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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NA TAL DIVISION, PIETERMARITZBURG
In the matter between:
MANOJ SEWAK MAHARAJ N.O.
MANJ SEWAK MAHARAJ
KIRAN SEWAK MAHARAJ
SIMLA REDDY
AND
Case no: 17229/2023P
FIRST PLAINTIFF/RESPONDENTS
SECOND PLAINTIFF/RESPONDENTS
THIRD PLAINTIFF/RESPONDENTS
FOURTH PLAINTIFF/RESPONDENTSS
THE MASTER OF THE HIGH COURT, DURBAN
FIRST DEFENDANT/APPLICANT
THE MINISTER OF JUSTICE & CORRECTIIONAL SERVICES
SECOND DEFENDANT/APPLICANT
STANLIB FUNDS LIMITED
THE STANDARD BANK OF SOUTH AFRICA LIMITED
LEAVEil GORDON LESLIE
JUDGEMENT
THIRD DEFENDANT
FOURTH DEFENDANT
FIFTH DEFENDANT
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P. BEZUIDENHOUT J.:
[1] The First and Second Defendants (Defendants) seek an order in terms of Rule
31 (2)(b) setting aside the default judgment granted against them on 22 April 2025 joint ly
and severally with Fifth Defendant. They also seek condonation for the late filing of the
rescission application .
[2] As this matter has a long history it is necessary to set out the timeframe in this
matter.
[3] Summons was served on First Defendant on 27 November 2023 and on Second
Defendant on 23 November 2023. No notice to defend was received and the default
judgment was then set down for 22 April 2025.
[4] The notice of set down of the default judgment was served on First Defendant on
7 February 2025 and for Second Defendant on 3 March 2025 on the State attorney. There
was no opposition and Default judgment was then granted on 22 April 2025.
[5] It is contended by Defendants that following service of the summons the matter
was referred internally for legal attention on 11 December 2023 and that the summons
and documents were transmitted to the State attorney on 11 December 2023.
[6] During December 2024 officials from Defendants made enquiries regarding the
handling of the matter. Additional enquiries were directed to the State attorney during
March 2025 . On 3 December 2024 Mr. Hlatshwayo the previous handler left, the State
attorney and Defendants then asked which State attorney worked with the matter. On 25
March 2025 a further letter was sent to the State attorney and on 26 March 2025 the State
attorney requested a case number.
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[7] Notice of set down was served on a Ms AL Naidoo an employee of First Defendant
on 7 February 2025 and on the State attorney in respect of Second Defendant .
[8] Defendants became aware of the default judgment on 14 May 2025 after receiving
a letter from Plaintiffs attorney and initiated steps to seek rescission thereof.
[9] It is contended by Defendants that the failure to enter an appearance to defend
arose from administrative failure after instructions had been issued to the State attorney.
They were under the bona fide but mistaken belief that the matter was being defended. It
is submitted that it is a reasonable explanation for the default.
[1 0] It is contended on behalf of Plaintiffs that summons was served on 27 November
2023 and that it was then sent to the State attorney on 12 December 2023. Accordingly
on that date First Defendant was aware of the summons. It was further submitted that
there was no prejudice to Plaintiffs serving the summons on the State attorney as per
section 2(2)(b) of the State Liability Act 2020 of 1957 as it was held in the case of the
Minister of Police v Miya 2025 (3) SA 130 (SCA) that it was sufficient as it is apparent from
the documentation and the affidavits that the State attorney did later act thereon.
[11] The notice of set down for default judgment was served upon First Defendant on
7 February 2025 and on the State attorney on 3 March 2025 . There were emails between
the State attorney and Defendants on 25 and 26 March 2025.
[12] It was submitted that Defendants failed to exercise due care by regularly following
up with the State attorney to ensure that the matter is dealt with. No explanation has
been provided as to the conduct of the State attorney.
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[13] In respect of the condonation for the late filing of the application to have the
judgment rescinded it is submitted that Defendants became aware of the judgment on
14 May 2025. On 16 May 2025 the State attorney was advised of the default judgment
and instructed to rescind the judgment. The rescission application was only served on 1
August 2025, seven weeks later . It was submitted that no proper and full explanation for
the seven week delay is provided. It was contended that despite the urgency two weeks
was taken to arrange a consultation with counsel because the State attorney was
involved in an urgent matter. It then took a further five weeks for the rescission pape rs to
be finalised. It was further submitted that Defendants have not furnished explanations
in respect of both the default and condonation sufficiently to enable the court to assess
their conduct and motives. Defendants attribute all the delays to the office of the State
attorney. This however has not been inadequately explained.
[14] Although the notice of set down of the default judgment was served on the
Master 's office on 7 February 2025 and on a Ms Naidoo no affidavit is provided from her
as to what happened with the notice of set down and why it was not brought to the
attention of First Defendant as Defendants allege they only became aware of the
judgment on 15 May 2025. Judgment having been granted on 22 April 2025.
[15] The claim of Plaintiffs arises from the estate of one Gyanmatha Maharaj who died
on 6 January 2021. It is contended that First Defendant and its staff had failed to issue
the necessary letters of executorship and further that a fraud was committed in the office
of First Defendant alternatively that they failed to exercise reasonable care and diligence
and acted negligently in appointing Fifth Defendant as the executor of the estate who was
not related to the deceased at all and who produced a false Will. As a result of his
not related to the deceased at all and who produced a false Will. As a result of his
appointment he withdrew from the estate account the amount of R845 000.00 which was
in the estate resulting from policies which had been paid out into the estate account. It
is alleged that Plaintiff s accordingly suffered a loss in the sum of R826 362.89 due to the
conduct of First Defendant.
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[16] On 22 April 2025 judgment was entered against First , Second and Fifth
Defendants in the sum of R826 362.89 together with interest on the said amount at the
legal rate from 9 July 2021 and costs of suit on the attorney and client scale.
[17] It is against this order that First and Second Defendant have brought this
application to have it rescinded in terms of Rule 31 (2) of the Rules of this Court.
[18] It is contended by Plaintiffs that on 20 January 2021 one Janice Sellick delivered
documents to the Master 's office requesting letters of executorship. This included the
original Will of the deceased an inventory etc. Receipt of the letter and documents was
acknowledged by First Defendants as appears from their stamp dated 20 January 2021.
First Respondent was later not prepared to accept or appoint the executor and asked that
the documents be uplifted and they obtain nominations from Third and Fourth Plaintiffs .
On 23 March 2021 the attorney handed signed nominations as requested from the two
additional persons . This was accepted by First Respondent as appears from its stamp.
[19] On 25 February 2021 First Defendant accepted a Will and inventory etc. from
another person. It was an undated Will. This was from Fifth Defendant who is totally
unknown to Plaintiffs and is in no way related to any of them . Fifth Defendant was
appointed as executor in terms of the undated Will on 15 April 2021. He then withdrew
the sum of R826 362.89.
[20] It is contended by Defendants that the documentation initially submitted by
Pla intiff' s was re turn e d a fte r queries were raised by the Master's office . Th e esta t e h ad
not yet been registered when Plaintiffs initially submitted the documentation . There was
a backlog at the Master 's office at the time and when the Will of Fifth Defendant had been
accepted there was no knowledge of Plaintiffs involvement in the estate. There was no
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official who knowingly facilitated the fraud perpetrated by Fifth Defendant. It was
submitted that Plaintiffs allegations of complicity was speculative. It was further
contended that the documentation could not only have been obtained at the Maste rs
office but that Plaintiffs had transmitted the death certificate and identity document of
the deceased to Third and Fourth Defendants. It was contented that Fifth Defendant was
an employee of Fourth Defendant and accordingly could have had knowledge of the
estate and therefore the information could not only have been emanated from the
Master's office. This was only raised in Defendants replying affidavit.
[21] It is contended that Defendants must merely establish a bona fide defence with
some prima facie prospects of success. It was further submitted that the Will which was
accepted was registered by the Master. Letter of executorship was issued pursuant
thereto and that was normal administrative action. Although Fifth Defendant was
removed as executor the disputed Will itself was not declared invalid or set aside. It was
submitted that as the Master had accepted the Will it was functus oficio and could not
rescind it. It was also submitted that Plaintiffs did not comply with section 2 of the State
Liability Act. This issue has been dealt with above.
[22] It was submitted that the interests of justice favours the rescission of the
judgment and that these issues which were raised on the papers require to be ventilated.
It was submitted that Plaintiffs would suffer no irreparable harm or prejudice if the matter
proceeds to trial.
[23] In terms of Rule 31 (2)(b) for rescission a reasonable explanation must be provided
for the default and it must be a bona fide application and there must be a bona fide
defence.
[24] The various delays in doing anything in this case are factors to be considered in
considering the explanation for the default.
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[25] In the matter of Grant v Plumbers Pty. (Ltd) 1949 (2) SA 470 (0) it was held that in
an application to have a judgment rescinded the applicant must give a reasonable
explanation for the default. If it appears that the default was wilful or due to gross
negligence the court should not come to their assistance. It must be a bona fide
application and not merely for delaying and must show that there is a bona fide defence
to the claim. This requirement has been repeated in various other decision at a later
stage.
[26] In the present matter there was a long time delay from service of the summons
until the granting of the default judgment. It was only on 3 December 2024 a year after
summons was served that enquiries were made. On 7 February 2025 the notice of set
down was served on First Defendant's offices and on the State attorney in respect of
Second Defendant. On 25 March it was enquired from the State attorney by the Master
who the State attorney was attending to the matter. There was then correspondence
between them. On 22 April 2025 default judgment was granted. On 14 May 2025 First
and Second Defendants became aware of the judgment and then only on 1 August 2025
brought an application for rescission.
[27] There is no explanation by Ms. Naidoo as to what she did with the notice of set
down. Defendants only became aware of the judgment when Plaintiffs made enquiries .
[28] A period of seven weeks elapsed from the time Defendants became aware of the
judgment until the application was brought. The explanations for the delay are
inadequate. The fact that the person at the office of the State attorney was busy is not
sufficient reason not to comply with time limits. The time from becoming aware of the
default judgment is explained merely by stating that the State attorney was busy with an
urgent matter. That is not a reason to ignore the matter or not to communicate with the
other party. The application was brought in terms of Rule 31 (2)(b) and accordingly the
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provisions thereof had to be complied with. One of the first requirements as mentioned
above is an explanation which must not ind icate negligence on the part of the applicant.
In my assessment, especially considering the delay and the reason therefore, it would
appear that there was negligence on the part of Defendants.
[29] On 20 January 2021 Plaintiffs attorney provided First Defendant with a Will, death
certificate, inventor y etc. as appear from their letter which was accepted by First
Defendant and stamped by it. Further nominations were requested by Fist Defendant
which was provided on 19 March 2021 and acceptance acknowledged by stamping it.
[30] On 25 February 2021 First Defendant accepted a death notice and an unsigned
Will from one Derek Govender attorneys and on 15 April accepts the said Will and
appoints the executor in the undated Will.
[31] It must have been apparent to First Defendant if they kept accurate records as they
should that on 20 February 2021 a Will and other documents had been filed . Then five
days later they accepted an unsigned Will from another party in respect of the same
deceased. After Plaintiffs filed the additional documents requested by First Defendant
during March 2021 which First Defendant acknowledged. First Defendant accepted the
undated Will on 15 April 2021 and appointed an executor. This was all after they had
received the documents from Plaintiffs. If they kept accurate records it should have been
apparent to them that a Will etc. had already been filed. There is nothing in the paper that
the Will was rejected by First Defendant .
[32] Having considered the delay and the merits of the case I am not satisfied that
Defendants have made out a case for the relief claimed.
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The application is dism issed with costs such costs to be on sca le B.
PC BEZUIDENHOUT J.
JUDGMENT RESERVED:
JUDGMENT HANDED DOWN:
COUNSEL FOR PLAINTIFFS:
Instructed by:
11 JUNE 2026
19 AUGUST 2026
A CAMP
Janice Sellick Attorneys
Kloof
Tel: 031 764 7363
Ref: J E Sellick/ss/M216
c/o: Viv Greene Attorneys Inc.
Pietermaritzburg
Tel: 033 342 2766
Email: kerisha@vglaw.co.za
Ref: V Greene/ks/MAT4609
COUNSEL FOR DEFENDANTS: S MOOLA
Instructed by: Assistant State Attorney (KZN)
Durban
Tel: 031/ 365 2500
Tel: 076 325 0904
Email: NduMazibuko@justice.gov.za
Email: ZiZwane@justice.gov.za
Ref: 116/001957
clo = State Attorney KZN
Pietermaritzburg
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