REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024-006331
In the application between:
SCHINDLERS ATTORNEYS APPLICANT
and
TALITA CECILIA MYBURGH FIRST RESPONDENT
MARC ROLAND MARAIS SECOND RESPONDENT
In re:
TALITA CECILIA MYBURGH APPLICANT
and
MARC ROLAND MARAIS FIRST RESPONDENT
SCHINDLERS ATTORNEYS SECOND RESPONDENT
This judgment is handed down by the Judge whose name is reflected herein, and is
submitted electronically to the parties or their legal representatives by email. It is
further uploaded to the electronic file of this matter on CaseLines. The date of hand -
down is deemed to be 24 August 2026.
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
__ _
GARVEY AJ 24 AUGUST 2026
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ORDER
1. The late delivery of the first respondent 's answering affidavit and of the
applicant's replying affidavit in this application is condoned.
2. The first respondent is directed to furnish security for the applicant's costs in
the main application under case number 2024 -006331, in the amount of
R 200 000, within 10 days of the date of this order, in the form and manner
directed by the Registrar.
3. The main application remains stayed pending compliance with paragraph 2 of
this order.
4. Should the first respondent fail to comply with paragraph 2 of this order, the
main application shall, without further order, stand dismissed as against the
applicant, with costs, including reserved costs, on scale B.
5. The first respondent is ordered to pay the applicant’s costs of this application
on scale B.
JUDGMENT
GARVEY AJ
Introduction
[1] The applicant herein, Schindlers Attorneys, is the second respondent in the
main application. The main application was brought under this case number by
Ms Talita Cecilia Myburgh , who is the first respondent herein . Schindlers
Attorneys applies under rule 47(4) of the Uniform Rules of Court for the
dismissal of the main application as against it, Ms Myburgh having furnished no
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part of the R 200 000 security for its costs as ordered by Crutchfield J on
12 September 2024.
[2] Ms Myburgh, who appears in person, concedes the default and gives no
undertaking to comply by any date. She says the main application is
meritorious, her want of funds is the respondents' doing, and she needs time to
sell antiques and a Clarice Cliff pottery collection at a specialist auction. She
asks for dismissal of this application, alternatively an exte nsion. No relief is
sought against the second respondent, Mr Marc Roland Marais, who took no
part herein.
Background
[3] In January 2024 Ms Myburgh sued Mr Marais and the applicant jointly and
severally, on motion, for maintenance and various living expenses, including
arrears of R 606 000, founded on a cohabitation and maintenance agreement
concluded, she says, with Mr Marais. The applicant is no party to that
agreement. She holds it liable for repudiating a professional mandate, which it
denies. I express no view on those merits.
[4] A rule 47(1) demand of 16 February 2024, based on Ms Myburgh's own
account of her distressed finances and the contention that her claim is
vexatious, put up no security and no contesting affidavit. On
12 September 2024, on notice to her but in her absence, Crutchfield J directed
payment of security of an amount of R 200 000 within 10 days, stayed the main
application pending payment, granted leave to seek dismissal on these papers
on continued default, and ordered costs. That order stands and binds her.
[5] The Registrar determined the amount on 25 February 2025. The time for
compliance expired, at the latest, on 27 March 2025, and nothing has been
paid. This application followed on 5 June 2025 and was heard on 8 June 2026,
the delay owed to a late answering affidavit, a condonation application and
heads of argument produced only under compulsion.
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[6] Ms Myburgh's answering affidavit was late on an extended timetable . The
applicant's replying affidavit was late by three days and fully explained. Neither
delay caused prejudice, and the interests of justice ( see Van Wyk v Unitas
Hospital 2008 (2) SA 472 (CC) at para 20) favour deciding the matter on the full
record. Both late deliveries are condoned.
The legal framework
[7] Rule 47(4) empowers the court, " if security be not given within a reasonable
time", to "dismiss any proceedings instituted or strike out any pleadings filed by
the party in default, or make such other order as to it may seem meet ". The
power is discretionary, and dismissal is but one of a range of responses. It is
an extreme measure, adopted sparingly and only where no lesser remedy will
adequately protect the secured party ( see Wallace NO v Commercial Union
Insurance Co of SA Ltd 1999 (3) SA 804 (C) at 809I–810B), the discretion being
exercised with regard to equity and fairness to both parties.
[8] Two constitutional themes pull against each other. The first is access to courts,
where dismissal closes the court's doors without adjudication of the merits, so
the potential injustice to a claimant barred from a legitimate claim must be
balanced against that to a defendant left with an irrecoverable bill of costs
(Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) at para 8).
Second is the authority of the courts, where orders bind until set aside, and the
rule of law requires that the dignity and authority of the courts be upheld (Pheko
v Ekurhuleni Metropolitan Municipality (No 2) 2015 (5) SA 600 (CC) at para 1).
Discussion
[9] The default is conceded, serious and long-standing. By the hearing, 21 months
had passed since the order, and 14 days since the final date for compliance.
There was not a rand put up, no tender made, no date proffered.
[10] The explanation is impecuniosity, blamed on financial abuse by Mr Marais,
[10] The explanation is impecuniosity, blamed on financial abuse by Mr Marais,
facilitated by the applicant's alleged breach of mandate. Her heads sought
leave to liquidate assets by 30 March 2026. That date passed with nothing paid.
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No auction date, consignment, valuation or part payment was shown . T he
request for time is open-ended.
[11] Much of her answer and argument attacked the merits of the main application
and the respondents' attorneys, culminating in a prayer for costs de bonis
propriis and referral to the Legal Practice Council. These miss the mark . The
order stands, its correctness is not before me, and conviction that it should not
have been granted is no licence to ignore it. Both invitations are declined.
[12] The applicant has established the footing for rule 47(4) relief, and its prejudice
is real. Staged enforcement, at its own cost, against an opponent who on her
own version cannot meet a costs order, under a claim pending indefinitely. Her
inability underscores the very risk the security was ordered to meet.
[13] Three considerations dissuade me from finally closing the court's doors quite
yet. Ms Myburgh, although claiming to be a lay litigant, holds legal qualifications
and told me she served a term of articles. The papers filed by her were of a high
standard. Because her claims concern the maintenance and accommodation
of her minor children, a court should be slow to non -suit her for a procedural
default. Moreover, given her antiques trade, her assertion of realisable assets
sufficient to cover the amount is not implausible . The stay has meanwhile
shielded the applicant from the costs of the merits . Security is protective, not
punitive.
[14] Against this stand the long-conceded default, her own deadline unmet, her
disregard of time limits throughout, and the applicant's indefinite unsecured
exposure. The just and equitable order , the order " meet" within rule 47(4),
affords a final, fixed and short opportunity to comply, on pain of automatic
dismissal. The door stays open a little longer for one who says she can pay if
given time, while this court's order is not further flouted. Ten days is ample, as
the amount has been fixed since 25 February 2025.
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[15] The striking out of parts of the answering affidavit, pressed in the applicant's
heads under rule 6(15) but sought in no notice, needs no order, as it is irrelevant
matter to this application, and I have simply disregarded same.
Costs
[16] The applicant has been substantially successful and costs follow the result, on
scale B as sought. Should the security not be furnished, the dismissal must
also carry the costs of the main application as against the applicant, including
all reserved costs. In the result, the following order is made:
1. The late delivery of the first respondent's answering affidavit and of the
applicant's replying affidavit in this application is condoned.
2. The first respondent is directed to furnish security for the applicant's
costs in the main application under case number 2024 -006331, in the
amount of R 200 000, within 10 days of the date of this order, in the form
and manner directed by the Registrar.
3. The main application remains stayed pending compliance with
paragraph 2 of this order.
4. Should the first respondent fail to comply with paragraph 2 of this order,
the main application shall, without further order, stand dismissed as
against the applicant, with costs, including reserved costs, on scale B.
5. The first respondent is ordered to pay the applicant’s costs of this
application on scale B.
_______ _____
CB GARVEY
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION
JOHANNESBURG
Date of hearing: 8 June 2026
Date of judgment: 24 August 2026
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Counsel for the applicant: Adv L Matsiela
Instructed by: Eversheds Sutherland Inc.
First respondent: In person
Second respondent: No appearance