YES/NO
\7 • b·,:ZO~b
----''f-+----1-1------
DATE SIG
In the matter between:
CHARMAINE VUYELWA NZANZWA NO
(In her capacity as the Executrix in the Estate of
the late Mabusha Bigvai Masekela
Estate Number 021568/2023)
and
MASEKELA A YANDA RAISIBE NO
(In her capacity as the Executrix in the !;'.state of
the late Toto Maria Madi Masekela
Estate number: 008348/2016)
Applicant
Respondent
JUDGMENT
Van Aswegen AJ
INTRODUCTION:
[1] The Applicant, in her capacity as executrix of the estate of the late Mabusha
Bigvai Masekela (the "Masekela estate")1, seeks an order rescinding and setting
aside the Default Judgment granted by Molahlehi J on 20 January 2022 (the
"Molahlehi J order").2
[2] The order was granted against Mr Mabusha Bigval Masekela ("Mr Masekela")
the executor, at the time, of the late Ms Toto Maria Madi Masekela's estate ("the
Toto estate"). It arose from Mr Masekela's personal misuse of assets belonging
to the Toto estate3 and directed payment of R1 114 495.67 plus interest.
[3] The Rescission Application was issued on 9 April 2025 approximately three (3)
years and two (2) months after the Default Judgment was granted.
FACTUAL MATRIX:
[4] It is common cause that:
[4.1] On 15 April 2016, Mr. Masekela was appointed as the executor of the
Toto estate. 4
[4.2] On 07 June 2017, the Master of the High Court, Johannesburg, sent
Mr. Masekela a letter requiring him to lodge a Liquidation and Distribution
account for the Toto estate. He failed to comply.
1 CVN 3at 015-32
2 CVN 4 at 015-33
3 Case Lines 003-1
4 CVN 5 at 015-30
2
[4.3] Consequently Mr. Masekela was removed as the executor of the Toto
estate on 17 July 2017 5 in terms of Section 54 of the Administration of
Estates Act on 17 July 2017. 6
[4.4] The Toto estate had no executor until 3 May 2018 when the Respondent
applied for Letters of Executorship, which she received on 24 August
2018.7
[5] On 10 February 2020, the Respondent's attorneys sent Mr. Masekela a letter
recording his unlawful possession and use of the Toto estate's assets and
demanding repayment of R1 114 495.67 to the Toto estate.
[6] Mr. Masekela on 11 February 2020 asked the Respondent's attorneys for their
banking details, acknowledged that he owed the Toto estate R1114 495.67, and
undertook to repay that amount.8
[7] On 25 February 2020, following a further enquiry from the Respondent's
attorneys, Mr. Masekela emailed them to say that he would be meeting
a certain Mr. Geyser to arrange the transfer of the funds.9
[8] The Respondent issued Summons on 21 August 2020 against Mr. Masekela for
R1 114 495.67. It was pleaded that Mr. Masekela had:
[8.1] taken possession and use of the assets of the Toto estate amounting
to R1 114 495. 67 for his personal use, which was prejudicial to the
heirs of the Toto estate;
[8.2] had misrepresented that there were no assets in the Toto estate for
distribution to the heirs;
[8.3] failed to declare Toto's lineage of next of kin who had to share in the
proceeds of the Toto estate.
5 CVN 6 at 015-36
6 003-26
7 Annexure AM 1 at 015-139
8 POC 3 at 003-24
3
[9] The Summons and Particulars of Claim were served personally on
Mr. Masekela.10
[1 O] Mr. Masekela did not enter an appearance to defend.
[11] The Respondent referred the case to the Registrar for Default Judgment on
29 September 2020. Subsequently, the Registrar referred the case to open court
on 25 March 2021.
[12] The Notice of Set Down of the Default Judgment was also twice served
personally on Mr. Masekela - namely on 19 May 2021 and again on
10 December 2021.
[13] The Default Judgment was thereafter heard, and an order was granted by
Molahlehi J on 20 January 2022.
[14] Five (5) months and two days after the Default Judgment was granted
Mr. Masekela passed away on 24 June 2022.11
[15] Mr. Masekela died intestate, his only heir being the Applicant's daughter , Ms.
Mokgadi Sasha-Lee Masekela who resides in China.
[16] There was no executor of the deceased's estate for the period from 24 June 2022
to 25 July 2022.
[17] Ms. Mokdagi Sasha-Lee Masekela, not intending to return to the Republic of
South Africa, could for practical purposes, not administer her father's estate. As
a result, she nominated the Applicant as Executrix of the said estate.
[18] The Applicant was appointed as executrix of the deceased's estate on 26 June
202212 and she instructed attorneys to assist her in the liquidation and distribution
of Mr. Masekela's estate.
10 004-1
11 CVN 8 015-43
12 CVN 3 at 015-33
4
[19) On the 19th day of October 2022, the Applicant's attorneys received a letter from
the Respondent's attorneys wherein they were informed that Default Judgment
had been granted against Mr. Masekela.13
[20) The Applicant pleaded that she was only financially able to instruct her attorneys
only on 26 May 2023.
[21) On 31 May 2023, the Applicant's attorneys wrote to the Respondent's attorneys,
confirming that they had noted the Default Judgment and would address it once
there was clarity on the estate's available assets. Importantly, they gave no
indication that the Applicant intended to seek a rescission of that judgment.
[22) The Applicant's attorneys further requested that the Respondent's brother who
was occupying Mr. Masekela's immovable property situated at 10539 Wei/em
Street, Kwa-Thema, Gauteng Province vacate the property and/or allow the
Applicant en.try in order to prepare a detailed inventory of the estate.14
[23) The Applicant furthermore pleaded that:
[23.1) the Respondent and her family had taken possession of
Mr. Masekela's motor vehicles and documents, including his identity
document, vehicle registration documents, and title deed;
[23.2] on 3 July 2023, the Respondent's brother allegedly misrepresented
himself as executor of Mr. Masekela's estate and concluded a sale
agreement disposing of one of Mr. Masekela's motor vehicles15 and
[23.3] that the Respondent's brother had unlawfully occupied Mr. Masekela's
immovable property.
13 CVN 9 at 015-44
14 CVN 11 at 015-48
15 CVN 10 at 015-46
5
[24] The Respondent and her family refused the Applicant access to the immovable
property and made it clear that they would not cooperate. The Respondent's brother
also refused to vacate the property.
[25] The Applicant had instructed her attorneys to issue a formal letter of demand requiring
the Respondent and her family to return all the assets belonging to Mr. Masekela's
estate. The Respondent similarly failed to comply, prompting the Applicant to institute
legal proceedings against them.
[26] On the 20th day of July 2023, the Applicant instituted an application for specific
performance against the Respondent and her family in the court under case number
71462/2023.16 The Respondent and her family elected to oppose the relief sought.
[27] The specific performance application sought to recover the deceased estate's assets
so that a detailed and comprehensive liquidation and distribution account could be
prepared, as the Respondent had repeatedly requested.
[28] The Applicant pleaded that, whilst the Respondent's brother occupied the deceased's
immovable property, she observed that the property was being neglected and falling
into disrepair. She therefore launched an eviction application against him.17
[29] The Respondent's brother subsequently proceeded to launch an application for a
Protection Order in the Kwa-Thema District Court on 4 October 2023 under case
number 229/2023. 18
[30] By this stage, Mr. Masekela's estate was involved in three legal disputes with the
Respondent and her family. Although aware that they held estate assets, the
Respondent continued to demand a Liquidation and Distribution Account for
Mr. Masekela's estate.
16 CVN 12 at 015-50
17 CVN 15 at 015-55
18 CVN 16 at 015-56
6
[31] The Applicant prepared a Draft Liquidation and Distribution Account after the
Respondent threatened to issue a warrant of execution if one was not provided.19
[32] The Applicant was left with no choice but to rely on estimations of Mr. Masekela's
assets. The Respondent was then supplied with an unsigned Draft Liquidation and
Distribution account.20 The Respondent's attorneys, were informed that it was merely
a draft as the Applicant still did not have access to the Deceased's assets.
[33] The Respondent's attorneys made it clear that their intentions were to continue holding
onto Mr. Masekela's immovable property and that the Applicant was to surrender the
estate in terms of the Insolvency Act 24 of 1936. 21
[34] The Final Liquidation and Distribution Account of Mr. Masekela's estate was finalized
on the 9th day of November 2023, and it lay for inspection from the
10th day of November 2023 to the 1st day of December 2023 at the Springs
Magistrate's Court.22
[35] The Respondent's attorneys then proceeded to launch an application for the
provisional sequestration of Mr. Masekela's estate on the 30th day of January 2024.23
[36] The Applicant's attorneys proceeded to oppose the sequestration application and filed
their answering papers.
[37] On 21 February 2024, the Applicant received information that would be vital to the
administration of Mr. Masekela's estate from the Respondent's attorneys.24 The
Applicant's attorneys consulted with the Applicant and informed her of the new
information they had received. The Applicant instructed them to amend the Liquidation
and Distribution Account in accordance with the information regarding the Immovable
Property. 25
19 CVN 17 at 015-57
2° CVN 18 at 015-61
21 CVN 19 at 015-66
22 CVN 20 at 015-68
23 CVN 21 at 015-74
24 CVN21.1 at015-75
25 CVN 21.2 at 015-76
7
[38] On 3 April 2024, the Applicant's attorneys sent an email to the Respondent's attorneys
incorporating a Deed of Settlement conceding Mr. Masekela estate's liability to the
Toto estate.26 The settlement agreement contains a paragraph which reads:
"AND WHEREAS the Estate of the Late Mabusha Bigvai Masekela is liable to the
Estate of the Late Toto Maria-Madi Masekela in the amount of Rt 114 495.67 (One
Million, One Hundred and Fourteen Thousand, Four Hundred and Ninety-Five Rands
and Sixty-Seven Cents) by virtue of a default judgement that was granted against the
Late Mabusha Bigvai Masekela under case number 19373/2020/'27
[39] On the 4th day of July 2024, a Court Order granting the eviction of the Respondent's
brother by the 16th day of August 2024 was granted and a Warrant of Ejectment was
served on him.28
[40] On the 16fh day of August 2024, the Respondent's brother was evicted. The Applicant
thereafter took possession of the Mr. Masekela's assets.
[41] Given the fact that the heir of the Estate resides in China and has no intention of
returning to South Africa, it became apparent that the best course of action would be
to sell Mr. Masekela's estate assets. This would allow the Applicant to pay off
Mr. Masekela's creditors and distribute the balance to the heir.
[42] It came to the Respondent's Attorney's attention that the Applicant intended to sell the
Immovable Property. In response thereto, they sent a letter to the municipality, and
the Applicant was informed that the municipality could not release the clearance
figures in respect of the Immovable Property pending the outcome of the sequestration
application. 29
[43] On the 11th day of December 2024, the Respondent's attorneys further lodged a
complaint with the Master of the High Court, Johannesburg wherein they attempted to
remove the Applicant as the Executrix of Mr. Masekela's Estate.30
26 AM 9.1 and AM 9.2 at 015-181 and
27 015-183
28 Annexure CVN 22 at 015-81
29 CVN 23 at 015-84
3° CVN 24 at 0 15-85
8
[44] On the 1st day of January 2025, the Applicant received confirmation from the Master
of the High Court that the removal of the Applicant from the office of Executrix is not
possible due to the pending litigation. The Master also further confirmed that the
Applicant had been granted an extension to lodge Mr. Masekela's Liquidation and
Distribution Account. 31
[45] On the 1 ?fh of January 2025, the Applicant consulted with her attorneys and advised
them to proceed with the rescission application, however the Applicant had no means
to financially instruct them at that point in time.
[46] On the 11th day of February 2025, the Applicant had the means to financially instruct
her attorneys to proceed with the rescission application.
CRUX OF THE MATTER:
[4 7] In order to seek a rescission, the Applicant has to allege default, reasons for the default
and good cause (if necessary).
[48] A judgment may be set aside in terms of the provisions of:
[48.1] Rule 31 (2)(b );
[48.2] Rule 42 and
[48.3] the Common Law.
[49] I shall sequentially consider the two Rules and there after the Common Law.
RULE 31(2)(b)
[50] Rule 31(2)(b) is unequivocal, it requires a defaulting party to make a rescission
application within 20 days from the date of acquiring knowledge of the order and to
demonstrate good cause.
31 CVN 26 at 015-92
9
[51] The judgment must have been a default judgment granted under rule 31 (2)(a) of the
uniform rules of court. This means that it must have been a judgment granted by the
court and not the registrar. It also means that the judgment by default must have been
due to the failure to enter appearance or to file a plea.32
[52] An application for rescission of judgment is not an inquiry about whether or not to
penalise a party for the failure to follow the rules and procedures. The question always
is whether or not the explanation for the default gives rise to a probable inference that
there is no bona fide defence. The court has a wide discretion to grant or refuse
rescission.33 The discretion to rescind the judgment must always be exercised
judicially and is primarily designed to enable courts to do justice between the
parties. Good cause34 means that:
[52.1] the Defendant has a reasonable explanation for the default.
[52.2] the application is bona fide and not made with the mere intention to delay the
Plaintiff's claim.
[52.3] the Defendant can show that he or she has a bona fide defence to the
Plaintiff's claim and that he or she has a bona fide intention to raise the
defence if the application is granted.
[53] Wilful default is normally fatal35. "Wilfuf' in this context connotes knowledge of the
action and its legal consequences and a conscious decision, freely taken, to refrain
from entering an appearance, irrespective of the motivation.
[54] It is common cause that the Summons as well as both the Notices of Set Downs were
served personally on Mr. Masekela. Despite personal service, Mr. Masekela did not
defend the action or appear in court when called upon.
32 De Sousa v Kerr 1978 3 SA 635 (W).
33 20171 ALL SA 116 (GP)
34 Madinda v Minister of Safety & Security 2008 3 All SA 143 (SCA) ;
35 Trapel Farms CC v Rode/ Financial Services (Pty) Ltd 2013 JOL 29822 (KZP) par 20
10
[55] The Applicant has proffered no sufficient explanation or any explanation at all for
Mr. Masekela's default. The mere allegation that the Applicant was ill is not a reason
for him not to act in terms of the Summons or the Notices of Set downs. Mr. Masekela's
non action in not defending and opposing the relief claimed is consistent with
Mr. Masekela's admission of liability to the Toto estate for the claimed amount.
[56] The Applicant, in her capacity as executrix, became aware of the Default Judgment
on 19 October 2022 but took no action until 11th day of February 2025. Although she
pleaded a lack of funds to instruct attorneys, it is clear that she had funded other
litigation between the parties prior to 2025. It there was a genuine, bona fide defence,
the rescission application ought to have been pursued as a matter of priority.
[57] There is also no indication that Mr. Masekela intended to seek rescission of the Default
Judgment, or that the Applicant was aware of any such intention.
[58] The Liquidation and Distribution Account of Mr. Masekela's estate dated 9 November
2023 furthermore reflects the indebtedness to the Toto estate in the amount of
R1 114 495.67.36 Even the Amended Liquidation and Distribution Account dated
23 February 2024 reflects this indebtedness.37 This is a definitive and certain indicator
of the Applicant's acknowledgment of Mr. Masekela's indebtedness to the Toto estate
and acceptance of the Default Judgment.
[59] Additionally, the Applicant during April 2024 also entered into a settlement agreement
with the Respondent where Mr. Masekela's indebtedness to the Toto estate was also
admitted in the amount of R1 114 495.67.38
[59.1] The settlement agreement contains a paragraph which reads:
"AND WHEREAS the Estate of the Late Mabusha Bigvai Masekela is
liable to the Estate of the Late Toto Maria-Madi Masekela in the amount
of Rt 114 495.67 (One Million, One Hundred and Fourteen Thousand,
Four Hundred and Ninety-Five Rands and Sixty-Seven Cents) by virtue
Four Hundred and Ninety-Five Rands and Sixty-Seven Cents) by virtue
36 015-69
37 015-77
38 015-183
11
of a default judgement that was granted against the Late Mabusha Bigvai
Masekela under case number 19373/2020/' 39
[60] In Nale Trading CC v Freyssnet Posten (Pty) Ltd4° Minnaar AJ, held that a person will
be in wilful default if the following can be shown:
[60.1] knowledge that the action is being brought against him or her;
[60.2] a deliberate refraining from entering an appearance, though free to do so
and
[60.3) a certain mental attitude towards the consequences of the default.
[61] It is clear that Mr. Masekela never disputed the indebtedness. To the contrary, he
acknowledged same and conveyed that he planned to pay the debt.
[62] Despite personal service of the Summons and Notice of Set downs on Mr. Masekela
he sought not to defend the action. His actions are consistent with an individual who
acknowledged and was aware of his indebtedness to the Toto estate.
[63] Mr. Masekela had personal knowledge of the action and deliberately refrained from
opposing same though he was free to do so.
[64] The Applicant's delay in bringing the application was explained as follow:
[64.1] Mr. Masekela died on 24 June 2022, five (5) months and two (2) days
after the judgment was granted against him. He was ill.
[64.2]
[64.3]
[64.4)
39 015-183
There was no executor of the deceased's estate from 24 June 2022
to 25 July 2022.
The Applicant, as executrix became aware of the Default Judgment
on 19 October 2022.
By 26 May 2023, the Applicant was financially able to instruct her
attorneys.
40 2021 JDR 2153 (GJ).
12
[64.5] The Applicant however only on 11th day of February 2025 instructed
her attorneys to proceed with the rescission application.
[65] The Applicant became aware of the Default Judgment on 19 October 2022, but only
proceeded with rescission on 11 February 2025, some two years and four months
later. Although she raised financial constraints, she had earlier opportunities to act,
having already litigated against the Respondent and her family during 2023 and 2024.
[66] If there was a genuine and bona fide intention to bring a recission application the
Applicant, represented by her attorneys, had to know and appreciate that time was of
the essence. I am of the firm opinion that the delay is insufficiently explained in light
of:
[66.1] Mr. Masekela's failure to act after the judgment was granted and
[66.2] the earlier history of litigation between the Applicant and the
Respondent.
[67] Mr. Masekela had an opportunity to seek a rescission, as he died only four months
after the judgment was granted. The application does not explain why he failed to do
so. His alleged illness is simply not enough reason for not proceeding with a rescission.
The only inference to be drawn is that he did not seek rescission because he knew he
was indebted to the Toto estate. He never disputed that indebtedness, and his conduct
confirms his awareness of the debt.
[68] As a defence, the Applicant sets out that Mr. Masekela as the executor of the estate
had an amount of R1 346 370 .88 (One Million, Three Hundred and Forty-Six
Thousand, Three Hundred and Seventy Rand and Eighty-Eight Cents) for
distribution.41 The late Toto had died intestate, and her estate was to be administered
in terms of the Intestate Succession Act 81 of 1987 to her surviving descendants being
her son, the Late Mr. Masekela and her two grandchildren' being Ayanda Raisebe
Masekela (the Respondent) and Kagiso Selma Masekela. Whilst Mr. Masekela was
41 CVN 7 at 015-39
13
still alive, as the then Executor of the Estate of Toto and being an heir of the said
estate, he distributed to himself his share of the inheritance.
[69] The Applicant asserts that in terms of the Intestate Succession Act 81 of 1987, the
Toto Estate was to be divided as follows:
[69.1] 50% of the Estate was to be distributed to the late Mr. Masekela in the
amount of R673 185.44(Six Hundred and Seventy-Three Thousand, One
Hundred and Eighty-Five Rand and Forty-Four Cents);
[69.2] 25% of the Estate was to be distributed to the Respondent in the amount of
R336 529. 72 (Three Hundred and Thirty-Six Thousand, Five Hundred and
Twenty-Nine Rand and Seventy- Two Cents) and
[69.3] 25% of the Estate was to be distributed to Kagiso Selma Masekela in the
amount of R336 529. 72 (Three Hundred and Thirty-Six Thousand, Five
Hundred and Twenty-Nine Rand and Seventy- Two Cents)
[70] The Applicant pleads that the amount therefore claimable by the Respondent and
Kagiso Selma Masekela is therefore R673 185.44 (Six Hundred and Seventy-Three
Thousand, One Hundred and Eighty-Five Rand and Forty-Four Cents) being their
share of the inheritance or alternatively R441 310.23(Four Hundred and Forty-One
Thousand, Three Hundred and Ten Rand and Twenty-Three Cents), being the Default
Judgment award minus the Late Mr. Masekela's inheritance.
[71] The Applicant concluded that it is very evident that the Respondent and her brother
erroneously sought not only their inheritance, but they also sought the inheritance of
the Late Mr. Masekela which he had already distributed to himself. This much the
Applicant pleads, is evident on the Liquidation and Distribution Account presented
before the Court.
[72) The Applicant pleaded that the Respondent insisted that she was entitled to the full
amount, the deceased (Mr. Masekela) was not present to correct her inaccurate
assertion, and this had led the Court to grant the Respondent an award higher than
what she is actually entitled to.
14
[73] The Default Application was brought by the Respondent in her capacity as executrix
of the Toto estate. In that role, she was responsible for administering the estate,
including collecting its assets and debts, settling liabilities, and distributing the
remaining property to the beneficiaries in accordance with the will or applicable law.
[74] The Respondent was accordingly collecting Mr. Masekela's indebtedness due to the
Toto estate. It is trite that the assets of a deceased estate do not belong to the
executrix nor to the beneficiaries or heirs until they vest in such beneficiaries upon the
confirmation of the Liquidation and Distribution Account by the Master of the High
Court.
[75] The legal position in respect of the vesting of the assets of a deceased's estate is set
out in De Leef Family Trust and Others v Commissioner for Inland Revenue42 where
the Appeal Court, held as follow:
"Besides, according to our modern system of administration of deceased estates, the
heir or legatee of an unconditional bequest obtains a vested right (dies cedit) to be
entitled to the bequest on the death of the testator (a morte testatoris). Such a right is
transmissible but his claim is enforceable only at some future time when the executor 's
liquidation and distribution account has been confirmed (dies venit). He then has an
enforceable right to claim payment, delivery or transfer of his bequest (ius in personam
ad rem acquirendam). Estate Smith v Estate Follett 1942 AD 364 at 383, Greenberg
and Others v Estate Greenberg 1955 (3) SA 361 (A) at 364, Secretary for Inland
Revenue v Estate Roadknight and Another (supra). It is pointed out in The Law of
Succession in South Africa (1980) by Corbett, Hahlo, Hofmeyer and Kahn at 164 note
176 that, although these judgments speak of 'confirmation' of estate accounts by the
Master, no provision is made for confirmation, as such, in the Administration of Estates
Act 66 of 1965 (nor was there any such provision in the previous Act 24 of 1913). It is
Act 66 of 1965 (nor was there any such provision in the previous Act 24 of 1913). It is
suggested that 'confirmation' in this context should be taken as a reference to the fact
that the accounts had lain for inspection, without objection, for the statutory period.
42 1993 (3) SA 345 (A)
15
See also Meyorowitz in his Law and Practice of Administration of Estates 5th ed at
261." (my emphasis)
[76] It follows from the above that heirs do not acquire ownership of a deceased estate's
assets merely upon the death of the person from whom they inherit. They acquire only
a vested personal claim against the executor for payment, delivery, or transfer of the
inheritance, and that claim becomes enforceable only once the liquidation and
distribution account has been confirmed. An heir becomes owner of movable property
only upon delivery, and of immovable property only upon registration. The same
applies to a legatee. Accordingly, under the modern law, a beneficiary holds only a
personal right, jus in personam ad rem acquirendam, against the executor and does
not acquire ownership by virtue of a will alone. Ownership, or any lesser real right such
as a usufruct, is acquired only upon delivery or transfer pursuant to testamentary
disposition or intestate succession. Succession is therefore merely a causa habilis, or
lawful basis, for the transfer of ownership.
[77] In light of the above, Mr. Masekela had no right to distribute the property to himself.
Similarly, the Respondent cannot take or claim ownership of the property until the Final
Liquidation and Distribution Account has been lodged with and confirmed by the
Master, after which distribution may lawfully take place.
[78] The Respondent sought payment into the Toto estate solely for its administration and
eventual distribution to the late Mr. Masekela according to his lawful entitlement.
[79] The application of the Intestate Succession Act relating to the distribution to the heirs
will only come into play once Mr. Masekela's indebtedness to the Toto estate had been
recovered and the Final Liquidation and Distribution Account confirmed by the Master.
The amount recoverable is therefore the full amount taken by Mr Masekela.
[80] The Applicant's defence that a lesser amount should have been recoverable by the
[80] The Applicant's defence that a lesser amount should have been recoverable by the
Respondent is incorrect, as Mr. Masekela took the amount of Rt 114 495.67 (One
Million, One Hundred and Fourteen Thousand, Four Hundred and Ninety-Five Rands
and Sixty-Seven Cents).
[81] The Applicant's defence is therefore unsustainable and must fail.
16
[82] The Applicant further knew of the Default Judgment on 19 October 2022 and must,
having been legally represented, known of the importance of bringing a rescission
application as soon as possible. The explanation of the Applicant's delay in bringing
this application is simply unsatisfactory in that:
[82.1] she fails to deal with the reason why Mr. Masekela did not bring a rescission
after the Default Judgment was granted - the mere indication that he was ill
is not sufficient reason for the failure to do so.
[82.2] failure to explain Mr. Masekela's deliberate refraining from appearing on the
day of Default Judgment to oppose the relief sought where he clearly was
served personally and had known of the date of Set down.
[82.3] she failed to explain why once she had funds to instruct attorneys in 2023,
she had not brought the rescission but had nevertheless engaged in other
litigation with the Respondent and her family.
[83] The Applicant furthermore acknowledged Mr. Masekela's indebtedness to the Toto
estate by the inclusion thereof in the Final Distribution and Liquidation Account of the
estate and also entered into a settlement agreement with the Respondent and her
family during April 2024 where the indebtedness was once more accepted.
[84] There is also the clear absence of a bona fide defence. Any allocation of the
distribution amount to the heirs in accordance with law of intestate succession would
only follow once all the debts due to the Toto estate was recovered. The Default
Judgment was obtained in the Respondent's capacity as executrix and not in her
personal capacity or as a beneficiary.
[85] The unsatisfactory explanation of the delay in bringing the recission application and
the lack of a bona fide defence are indicators that a recission cannot be granted in
terms of Rule 31 (2)(b) of the Uniform Rules of Court.
RULE 42(1 )(a)
[86] The next question to be considered is whether a rescission should be granted in terms
of Rule 42(1 )(a) of the Uniform Rules of Court.
17
[87] Rule 42(1 )(a) states 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-
(a) an order or judgment erroneously sought erroneously granted in the absence
of any party affected thereby."
[88] The purpose of a rescission under this Rule is to expeditiously correct an obviously
wrong judgment or order. Relief will only be granted if there was an irregularity in the
proceedings. The sub-rule applies typically to ex parte applications or other cases
where an affected party is absent, to bring the true facts to the court's attention.
[89] An order is erroneously granted if it was legally incompetent for the court to have made
such an order,43 if there was an irregularity in the proceedings or if the court was
unaware of facts which, if known to it, would have precluded it from a procedural point
of view from making the order.44
[90] The Applicant's only attempt at raising an error is found at paragraph 8.3.3 of the
Founding Affidavit, wherein the Applicant alleges that
' ... when the Respondent launched the Summons, she placed the facts in such a
manner that the Above Honourable Court was misled thinking she and her brother
were entitled to the full amount and thus an order for the full amount was erroneously
granted. '145
[91) The error raised cannot be accepted. The reason being that the Respondent sought
Default Judgment against the Applicant in her capacity as the executrix of the
deceased's estate. It was not brought by the Respondent in her personal capacity or
by her brother.
[92] Mr. Masekela did not dispute taking the amount of R1 114 495. 67. The alleged error
is therefore not an error: the executrix sought to recover the full amount taken by him,
43 Athmaram v Singh 1989 3 SA 953 (D) 956D-E.
44 Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimowitz 1996 4 SA 411 (C);
45 015-23
18
which was necessary to finalise the estate for distribution to the heirs after confirmation
of the Final Liquidation and Distribution Account.
[93] The amount claimed of R1 114 495.67 was not to be paid to the Respondent or her
brother directly, it was to be paid to the Toto estate for purposes of administration, this
is evinced by the Particulars of Claim as well as the court order by Molahlehi J.46
[94] In Zuma v Secretary of the Judicial Commission of inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including Organs of State47, the
Constitutional Court per Khampepe J for the majority had occasion to consider a
rescission in terms of Rule 42(1) as well as the common law and stated that:
"Mr Zuma 's purported absence is not the only respect in which his application fails to
meet the requirements of rule 42(1) (a). He has a/so failed to demonstrate why the
order was erroneously granted. Ultimately. an applicant seeking to do this must show
that the iudgment against which they seek a rescission was erroneously granted
because "there existed at the time of its issue a fact of which the Judge was unaware.
which would have precluded the granting of the iudgment and which would have
induced the Judge, if aware of it. not to grant the iudgment"." (my emphasis)
[95] The Supreme Court of Appeal in Lodhi 2 Properties investments CC and Another v
Bondev Developments (Pty) Ltd48 held that:
"Similarly, in a case where a plaintiff is procedurally entitled to judgment in the absence
of the defendant the judgment if granted cannot be said to have been granted
erroneously in the light of a subsequently disclosed defence. A Court which grants a
iudgment by default like the iudgments we are presently concerned with. does not
grant the iudgment on the basis that the defendant does not have a defence: it grants
the judgment on the basis that the defendant has been notified of the plaintiff's claim
the judgment on the basis that the defendant has been notified of the plaintiff's claim
as required by the Rules. that the defendant. not having given notice of an intention to
defend, is not defending the matter and that the plaintiff is in terms of the Rules entitled
to the order sought. The existence or non-existence of a defence on the merits is an
46 000-4
47 2021 JDR 2069 (CC).
48 2007 (6) SA 87 (SCA
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irrelevant consideration and, if subsequently disclosed, cannot transform a validly
obtained iudgment into an erroneous iudgment." (my emphasis)
[96] The Respondent was procedurally entitled to seek the order and there was no error in
the granting thereof. Mr. Masekela at no point in time disputed the indebtedness and
also, as mentioned here in before, failed despite personal service to defend the
Respondent's action. The Applicant, in subsequently raising, what she alleged a
defence, is accordingly an irrelevant consideration and does not affect and transform
the validity of the default judgment obtained into one obtained in error.
COMMON LAW:
[97] The last ground for recission to be considered is whether the Default Judgment can
be rescinded in terms of the common law.
[98] At common law a court is entitled to rescind a judgment obtained in default of
appearance provided sufficient cause is shown. This includes:
[98.1]
[98.2]
a reasonable and acceptable explanation for the default and
that on the merits the party has a bona fide defence. 49
[99] The application of this principle is limited to those few cases where the application
does not fall strictly within the limits of Rule 31 or Rule 42.
[100] As a general rule a party cannot have a judgment set aside on the basis of evidence
that was or ought to have been available to him or her before judgment. 50
49Oe Wet v Western Bank Ltd 1979 2 SA 1031 (A) 1042; Chetty v Law
Society , Transvaal 1985 2 SA 756 (A) 764
50 cTP Ltd v Independent Newspaper Holdings Ltd 1999 1 SA 452 (W) 462 .
20
[101] This court has dealt with the fact that the delay in bringing a Recission Application was
not adequately explained in that:
[100.1]
[100.2]
it does not account for and relay why Mr. Masekela failed to bring a
recission, the mere suggestion of his illness is simply not sufficient;
the Applicant as executrix of the Toto estate had obtained knowledge on
19 October 2022. By 26 May 2023, the Applicant was financially able to
instruct her attorneys. The Applicant however only on 11th day of February
2025 instructed her attorneys to proceed with the rescission application.
Yet, there was funding for other litigation between the Applicant,
Respondent and her brother.
[100.3] the Applicant's Final Liquidation and Distribution account reflects
Mr. Masekela's indebtedness by virtue of the Default Judgment;
[100.4] the Applicant had settled other litigation between the Applicant and the
Respondent and her family by acknowledging the Default Judgment and
Mr. Masekela's indebtedness to the Toto estate.
[101] The object of rescinding a judgment is to ensure that a chance to air a real dispute is
restored.51 In this matter the defence raised is not bona fide in light of the
acknowledgment of the indebtedness by both Mr. Masekela and the Applicant as
referenced herein before.
[102] Mr. Masekela passed away on 24 June 2018. He had no defence to the action and in
this respect did not defend same.
[103] The Applicant is aware of the absence of a defence as she acknowledged the
indebtedness as manifested in the Final Liquidation and Distribution Account and also
in the settlement agreement with the Respondent and her family.
51 Saphula v Nedcor Bank Ltd 1999 (2) SA 76 (W) at p79B-C
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[104] The amount awarded under the Default Judgment belongs to the Toto estate before it
can vest in any heirs. It may vest only after the Master of the High Court has accepted
the Final Liquidation and Distribution Account and authorised distribution. Accordingly,
there is no sustainable and valid basis to contend that the claim amount belonged to
the heirs before vesting.
[105] In light of the above, the intention to reopen the litigation not only delays the
administration of the estate, but it will not result in a different conclusion than the one
already in existence, being that the Toto estate shall retain a right of claim against
Mr. Masekela's estate for the claimed amount.
CONCLUSION:
[106] In my view the history of the litigation, to which I have referred, demonstrates the
absence of any clear intention and determined effort on the part of either Mr. Masekela
or the Applicant to earnestly pursue the rescission
[107] The Applicant has failed to explain:
[107.1]
[107.2]
[107.3]
[107.4]
why the action despite personal service was allowed to go by default in
the first place;
Mr. Masekela's or her delay as executrix in launching the rescission
application;
why the indebtedness arising from the default judgment was included in
the Final Liquidation and Distribution Account and
why the indebtedness was admitted for settlement purposes.
[108] In the circumstances, the ineluctable conclusion is that the Applicant is not serious
about defending the action: her conduct points to a concerted effort to delay and
protract the recovery of the amount and the administration of Mr. Masekela's estate.
[109] I conclude that the Applicant's application for rescission is not bona fide, as neither
Mr. Masekela nor the Applicant had and have a genuine wish to put forward a bona
fide defence to the action. The rescission application is merely part of an
22
overall modus operandi aimed at delaying and frustrating the Respondent's claim
against the Toto estate.
[110] In all the circumstances, given my findings with regard to the Applicant's failure to put
up a satisfactory explanation for Mr. Masekela and her own default, her lack of
prospects of success in defending the Respondent's action, and her lack of bona
fides in bringing the recission application, I conclude that the Applicant has not made
out a proper case for the granting of the remedy of rescission.
[111] The rescission application therefore falls to be dismissed.
COSTS:
[112] It is an established law that the general principle for awarding costs to a successful
party is to indemnify such party for the expenses to which the party has been put
through as a result of being compelled to either initiate or defend litigation.52
[113] In simple terms, costs should follow the event.
[114] The Applicant could not establish a valid basis for rescission. On this ground alone,
the general rule imputes liability of costs of this application on the Applicant.
[115] Mr. Masekela had no defence against the action, to the contrary, he admitted the
indebtedness. The Applicant, legally represented, must similarly have known that
there is no defence that is available against the claim. The Applicant's
acknowledgment and admission of the indebtedness as reflected in the Final
Liquidation and Distribution Account and her admission of liability in a settlement
agreement between the Applicant and the Respondent and her family point to the clear
absence of a defence to the action.
52 Texas Co SA Ltd v Cape Town Municipality 1929 AD 467 at p.488
23
[116] Nevertheless, the Applicant pursued a rescission application which had no reasonable
prospect of success. The Respondent furthermore did not litigate in her own personal
capacity, but as the executrix of the estate to gather all the assets and indebtedness
to the estate. The heirs to an estate are also only entitled to their inheritance once the
Final Liquidation and Distribution Account had been approved by the Master.
[117] The Applicant's rescission application is an abuse of court process and, I consider that
the only fitting costs order is a punitive costs order on the scale of attorney and client.
[118] The Applicant will therefore be ordered to pay the Respondent's costs of the rescission
application on the attorney and client scale.
Order
1. The Rescission Application is dismissed with costs on an attorney and client
scale.
For the Applicant:
Adv SM Nkabinde
082 712 0145
Instructed by
Tuso Attorneys Inc
shane@tusolaw .co.za
For the Respondent:
Adv C Malatji
clemond@maisels .co.za
071 176 7965
Instructed by
Matsemela, Krauses & Ngubeni Inc
litigation1 @mkninc.co.za
S VAN ASWEGEN
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
24